WFVN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 4864

WFVN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4864 (25 November 2020)
Division:GENERAL DIVISION
File Number: 2020/5327
Re:WFVN
APPLICANT

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

DECISION
Tribunal:Member S Burford
Date:25 November 2020
Place:Perth

The decision of the delegate of the Respondent, dated 1 September 2020, not to revoke the cancellation of the Applicant’s Class WA Subclass 010 Bridging visa A is set aside and substituted with the decision that the cancellation of the Applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
...........[Sgd].............................................................
Member S Burford
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – offence of stealing as a servant – Direction No 79 – primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – best interests of 3-year-old son – expectations of the Australian community – practical effect of non-revocation of cancellation decision – valid protection visa application still on foot – non-refoulement – strength, nature and duration of ties to Australia – Applicant is a 40-year-old woman who arrived in Australia 10 years ago – extent of impediments if returned to Zambia – impact of COVID-19 pandemic – reviewable decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) – ss 36(2)(a), 36(2)(aa), 189, 197C, 198, 499, 499(2A), 500(1)(ba), 500(6B), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501E(2), 501F
Migration Regulations 1994 (Cth) – reg 2.12AA
CASES
Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117
AXT19 v Minister for Home Affairs [2020] FCAFC 32
AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451
BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456
BDQ19 v Minister of Home Affairs [2019] FCA 1630
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91
DOB18 v Minister for Home Affairs (2019) 269 FCR 636
DQM18 v Minister for Home Affairs [2020] FCAFC 110
EVK18 v Minister for Home Affairs [2020] FCAFC 49
FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294
FYBR v Minister for Home Affairs (2019) 272 FCR 454
GBV18 v Minister for Home Affairs [2020] FCAFC 17
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136
Minister for Home Affairs v HSKJ (2018) 266 FCR 591
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
Omar v Minister for Home Affairs [2019] FCA 279
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Yu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1002
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 65: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s 501 And Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018) – paras 6.1, 6.2, 6.3, 6.3(2), 6.3(6), 6.3(7), 7(1)(b), 8, 13(1), 13(2), 13.1(1), 13.1(2), 13.1.1(1), 13.1.1(1)(a), 13.1.1(1)(b), 13.1.1(1)(c), 13.1.1(1)(d), 13.1.1(1)(e), 13.1.1(1)(f), 13.1.1(1)(g), 13.1.1(1)(h), 13.1.1(1)(i), 13.1.2(1), 13.1.2(1)(a), 13.1.2(1)(b), 13.2, 13.2(4)(a), 13.2(4)(b), 13.2(4)(c), 13.2(4)(d), 13.2(4)(e), 13.2(4)(f), 13.2(4)(g), 13.2(4)(h), 13.3, 13.3(1), 14, 14(1), 14.1, 14.1(1), 14.1(2), 14.1(4), 14.2(1), 14.3(1), 14.4(1), 14.5(1), Part C
REASONS FOR DECISION
Member S Burford
25 November 2020
INTRODUCTION

This is an application for review of a decision made by a delegate of the Respondent

(the Delegate) on 1 September 2020 to refuse to revoke the cancellation of the Applicant’s Class WA Subclass 010 – Bridging visa A (the visa) under s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act).[1] This is the Reviewable Decision that is currently before the Administrative Appeals Tribunal (the Tribunal).
[1] R2, G8.
The Applicant is a 40-year-old citizen of Zambia. She arrived in Australia on a student visa on 18 July 2010. Her visa was mandatorily cancelled by a delegate of the Respondent on

24 April 2020 pursuant to s 501(3A) of the Migration Act (the Cancellation Decision)[2] following her conviction on 27 March 2020 in the District Court of Western Australia of ‘Stealing as a Servant’ for which she was sentenced to a term of imprisonment of 18 months.[3]
[2] R2, G43.
[3] R2, G9.
The Applicant is currently incarcerated in Western Australia and is eligible for parole in December 2020.[4]
[4] A1, para [30]; R2, G10, pages 57-58.
The issues for the Tribunal are whether it is satisfied the Applicant passes the character test and, if not, whether there is another reason why the mandatory cancellation of the visa should be revoked.
For the reasons below, the Tribunal has decided that the Reviewable Decision is set aside and substituted with the decision that the cancellation of the Applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Migration Act.
BACKGROUND FACTS
The Applicant arrived in Australia on 18 July 2010 on a Student (subclass 573) visa.[5] She was 30 years old at the time. She has a young child who is an Australian citizen and a child in Zambia who is now a young adult. She also has an Australian citizen partner.
[5] R2, G31.
The Applicant has not departed Australia since she arrived.[6] She applied for a further student visa on 15 March 2016 and that application was refused on 22 July 2016.[7] That decision was affirmed by the Tribunal on 19 April 2017. She applied for a Class XA subclass 866 Protection visa on 17 May 2017 and was granted an associated bridging visa.[8] That bridging visa is the visa which was the subject of the Cancellation Decision.
[6] R2, G31.
[7] A1, para [15].
[8] R2, G8, page 37.
As noted above, on 27 March 2020 in the District Court of Western Australia the Applicant was convicted of ‘Stealing as a Servant’. She was also ordered to repay the sum of $148,061 to the victim of the offence, her former employer.
The Applicant pleaded guilty to the offence. The sentencing judge found that between

22 December 2015 and 14 March 2018 she stole an amount of $148,061 from her employer, a privately owned aged care home.[9] The Applicant was convicted along with another employee who had held a payroll position and who had arranged for the transfer of amounts in excess of the Applicant’s actual worked hours across the period during which the offence occurred.[10] The Applicant received between $80,000 and $100,000 of the total stolen amount, with the remainder transferred to her co-accused.[11] That employee was convicted and sentenced to a three-year term of imprisonment. He was also ordered to repay $326,413 to the employer.[12] Another co-worker was convicted on a separate occasion. She was sentenced to 10 months imprisonment and ordered to repay monies stolen. The Applicant has no other recorded convictions in Australia.
[9] R2, G10, page 45, 57.
[10] R2, G10, page 48; R3, page 74.
[11] R2, G10, page 51.
[12] R2, G10, pages 54-55.
As a result of the conviction, the Applicant’s visa was mandatorily cancelled on

24 April 2020 by a delegate of the Respondent under s 501(3A) of the Migration Act. The basis for the cancellation was that the Applicant did not pass the character test due to having a substantial criminal record as she had been sentenced to a term of imprisonment of more than 12 months and was 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.[13]
[13] Migration Act ss 501(6)(a), 501(7)(c).
The Applicant was notified of the Cancellation Decision by letter dated 24 April 2020 delivered to her by hand in prison.[14] The Applicant signed receipt of the documents on the same day.[15] The notice advised that she could make representations to seek revocation of the Cancellation Decision. On 16 June 2020, the Applicant requested revocation of the Cancellation Decision and made representations regarding why the decision should be revoked.[16] Further documents in support of the request were provided on 21 July 2020 and 24 August 2020.[17]
[14] R2, G43.
[15] R2, G3.
[16] R2, G11-G30.
[17] R2, G6-G7, G34-G42.
On 2 September 2020, the Delegate decided not to revoke the cancellation of the Applicant’s visa. This is the Reviewable Decision. The Applicant was notified of the Reviewable Decision via email to her representative on 2 September 2020.[18] On the same day she was notified of the Reviewable Decision, the Applicant applied to the Tribunal for review of that decision.[19]
[18] R2. G8, page 23.
[19] R2, G2.
The application for review made to this Tribunal was made in accordance with ss 500(1)(ba) and 500(6B) of the Migration Act and the Tribunal is satisfied that it has jurisdiction to review the decision.
LEGISLATIVE FRAMEWORK
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
These powers generally involve consideration of whether a person passes the character test, and if they do not, the exercise of a discretion about what decision should be made.
The character test is set out in s 501(6) of the Migration Act, which essentially deems that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6) of the Migration Act relevantly provides that:
(6)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)); or
…
(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)
the person has been sentenced to a term of imprisonment of

12 months or more; or
…
(Original emphasis.)
Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain incarcerated persons who do not pass the character test, including where the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months. The person must be 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.
If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the original decision. If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied the person passes the character test or that there is another reason why the original decision should be revoked. The revocation decision under s 501CA(4)(b)(i) calls on the decision-maker to first decide whether the person passes the character test and, only if satisfied the person does not, proceed to consider under s 501CA(4)(b)(ii) if there is ‘another reason’ why the cancellation should be revoked.[20]
[20] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
Section 501CA of the Migration Act 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.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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.)
The Minister may give written directions to a person or body exercising powers under the Migration Act if those directions are about the performance of those functions or the exercise of those powers.[21] Further, s 499(2A) of the Migration Act provides that a person or body must comply with such a direction. On 20 December 2018, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 79 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction No 79) under s 499 of the Migration Act, for people or bodies exercising powers under ss 501 and 501CA. Direction No 79 commenced operation on 28 February 2019.[22]
[21] Migration Act s 499.
[22] Direction No 79 is the direction currently in force.
The purpose of Direction No 79 is to guide decision-makers exercising powers under the Migration Act. It identifies certain principles which provide a framework within which decision-makers should approach their task.[23] It prescribes relevant considerations which must be taken into account but provides guidance only as to the manner in which they are to be balanced. It equips decision-makers with a wide discretion that enables them to take into account the different circumstances that may arise and to reach a result that is fair and rational in all the circumstances, while ensuring that account is had to particular considerations.[24]
[23] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562, 585 [80]–[81] (Lesianawai). The Court was discussing Direction No 55, but the reasoning applies equally to Direction No 79.
[24] Lesianawai 586 [83].
In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction No 79.
Direction No 79
Paragraph 6.1 of Direction No 79 sets out the ‘Objectives’ of the Migration Act. Paragraph 6.2 of Direction No 79 provides ‘General Guidance’ as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No 79 sets out ‘Principles’ which must be taken into account by persons making decisions under s 501CA(4) of the Migration Act, including the Tribunal:
(1)
Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on

non-citizens in the expectation that they are, and have been, law-abiding,

will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Informed by the principles set out in para 6.3 of Direction No 79, the Tribunal must take into account the primary considerations in Part C of Direction No 79, with regard to the specific circumstances of the case.[25] Specifically, para 13(2) of Direction No 79 provides:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
[25] Direction No 79, para 13(1).

Paragraph 14(1) of Part C of Direction No 79 lists other considerations as follows:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
Paragraph 7(1)(b) of Direction No 79 outlines how a decision-maker is to exercise discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
a)…
b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Further guidance as to how a decision-maker is to apply the considerations in

Direction No 79 can be found in para 8 of Direction No 79, ‘Taking the relevant considerations into account’, which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
THE HEARING
The hearing was held on 12 November 2020 in Perth. The Applicant was represented by Ms Alice Graziotti of Estrin Saul Lawyers. The Respondent was represented by Mr Ashley Burgess of Sparke Helmore Lawyers. Both representatives appeared in person. The Applicant also appeared in person. She did not request the assistance of an interpreter and the Tribunal was satisfied she was able to participate fully in the hearing in English.
At the hearing, the Applicant made submissions, gave evidence and was

cross-examined. The Applicant also called the following witnesses to give evidence in support of her application:
·The Applicant’s partner; and
·Dr Phillip Watts, Clinical Psychologist.
The Applicant’s partner gave evidence in person. Dr Watts gave evidence via telephone.
The Tribunal admitted the following documents into evidence:
·Exhibit A1
– Applicant’s Statement of Facts, Issues and Contentions dated

9 October 2020;
·Exhibit A2 – Applicant’s Bundle of Evidence;[26]
·Exhibit A3 – Applicant’s Reply to the Respondent’s Statement of Facts, Issues and Contentions dated 9 November 2020;
·Exhibit R1 – Respondent’s Statement of Facts, Issues and Contentions dated 30 October 2020;
·Exhibit R2 – G Documents (G1-G44); and
·Exhibit R3 – Tender Bundle.
[26] Submitted in two parts but sequentially numbered (pages 1-194).
The Applicant provided statements, reports and letters from additional witnesses to the Tribunal. These were contained in the Applicant’s Bundle of Evidence.[27] The Respondent agreed to this material being admitted into evidence at the hearing but did not seek to

cross-examine the witnesses. Accordingly, those witnesses were not called but the Tribunal has had regard to their statements.
[27] A2, pages 1-4, 7-31, 120-121, 164-166, 167, 179-189.
Additional statements and letters were submitted to the Delegate prior to the Reviewable Decision being made. This material was admitted into evidence as part of the

G Documents[28] and the Tribunal has also had regard to these statements.
[28] R2, G18-28.
THE ISSUE
The issue for determination is whether the Tribunal should exercise the power in s 501CA(4) of the Act to revoke the mandatory cancellation of the Applicant’s visa. That will require determination of:
(a)
whether the Applicant passes the character test (as defined by s 501 of the Act)

(s 501CA(4)(b)(i)); and
(b)if not, whether there is ‘another reason’ why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii)).
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Applicant accepted that she does not pass the character test.
As noted above, the character test is defined in s 501(6) of the Migration Act.
Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’ as defined by s 501(7). Relevant to the Applicant’s case,

a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’ (s 501(7)(c) of the Migration Act).
The Applicant has been sentenced to a term of imprisonment in excess of 12 months and, as a result, has a substantial criminal record as defined in s 501(7) of the Act. Therefore, she does not pass the character test under s 501(6)(a).
The Tribunal is not satisfied that the Applicant passes the character test (see
s 501CA(4)(b)(i) of the Migration Act).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
As the Tribunal is not satisfied the Applicant passes the character test, the Tribunal must then consider whether, having regard to the primary and other considerations in Direction No 79, there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked.
Following the notification of the intention to cancel her visa, the Applicant made representations to the Department requesting that her visa not be cancelled.[29] This included a written statement from the Applicant, supporting statements from friends and referees and other material.
[29] R2, G11-G30.
Before the Tribunal, the Applicant made written and oral submissions outlining her central contentions as to the reasons why the Cancellation Decision should be revoked, in similar terms to submissions made before the Department.
The Applicant’s primary contentions were that her low risk of reoffending, the best interests of her minor child in Australia, who is an Australian citizen, and her positive contribution to the Australian community, including through her work in the aged care sector constitute another reason why the cancellation should be revoked.[30] The Applicant also contended that potential non-refoulment obligations owed to the Applicant, the strength, nature and duration of her ties to Australia, including her Australian citizen partner, and the extent of impediments if she is removed to Zambia weigh in favour of revoking the Cancellation Decision.
[30] A1, page 6 [48].
The Respondent submitted, in summary, that the protection of the Australian community and the expectations of the community weigh against the Applicant and outweigh other considerations.[31] The Respondent contended that the Applicant’s offending involved the theft of a significant amount of money over a sustained period and should be considered as serious. The Respondent also contended that any risk of reoffending is unacceptable, having regard to the serious financial harm which could be caused to the Australian community if the Applicant were to reoffend. It was further contended that in circumstances where the Applicant had sole custody of her son, he would be likely to return with her to Zambia and his best interests did not outweigh other considerations. The Respondent submitted that while the Applicant has ties to Australia and may face some challenges upon return to Zambia, there was insufficient or contradictory evidence regarding whether her return would engage Australia’s non-refoulement obligations and there were no other substantial impediments to her removal. Having regard to these considerations the Respondent contended there was no other reason why the Cancellation Decision should be revoked.
[31] R1.
These submissions will be dealt with in more detail below.
The visa
As noted above, the Applicant’s visa, which was the subject of the Cancellation Decision, was a bridging visa. This is a limited stay visa which the Applicant was issued when she made a valid application for a protection visa. The bridging visa enabled the Applicant to remain in the community while her protection visa application was determined. The submission from the Applicant was that this application is yet to be determined.[32]
[32] A2, page 21 [136].
It follows that the consequences which flow from the cancellation of the Applicant’s bridging visa are, in practical terms, different to those which flow from the cancellation of a permanent or substantive visa. Importantly, as the Applicant has a valid protection visa application which is yet to be determined, the cancellation of her bridging visa does not in practical or legal terms mean that she will necessarily be subject to removal from Australia. Unlike other visa applications, which are deemed to be cancelled or refused when a visa is also cancelled or refused on character grounds under s 501, a valid protection visa application is not deemed to be refused.[33]
[33] See Migration Act s 501F.
The relevance, if any, of the limited stay nature of the Applicant’s visa on the exercise of the discretion to revoke the Cancellation Decision was discussed with the parties at the hearing. Both the Applicant’s and the Respondent’s representatives accepted that the practical consequence of the decision whether or not to revoke the Cancellation Decision would be to determine whether she is in immigration detention following her release from prison and pending final determination of her protection visa application or whether she is permitted to await that determination in the community, once she completes her sentence or is released on parole.[34]
[34] Transcript, pages 62-63, 64-65.
The Applicant’s representative submitted that an additional, and relevant, legal effect of a decision not to revoke the Cancellation Decision would be that the Applicant would be barred from making any further visa applications other than for a bridging visa R.[35]
[35]
In this regard the Tribunal notes the Migration Act contains a number of provisions relating to detention and removal of unlawful non-citizens who do not hold a visa or whose visas have been cancelled or refused including on character grounds. A non-citizen who does not hold a visa must be detained under s 189 of the Migration Act. If the Cancellation Decision is not revoked, the Applicant would be liable to be detained under s 189. Section 198 provides that where an unlawful non-citizen falls within its terms they must be removed ‘as soon as reasonably practicable’. This includes in circumstances where they have a visa cancelled or they are in detention and do not have a valid visa application awaiting determination.
However, s 198 also provides that an officer must not remove an unlawful non-citizen where they have a made a valid protection visa application which has not been finally determined.
The Tribunal notes that in this instance, the Applicant has a valid protection visa application which is awaiting determination. Unlike other visa applications which are taken to be refused when a visa is cancelled or refused under s 501, protection visas are not deemed to be refused and remain valid.[36] In such circumstances, the Respondent submits, s 198 would not provide for the non-citizen's removal ‘as soon as practicable’ as they are in the migration zone and have made a valid visa application which has not yet been determined.[37] Section 197C does not apply because there is no obligation to remove under s 198 in such a circumstance. The Respondent submits that in any event, the government’s policy is that a non-citizen to whom non-refoulement obligations are owed will not be removed to a country in respect of which a non-refoulement obligation exists.[38]
[36] Migration Act s 501F.
[37] Transcript, pages 64-65.
[38] Direction No 79, para 14.1(2).
As the Applicant has a valid protection visa application which is yet to be determined, it would appear that the provisions of s 198 do not require her removal ‘as soon as practicable’. While the provisions of s 198 are not entirely clear with respect to valid protection visa applications made prior to a decision under s 501(3A), the parties agreed that the effect of the provisions was that the applicant would not be removed while her protection visa application was pending determination. The requirement to remove would not take effect until the grant of the visa has been refused and the application has been finally determined. This is notwithstanding the provisions of s 197C which relates to the assessment of non-refoulement obligations with respect to a non-citizen and not a determination of an application for protection by a non-citizen.
The Tribunal accepts that its decision has significant consequences for the Applicant and the Australian community. However, the Tribunal is also mindful of addressing and weighing the relevant primary and other considerations in Direction No 79 and that, having regard to s 198, the removal of the Applicant would not be a practical consequence of a decision not to revoke the Cancellation Decision. Rather, she would be detained pending final determination of her protection visa application, or the issuance of a permitted bridging visa or discretionary visa. This is relevant to a number of considerations addressed in Direction No 79 and the implications of the practical consequences of the decision are addressed further in the context of those considerations.
First primary consideration: Protection of the Australian community
Paragraph 13.1(1) of Direction No 79 provides that:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle 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. Remaining in Australia is a privilege that Australia confers on noncitizens 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…
Paragraph 13.1(2) provides that consideration should also be given to two issues: the nature and seriousness of the Applicant’s conduct to date; and the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
With respect to her risk of reoffending, the Applicant submitted that:[39]
·the Applicant acknowledges the seriousness of her offending;
·she made full admissions when interviewed and pleaded guilty to the offence;
·she was a first offender and the offending was out of character for her;
·she was facing difficult personal circumstances at the time of the offending;
·without diminishing the overall seriousness of the crime, it was not in the category of the most serious crimes that come before the Tribunal;
·her commitment to not reoffending was tested in the community over the 24-month period between March 2018 when she made initial admissions and March 2020 when she was convicted. During that period she was in the community; and
·the assessment of the sentencing judge, the Department of Justice risk of reoffending assessment and Dr Watts’ report all support the conclusion that the Applicant presents an extremely low risk of reoffending.
[39] A1, pages 6-15.
The Respondent contended that:[40]
·the Applicant’s offending must be considered serious in light of the significant sum of money stolen and the extended period of time over which the crime was committed;
·the Applicant’s sentence of 18 months imprisonment reflects the objective seriousness of the offence, having regard to the fact that the offence involved an abuse of a position of trust and to the principle that imprisonment is a sentence of last resort;
·the nature of harm which could be caused to members of the Australian community if the Applicant were to reoffend in a similar manner is serious and could involve significant financial harm;
·the Applicant’s explanations for her conduct should not be accepted, as she did not provide evidence to support her claim of difficult personal circumstances and did not suggest in the criminal proceedings that she was subjected to ‘any form of blackmail or extortion’; and
·due to these factors, there continues to be an unacceptable risk of harm to the Australian community.
[40] R1, page 7-10.
Nature and seriousness of the conduct (para 13.1(2)(a) of Direction No 79)
Paragraph 13.1.1(1) of Direction No 79 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 factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that 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, are serious;
d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)The cumulative effect of repeated offending;
g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)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);
i)Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act.
In considering the protection of the Australian community the Tribunal must give consideration to the nature and seriousness of the Applicant’s offending and other serious conduct.
The Tribunal notes the Applicant acknowledged the seriousness of her offending.[41]
[41] A1, page 7 [51].
As noted above, the Applicant was sentenced at the same time as a co-worker with whom she had been romantically involved during the period of the offending.[42] This co-worker is the father of her Australian citizen child.[43] Another co-worker was separately convicted.[44]
[42] R2, G10, page 51; R3, page 233-234.
[43] R2, G18, page 137.
[44] R2, G42.

The offence involved the co-accused, who was a payroll-clerk at the aged care home, where the Applicant was employed as a carer, arranging a series of salary overpayments to the Applicant and another co-worker at the same facility. The sentencing judge, His Honour MacLean DCJ, summarised the facts as follows:[45]
between 22 December 2015 and … 14 March 2018 at [the location of the Applicant’s workplace], that being a servant of [the Applicant’s employer, a private aged care provider], that you stole the sum of $148,061, and that that sum came into your possession on account of your employment and that, as was the case with [the Applicant’s co-accused], the money was the property of [the Applicant’s employer, a private aged care provider].
[45] R2, G10, page 45.
In sentencing, His Honour referred to the serious nature of the Applicant’s offending in the following terms:[46]
The offence of stealing as a servant is serious. It involves the abuse of a position of trust with a consequence that significant weight is accorded to general deterrence with an associated reduction in the weight given to personal antecedents.
[46] R2, G10, page 47.
His honour noted a distinction between the magnitude of the criminality between the Applicant and her co-accused as follows:[47]
The amount which was taken by you … is less than the amount that was taken by [the Applicant’s co-accused]. The amount you took was $148,061 so necessarily there is a distinction in culpability between you for at least two immediately apparent reasons.
The amount that was taken was significantly less and the period of time that you were involved in the enterprise was a period of something in the order of 11 or 11 and a half months less than [the Applicant’s co-accused] was involved in the enterprise.
Notwithstanding those differences, the criminal conduct by you … is serious having regard to those two factors, the length of the time over which the offending took place and the substantial sum of money that was involved…
However, I do acknowledge that there are at least two differences there which distinguish you and [the Applicant’s co-accused] and on the face of it mark [the Applicant’s co-accused’s] criminality as being of a greater magnitude than yours by reason of those two factors, namely, the length of time and the quantum, that is, the amount of money that was involved.
There is also a further distinction between you which marks [the Applicant’s co-accused’s] conduct as being more serious than [the Applicant’s] conduct and that distinction arises by reason of the role that [the Applicant’s co-accused] held within the organisation. He was responsible for recording peoples pay entitlements and for managing the system and the scheme could not have taken place if it were not for [the Applicant’s co-accused’s] involvement in it.
In making that observation I’m not blind to the fact and I do not reject and I’m not ignoring the State’s submission that I accept that similarly the scheme could not have been undertaken if [the Applicant] were not prepared to be a recipient for money from the scheme.
However, necessarily it seems to be, and I do find as a fact, that [the Applicant’s co-accused] had a high degree of culpability by reason of his more significant role within the organisation and by reason of his capacity to actually put into effect the scheme.
[47] R2, G10, pages 47-48.
However, His Honour found that the difference in culpability was not a mitigating factor for the Applicant but rather an aggravating factor insofar as her co-accused was concerned.[48] His Honour went on to note that:[49]
The fact of the matter remains that ultimately it was your decision to embark upon this enterprise and to remain a part of the enterprise and your involvement was essential for it to take place.
[48] R2, G10, page 48.
[49] R2, G10, page 51.
The Applicant submitted that at least a large portion of the money she received as a result of the offence was transferred back to her co-accused.[50] With respect to this issue His Honour noted that:[51]
I have considered the submission that was made on your behalf and the State does not cavil or contradict it, namely that of the funds that were received by – or taken by you as the stealing, that is the $148,061, perhaps 80,000 to $100,000 of that amount was received by you with the differential, the distinction being forwarded to [the Applicant’s co-accused].
[50] A1, page 13 [87].
[51] R2, G10, page 51.
His Honour went on to describe the victim as a vulnerable victim in circumstances where the victim, as an employer, was entitled to expect that its employees would not take advantage of it and noting that there would be ‘demonstrably adverse consequences by reason of the large scale of the offending insofar as the ultimate sum of money taken’.[52] The Respondent suggested this was relevant to characterising the offence as one against a vulnerable member of the community.[53] Paragraph 13.1.1(1)(c) of Direction No 79 provides that ‘crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious’. In this regard the Tribunal notes the vulnerability of the victim described by his Honour, though in the Tribunal’s view this does not add a significant amount to the overall assessment of the seriousness of the Applicant’s offending.
[52] R2, G10, page 53.
[53] Direction No 79, para 13.1.1(1)(c).
Paragraph 13.1.1(1)(a) of Direction No 79 specifies that violent or sexual crimes are viewed very seriously, but does not limit the range of offences that may be considered serious. In the Tribunal’s opinion, fraudulent offences can also be categorised as serious. It was submitted by the Applicant, and the Tribunal accepts, that the circumstances of the Applicant’s offences are not in the category of the most serious crimes (including violent or sexual crimes) that come before the Tribunal. However, the Tribunal’s view of the comparison does not serve to lessen the objective seriousness of the Applicant’s offending. The Applicant’s offences involve deceptive and dishonest conduct to steal a large sum of money from her employer in relation to whom, as noted by his Honour, she held a position of trust. Accordingly, the Tribunal does regard the Applicant’s offence as serious.
The Applicant was sentenced to a custodial term of 18 months imprisonment on 27 March 2020.[54] The Tribunal accepts the Respondent’s submission that a term of imprisonment is generally imposed as a last resort and can reflect the serious nature of the offending. The maximum term that could be imposed for the offence was 10 years. The Applicant was sentenced to 18 months with eligibility for parole. The sentencing judge stated that the Applicant would be eligible for parole after serving nine months of this custodial sentence. The Tribunal observes that his Honour did not impose the maximum penalty and noted the need for general deterrence.
[54] Direction No 79, para 13.1.1(1)(d).
However, recognising the sentence was well below the statutory maximum, the Tribunal regards a custodial sentence of 18 months as not insignificant, particularly for ‘an absolute first offence’.[55] As such, the Tribunal regards the sentence as a reflection of the seriousness with which the Court regarded the offending.
[55] R2, G10, page 50.
Looking at the other factors identified in para 13.1.1(1), the Tribunal finds the following:
(i)the offences were not of a violent nature against women;[56]
(ii)there cannot be said to be an increasing trend in the seriousness of the Applicant’s offending, as this was her first and only offence;[57]
(iii)the Applicant has only one offence, so there cannot be said to be any effect of cumulative offending;[58]
(iv)there is no evidence that the Applicant has provided false or misleading information to immigration officials;[59]
(v)the Applicant has not received any prior warnings;[60] and
(vi)there is no evidence the Applicant has committed offences in prison or immigration detention.[61] In this regard the Tribunal notes the evidence suggests that the Applicant has been a compliant inmate and has received positive feedback for her behaviour and work performance.[62] The Tribunal accepts on the evidence that the Applicant has been on good behaviour in prison which is to her credit.
[56] Direction No 79, para 13.1.1(1)(b).
[57] Direction No 79, para 13.1.1(1)(e).
[58] Direction No 79, para 13.1.1(1)(f).
[59] Direction No 79, para 13.1.1(1)(g).
[60] Direction No 79, para 13.1.1(1)(h).
[61] Direction No 79, para 13.1.1(1)(i).
[62] R2, G7; A2, pages 122 and 127.
On balance, the Tribunal finds that the nature of the Applicant’s offending is serious, noting however that the offence is the Applicant’s first offence and that she attempted to mitigate her wrongdoing through an early guilty plea.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 13.1.2(1) of Direction No 79 provides:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to the Australian community. This requires both consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be.[63] There is no statutory constraint on the way risk is assessed by the decision-maker other than there must be a rational and probative basis for the assessment.[64]
[63] Nigro v Secretary to the Department of Justice (2013) 41 VR 359, 389 [111] cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424, 444 [95], as well as Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117, 124 [42]-[43]. See also Senior Member Dr M Evans-Bonner in CZCV and Minister for Home Affairs [2019] AATA 91, [56].
[64] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J who referred to the basis for the assessment of the risk of re-offending as requiring a ‘rational and probative basis’.
The Applicant accepts that the nature of harm to the Australian community should she commit similar offences is serious ‘as it could have a “flow-on” (indirect) effect on vulnerable members of the Australian community, namely elderly people’.[65] However, the Applicant contends that, while serious, the nature of the potential harm is not such that any risk of the Applicant reoffending is unacceptable. The Applicant’s main contention with respect to this consideration is that she presents a very low risk of reoffending. This contention is supported by the assessments of risk made in the prison context[66] and on the assessment of Dr Watts,[67] the circumstances of her offending and in particular her personal susceptibility at the time of the offending, her lack of prior convictions and her remorse demonstrated by her early guilty plea, the salutary effect of her term of imprisonment and her awareness of the impact reoffending would have on her migration status, her pro-social family and community supports.[68] The Applicant contends that the cumulative effect of these considerations is that her risk of reoffending is ‘nil’ and in any event not unacceptable.
[65] A1, page 9.
[66] A2, pages 112 and 120.
[67] A2, pages 179-184.
[68] A1, pages 8-15.
The Respondent contended that if the Applicant were to reoffend the nature of the harm would be serious and could involve significant financial harm to members of the Australian community. The Respondent contended that the nature of the harm that could be caused meant that any risk of similar conduct was unacceptable.[69] The Respondent contended that there was no evidence that the Applicant had been subjected to pressure to participate in the theft which gave rise to the conviction. The Respondent contended that the Applicant presented a risk of engaging in further dishonest conduct, stealing offences and the like, having regard to the fact that the personal circumstances by reference to which the Applicant attempted to explain the offending could reoccur in the future.[70]
[69] R1, page 9.
[70] R1, page 10.
The Applicant stole from her employer. The amount stolen was significant and the offending occurred over a sustained period. The victim, the Applicant’s employer, was described by the sentencing judge as ‘vulnerable’ in the sense that an employer is entitled to place trust in employees and not to be financially harmed by them. In the case of the Applicant’s offending, the sentencing judge noted the victim suffered ‘demonstrably adverse consequences’.[71]
[71] R2, G10, page 53.
In the Tribunal’s view, the harm that could result if the Applicant is to reoffend in a similar manner[72] is significant financial loss to an employer, or other person or entity in relation to whom the Applicant holds a position of trust as an employee. Offences of ‘stealing as a servant’ involve dishonesty by an employee. They can result in financial losses to companies, government agencies and members of the public, as well as potentially to increased insurance premiums in the event employers are insured for such losses.
[72] Direction No 79, para 13.1.2(1)(a).
The Tribunal regards such harm as serious, however it accepts the Applicant’s submissions that such harm may be regarded as less serious than the harm caused by violent crimes.[73]
[73] Direction No 79, para 13.1.1(1)(a).
The Tribunal has also considered the likelihood of the Applicant reoffending if she were permitted to remain in the Australian community.[74]
[74] Direction No 79, para 13.1.2(1)(b).
Prior to committing the offence for which she was convicted, the Applicant had not been convicted of any other offences in Australia since arriving in 2010. There is similarly no evidence to suggest she had been convicted of any offences in Zambia. MacLean DCJ’s sentencing remarks noted the Applicant’s lack of antecedents and prior good character stating:[75]
I sentence you on the basis that you are an absolute first offender, that these offences might be described, notwithstanding the protracted period over which they took place, as being out of character for you.
And while on one view had you not have had the misfortune to have been introduced to [the Applicant’s co-accused] and to have formed a relationship with him and perhaps to have been invited to embark upon a [sic] enterprise with him, you would have been unlikely to have ever had any contact with the criminal justice system.
[75] R2, G10, page 51.
His Honour went on to note:[76]
I accept that you have accepted responsibility for your conduct and in each case I am satisfied that you do have very good prospects for rehabilitation having regard to your past … in which you’ve undertaken no criminal offences of any kind and you have a long work history. You are lovingly regarded by those who know you and respected for your employment and personal values.…
I’m satisfied that there does not loom large a risk of reoffending having regard to the qualities that I have referred to.
[76] R2, G10, page 52.
His Honour also noted that the Applicant’s plea of guilty at the earliest opportunity ‘is also significantly consistent with insight and remorse’.[77] The Tribunal accepts the Respondent’s submission that it is not bound to adopt his Honour’s assessment of the risk of the Applicant reoffending,[78] however, as noted at the hearing, the Tribunal places weight on the sentencing judges remarks and assessment, which were made in the immediate context of sentencing for the offence and with the benefit of a pre-sentence report that is not before the Tribunal. In the Tribunal’s view, his Honour’s comments are strongly suggestive of a low likelihood of the Applicant re-offending in the future.
[77] R2, G10, page 50.
[78] Transcript, page 67.
In support of her claim to be a low risk of reoffending, the Applicant pointed to the two years she spent in the community from the time of her interview with police and admission of guilt until her hearing.[79] One year of his period was spent on bail. The Applicant submitted a number of supporting statements attesting to the belief of family and friends that she was remorseful and committed to not reoffending. These included a statement from a friend and ex-colleague, Ms Starnes, who stated:[80]
[The Applicant] had come to me and explained her situation that had happened with her and I was shocked but most of all disappointed in her poor lack of judgement and how totally out of character this was. [The Applicant] has expressed to me how remorseful she is towards the decisions she made, and how disgraced she felt towards telling her friends of what she had done. She spent a lot of time with me upset, crying, feeling stressed, not knowing what to do as she had never had to deal with court or police before and most of all sorry what she had done and how she got herself into such a mess as she has never been in this situation before as it was a first offense [sic].
The Applicant’s current partner also attested to her remorse and regret.[81]
[79] A1, page 9 [70].
[80] R2, G26, page 175,
[81] A2, page 4.
The Applicant stated with respect to her remorse and risk of reoffending:[82]
I really regret what I did. It was the first time something like this had happened to me. While in prison I have had enough time to reflect and I have learnt new skills that will help me to avoid reoffending, such as open communication, being assertive, positive thinking.
I cannot reoffend without another person facilitating the offence. I don’t know how to run payroll. I don’t even understand the system.
I’ve never offended before. I made this mistake to fall for what he was saying and believed his threats so I did not stop the offending. Now that I have been in prison, the impact on my son and my reputation and my family makes me never want to offend. I would never want to go through this again and would never want to put family through this. It was a mistake. A mistake I am committed to never making again.
I have bright plans for my future which include completing my Enrolled Nursing course upon my release then proceed with Registered Nursing if I had the privilege to return to the community. I also want to be there for my kids and my partner and be the best of me.…
If I was released to the community I will seek assistance and see a psychologist.
[82] A2, pages 191-192.
The Applicant submitted that she had undertaken several voluntary programs where they were available to her in prison, noting she was not assessed to have any criminogenic need for intervention programs and other options were limited by COVID-19 restrictions. In this regard she completed:
·safety and hygiene courses;[83]
·Standing on Solid Ground, a 50 hour program about emotional intelligence;[84] and
·personal development and general education courses;[85]
She also commenced further nursing studies at Open Colleges School of Health, prior to her incarceration.[86]
[83] R2, G7, page 22; A3, page 159.
[84] R2, G7, page 20.
[85] R2, G7, page 21; A3, pages 151, 163.
[86] A2, pages 160-162.
The Applicant also referred to the fact that a ‘Risk of Reoffending - Prison Version’ undertaken by the Department of Justice screening tool scored the Applicant as a “1” the lowest risk of reoffending on a scale of 1-25.[87] While the Tribunal places some weight in this assessment, it notes that no detailed analysis of the assessment is available and there is no indication of the purpose of the assessment. In such circumstances it is of limited assistance in undertaking an assessment of the Applicant’s risk of reoffending for the purposes of assessing whether the cancellation of her visa should be revoked.
[87] A2, page 112.

Before the Tribunal, the Applicant also offered a report from Dr Watts, an adjunct associate professor in clinical psychology.[88] The Tribunal regarded Dr Watts as having the appropriate experience and expertise to provide an expert opinion in relation to the Applicant’s risk of reoffending. Dr Watts regards the Applicant’s risk of reoffending with respect to the ‘stealing as a servant’ offence to be ‘very low’.[89] However, the Tribunal notes that Dr Watts’ assessment was somewhat qualified at the hearing, where he indicated that it was based on his finding that the Applicant was not motivated by financial gain in engaging in the offence. Dr Watts indicated that if financial gain were a motivating factor, this may increase the risk of her engaging in such offending again, particularly if she was financially stressed.[90]
[88] A2, pages 179-184.
[89] A2, page 183.
[90] Transcript, page 49.
Dr Watts noted that he interviewed the Applicant in person on 21 October 2020 for over two hours, where he administered psychological testing in the form of a Personality Assessment Inventory (PAI) to the Applicant.[91] Dr Watts noted that the PAI testing results indicated ‘some positive distortion’ and that her profile ‘indicates that she was minimising are unaware of her underlying psychological issues’. He noted that:[92]
Despite the positive impression there indicators of impact of traumatic events, poor control over anger, suspiciousness, inflated self-esteem, feelings of helplessness, and rumination and worry.
[91] A2, page 180.
[92] A2, page 182.
With respect to the offending, Dr Watts noted that:[93]
It would appear that [the Applicant] was largely set-up in a scam arrangement at a time when she was vulnerable. As I understand it, it later turned out that this person … was doing a similar pattern of paying other women extra money and then getting the money back from them. [The Applicant] recognises that she should have acted early about the situation. She said that she did not fully understand what was going on, and by the time she did he was threatening her.
[93] A2, page 181.
Dr Watts noted the Applicant was in a vulnerable position at the time of the offending including through her own personal circumstances and her relationship with the co-accused. He also noted that ‘[t]he threats by him then added to the complexity and her vulnerability’.[94] The report also noted that:[95]
[The Applicant] reports no previous criminal record and she presented with no aspects which would cause one to consider her likely [sic] to offend, and it would appear that she was more the ‘passive’ than ‘active’ person involved with the offence. The circumstances are such that one would see her as a very low risk of re-offending. The risk will be even lower if the relationship she is in remains stable and ongoing.
[94] A2, page 182.
[95] A2, page 182-183.
In terms of her overall risk Dr Watts assessed that:[96]
I would see [the Applicant] of having a very low likelihood of committing another offence… her role was initiated by others the Sentencing Remarks are quite clear that she was considered to be both low-risk and quite low on the culpability involved in the offence. However, she was still involved in the actual offence, and she accepts that she should have acted very early-on to report what was happening.
[96] A2, page 183.
In terms of what rehabilitation the Applicant might need, Dr Watts noted that he was not satisfied that she needed significant rehabilitation and that ‘she is someone who is likely to have not re-offended, even before rehabilitation’.[97]
[97] A2, page 183.
The Tribunal places weight on Dr Watts’ report as evidence that the Applicant presents a low risk of reoffending, though the Tribunal notes that Dr Watts indicated that risk may be slightly higher if the Applicant were found to have engaged in the prior offending for financial gain. In this regard the Tribunal is satisfied that financial gain was part of the motivation for the Applicant engaging in the behaviour. The Tribunal bases this assessment on the fact that there was a significant amount of money paid to the Applicant over a long period of time. The Tribunal is not satisfied that, as claimed by the Applicant, she was not aware of the amounts that she was being paid or somehow was not benefiting from them. That suggestion is not consistent with the remarks of the sentencing judge which suggest that the Applicant profited to a significant degree from the monies which she was paid. This suggests that financial benefit or gain was at least partly a motivating factor in her continued involvement in the offending. The Tribunal regards this assessment as consistent with the comments of the sentencing judge and the sentence imposed.
With respect to the Applicant’s plan for reducing her risk of reoffending in the community, Dr Watts commented on the Applicant’s current partner as a factor in further reducing the risk of reoffending. In this regard, the Tribunal accepts the Applicant’s submission that her current pro-social environment, and in particular her relationship with her current partner, is a factor which reduces the likelihood of her reoffending. The Tribunal found the Applicant’s partner to be genuine in his concern for the Applicant, his care for her son and his commitment to supporting her not to reoffend in the future if she is able to remain in the community. The Applicant submitted supportive statements from a number of former co-workers and friends who were surprised by her activity, declaring their condemnation for it but also their ongoing support for the Applicant as someone who is capable of rehabilitating and not reoffending and of making a positive contribution if given the opportunity to remain in the community.
Further, the Applicant has a strong employment history and while the nature of her offence may impede her efforts to regain employment, there is evidence that she has an offer of support from a placement agency in this regard.[98] The Tribunal accepts the Applicant has reasonably good prospects for stable employment in the community if she maintains her commitment to further education and to not reoffending. The Tribunal also regards that this is a protective factor against reoffending.
[98] R2, G19, page 151,
The Tribunal accepts that the Applicant is remorseful and is committed to not reoffending. The Tribunal found the Applicant’s acceptance of criminal responsibility to be genuine, if complicated by her belief that she was pressured by her co-accused and her frustration at what she sees as an unfair sentence when compared with the co-worker who was separately sentenced. However, the Tribunal accepts the Applicant now has the benefit of an insight into the consequences of her offending behaviour and is endeavouring to improve.
Having regard to all the circumstances of the Applicant’s offending and the evidence before it, the Tribunal considers that the likelihood of the Applicant offending in a similar way is very low.
With regard to the protection of the Australian community, the Tribunal finds that the Applicant’s offending was serious. The Tribunal considers that serious harm, in particular serious financial harm, would result to members of the community were the Applicant to reoffend in a similar manner. However, the Tribunal finds that there is a very low likelihood of her engaging in further criminal or other serious conduct. On balance, the Tribunal finds that the first primary consideration weighs moderately against the revocation of the cancellation of the Applicant’s visa.
Second primary consideration: The best interests of minor children in Australia (para 13.2 of Direction No 79)
Paragraph 13.2 of Direction No 79 provides:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision 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 non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
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 children. The oldest is a young adult living in Zambia. As he is not a minor and is not in Australia, his interests are not relevant to this consideration.
The younger child is a 3-year-old Australian citizen (Master A), whose biological father was the Applicant’s former co-worker and co-accused. Master A currently resides with the Applicant’s partner. The Applicant testified that he has no contact with his biological father.[99]
[99] Transcript, page 16.
No other relevant minor children were identified.
The Applicant submitted that the best interests of Master A weighed heavily in favour of revocation and should outweigh other primary considerations. The Applicant submitted that:[100]
·she was her Master A’s sole carer prior to her incarceration. They have a close relationship which has been impacted by their current separation;
·he has already been adversely affected by separation from her and has been referred to a psychologist for behavioural issues;
·Master A will either travel with her to Zambia, which would take some time to arrange and may result in a further extended separation, or he would remain with her partner in which case Master A would be permanently separated from his mother;
·research demonstrates the detrimental physical, emotional and psychological impact ongoing separation has on a child;
·Master A is not a Zambian citizen and obtaining a visa for him would be ‘lengthy and costly’. He would be disadvantaged in Zambia as ‘an alien without citizenship’. Further, he only speaks English;
·the Applicant’s child should not have to choose between his life in Australia and his ability to maintain a relationship with his mother and father figure; and
·regardless of whether the child remains in Australia or travels to Zambia, a decision not to revoke the cancellation of the Applicant’s visa would have a negative impact on the child.
[100] A1, pages 16-21.
The Respondent submitted that this primary consideration should be given limited weight as there was no evidence to suggest the child would remain in Australia if the Applicant’s visa remains cancelled, particularly given she has sole custody of the child. The Respondent submitted that to the extent that the best interests of Master A weighed in favour of revoking the cancellation of her visa this consideration does not outweigh the expectations of the Australian community.
Master A
As noted above, the Applicant has a young son who is an Australian citizen. He was born in Australia. He lived with the Applicant up until her incarceration. Since then he has been cared for by her partner, who the Applicant and her partner testified he refers to as ‘dad’.[101]
[101] Transcript, pages 16 and 37.
The evidence concerning the child’s care arrangements if the Applicant were removed to Zambia is unclear. It appeared from the Applicant’s evidence that she planned to take the child with her to Zambia if she were removed there, though this may be without the presence of her partner, who indicated he would likely remain in Australia. The Applicant submitted that the child is not a Zambian citizen and may have difficulties accessing services or remaining in Zambia on that basis and may be ‘treated differently by the government or other people’, however at the hearing she did not base this assessment on any information or advice from the relevant Zambian High Commission and had not applied for Zambian citizenship for the child.[102] There was insufficient evidence before the Tribunal to determine what the child’s likely status in Zambia would be and what impact this would have on him going forward. There was also evidence that the child has had little contact with his biological father and the Applicant testified she does not receive child support from him. [103] The Applicant also testified that there are no court orders in relation to the child.[104] She submitted that the child’s father had previously falsely attempted to claim payments from her via the Child Support Agency. [105]
[102] A2, page 192; Transcript, page 31.
[103] A2, page 192.
[104] Transcript, page 30.
[105] R2, G18, page 140
In such circumstances, in the Tribunal’s view, it is not possible to say that the Applicant has sole legal custody of the child or to rule out a claim to custody or access to the child by the father particularly in the event the Applicant attempted to remove the child from Australia to Zambia. In such circumstances, the Tribunal regards that if the Applicant is removed to Zambia it is possible Master A may remain in Australia with either the Applicant’s partner (whether as a decision of the Applicant and her partner, or because the child is unable to be removed from the jurisdiction due to opposition from his father) or with the child’s biological partner (in the event he sought access or custody to the child and opposed the child’s removal from Australia). Accordingly, the Tribunal has assessed the child’s best interests having regard to the fact there are a range of possible impacts which the decision on the exercise of the discretion may have on him.
The Applicant submitted that she has a close bond with Master A and is committed to supporting him. She stated: [106]
I am the biological mother and primary carer of [the Child]. We are so attached to each other. [Master A] and I lived the 2 of us in a rented house his biological father last saw [Master A] when he was six months old. But because I am in prison and due to COVID-19 visitors aren’t allowed to visit. So I speak to him on the phone every day to check how he is doing. And I tell him how much I love him.
Now that I am in prison [Master A] is been separated from me his mother. Being a kid he cannot express how he feels but he knows his mother is not there for him. There are certain things we used to do it was like a routine every day but because I am not there for him he’s missing that routine and his motherly love. We use [sic] to read books and he will play with me and because I breastfed him he will sometimes sit on my laps and play, touch my breast until he falls asleep he is missing all that motherly love, my voice and that feeling of safety when I am around.
(Errors in original.)
[106] R2, G13, pages 92-93 and 99. The Tribunal notes the answers on page 108 are struck through however as similar points are made elsewhere in the Applicant’s submissions the Tribunal does not place any significance on this.
She stated that removal would impact her son’s relationship with her partner who was the only father he had known.[107] She states that:
I am not sure what will happen with [the child] if I cannot stay. He is Australian. He has been impacted by my imprisonment already…
[The Applicant’s partner] has been [the child’s] carer since March this year. He is the only father than [sic] [the child] has ever known…
He will be starting school soon and he has all these opportunities here. If he goes to Zambia with me we will have nowhere to stay or sleep, no food, only poverty there. It is just not right.
[107] A2, page 192.
The sentencing judge noted that:[108]
in all respects you have been a careful mother for your two-year-old son and that … is also a factor that stands to your credit.
[108] R2, G10, page 51.
The Applicant is in a parental relationship with the child.[109] There is no information before the Tribunal as to any court orders in place with respect to the care and custody of the child. Based on the evidence available, the Tribunal accepts that the Applicant has had sole parental responsibility for the child to date.[110] The child is currently living with her partner who is fulfilling a parental role with respect to the child.[111] The Tribunal accepts that the child does not currently have contact with or support from his biological father, though the biological father’s views are not know and the Tribunal is unable to make a finding as to whether he would seek access to the child or support him in the future.
[109] Direction No 79, para 13.2(4)(a).
[110] Direction No 79, para 13.2(4)(a).
[111] Direction No 79, para 13.2(4)(e).
There is no evidence that the Applicant has abused or neglected the child in any way.[112] There is also no evidence that any prior conduct of the Applicant has directly had a negative impact on the child.[113] However, there is evidence that the child’s separation from the Applicant due to her imprisonment has negatively impacted on his mental and emotional well-being.
[112] Direction No 79, para 13.2(4)(g).
[113] Direction No 79, para 13.2(4)(c); para 13.2(4)(h).
The Tribunal accepts on the evidence that the child has suffered as a result of separation from his mother as a result of her incarceration. However, that harm is due to the Applicant’s offending and imprisonment and not due to the Cancellation Decision. However, the Tribunal accepts that if the Cancellation Decision is not revoked, this will extend the period of separation at least until the Applicant’s protection visa is determined, as the likely impact of non-revocation would be that the Applicant would be in immigration detention following her release on parole (if successful) or on the conclusion of her sentence. The Tribunal accepts on the evidence that the additional separation caused could negatively impact the child having regard to his young age and the fact his mother was his sole carer prior to her imprisonment.
There was evidence the child has visited the Applicant in prison through COVID-19 restrictions and the child’s fear of the guards had limited his in-person visits.[114] There was also evidence that the Applicant communicates with the child by phone. If the Cancellation Decision is not revoked, the child will be deprived of having a close in-person relationship with the Applicant in the immediate future, except by the means currently available to her. In this regard the Tribunal notes the evidence that visitors are not currently permitted in immigration detention facilities due to COVID-19 restrictions. It would, however, be possible for the child to communicate with the Applicant in ways other than in person, for example by telephone or over the Internet via Skype or FaceTime.[115] This is consistent with the manner in which they are maintaining contact while she is in prison. However, the Tribunal accepts this would not provide the child with the same relationship with his mother as would be possible if he were in her care on a full-time basis.
[114] Transcript, pages 38-39.
[115] Direction No 79, para 13.2(4)(d).

In any event, the Tribunal is not satisfied, on the material before it, that non-refoulement obligations arise with respect to the Applicant’s potential removal to Zambia for the reasons set out below.
While both the Applicant’s and Respondent’s representatives accepted at the hearing that non-refoulement issues may be regarded as ‘less relevant’ in the Applicant’s case, having regard to the nature of the visa and the practical implications of a decision on the exercise of the discretion to revoke the Cancellation Decision. The Respondent’s representative noted that the Applicant’s claims to be owed non-refoulement obligations should still be considered, following the case law with respect to the Tribunal’s obligation to consider any claims raised by the Applicant in the context of consideration of whether or not the Cancellation Decision should be revoked. The Tribunal accepts that this submission appears consistent with the approach to consideration in Direction No 79 in the balance of judicial authority (including the summary of the approach expressed by the Full Court in CTB19 above)[142] and accordingly has considered the Applicant’s claims to fear harm on return to Zambia and to, thus be owed non-refoulement obligations.
[142] See Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166; Omar FC; Ali v Minister for Home Affairs [2020] FCAFC 109 at [99] and [103].
In written submissions the Applicant made the following submissions regarding harm she feared she would face if returned to Zambia:[143]
·the Applicant does not have family support in Zambia and will she has ‘nowhere to live, no work’;
·the applicant believes she will be targeted by ruling party cadres who attacked her and another person because she was a supporter of the UNDP;
·some people who knew her did not like that she is a UNDP member from northern Zambia and was supporting a political party dominated by people from tribes hailing from the southern part of the country; and
·she was forced to relocate different townships to avoid being targeted by the cadres.
[143] A1, pages 21-22 [135]-[138].
The Respondent accepted that there is an obligation to consider clearly articulated claims of harm however the Applicant’s claims were largely general in nature and focus on risk of harm from generalised violence.[144] The Respondent submitted there was otherwise insufficient evidence before the Tribunal to adequately determine the Applicant’s claims. The Respondent further submitted the following with regard to the consequences of non-revocation and whether non-revocation would lead to the outcomes claimed by the Applicant:[145]
(c)The Executive has made a commitment not to remove people where that would contravene Australia’s non-refoulement obligations and there is nothing in the text of the Direction that can be understood to manifest the possibility of those commitments will not be honoured (citing BDQ19 v Minister of Home Affairs [2019] FCA 1630 at [64]).
(d)It remains relevant that the Applicant has applied for a protection visa because the immediate legal and factual consequence of the cancellation of the Applicant’s Visa does not necessarily include removal from Australia or prolonged detention (citing AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451 at [70]). Delegates operating under the relevant ministerial direction (Direction No 75) when considering a protection visa application must first assess whether refugee and complementary protection criteria are met before considering ineligibility criteria.
[144] R1, page 14 [56].
[145] R1, page 14 [55].
Further, the Respondent submitted that even if the Tribunal were to find that non-performance obligations were owed to the Applicant these considerations were not determinative and were outweighed by other considerations.[146]
[146] R1, pages 14-15.
The Tribunal notes the Applicant’s representative conceded that the Tribunal is entitled to take account of the fact that the Minister states as a matter of policy that a noncitizen with a valid application for a protection visa on foot will not be removed.[147] In the Tribunal’s view this is consistent with the authorities which provide that such a policy can be taken into consideration by the Tribunal.[148]
[147] Transcript, page 63.
[148] see BDQ19v Minister of Home Affairs [2019] FCA 152 ; WKMZ v Minister for Home Affairs [2020] FCA 1127 [32].
In her statutory declaration the Applicant stated:[149]
Political violence and persecution are serious problems in Zambia. For example, opposition politicians and supporters are being imprisoned on fabricated charges. It happened to a man called [name omitted] who is supporting UNPD party. I am afraid the same thing might happen to me and it will directly affect [the Applicant’s son].
When I was in Zambia I was campaigning against the ruling party. Security officers were using tear gas and things like that during protests. One night when I was going home with a friend, we were attacked by ruling party cadres. My friend was badly beaten and I have not seen her since then so I do not know if she survived. I hid in a ditch and I heard the attackers say they knew where I worked. I changed suburbs and told [the Applicant’s partner] what happened and then he encouraged me to come to Australia, so I left Zambia. I was afraid for my life after being attacked and that did not change after I relocated.
There has been a lot of targeted political violence and arrests of members of the opposition parties in Zambia, even now. I have heard about people being attacked with harmful gasses in their homes by people who are connected to the ruling party. These attacks started in my birth town, [name of town omitted]. A number of people lost lives and others got injured in these attacks these incidents were widely reported in the local and international media.
I have not heard any updates about my protection visa application since I applied.
As an Australian citizen [the Applicant’s son] will be impacted if I were forced to return. He will face the same persecution as me as he is my son.
[149] A3, page 193.
She also submitted evidence from her partner which stated that:[150]
I know [the Applicant] also has a political violence phobia for Zambia as she was once a victim of political violence before coming to Australia. She was attacked on her way from work by a gang of political thugs who stripped her and almost killed her simply because they suspected her to belong to an opposing party. Recently online media has been awash with reports of political and mob justice killings in Zambia, which leaves [the Applicant] with flashbacks. She never felt safe in Zambia and she never wanted to bring up [the Applicant’s son] in such an environment. I also fear for her safety in Zambia if she were to meet the co-accused and instigator of the offence committed. He comes from Zambia and he may end up being deported to that country.
[150] R2, G20, pages 156-157.
By way of supporting country information, the Applicant submitted two newspaper articles.[151] One article refers to a Zambian mob killing 43 suspected ‘gas-spray attackers’. The article reports the Zambian government claiming that the gas attacks were part of ‘an orchestrated plan to destabilize the country’ in the lead up to the 2021 elections. The other article refers to a call from Catholic bishops demanding answers from authorities over who was responsible for gassing incidents. No other country information or corroborative evidence was provided by the Applicant to support her claim to be owed non-refoulement obligations.
[151] A3, pages 155-157.
The Applicant testified regarding her claims to fear harm if returned to Zambia at the hearing.[152] The Applicant’s partner was also asked about her claims.[153]
[152] Transcript, pages 17, 25-32.
[153] Transcript, pages 40-50, 43-44.
There was significant divergence between the evidence given by the Applicant and her partner regarding the claimed events in Zambia. In particular, the Applicant’s partner testified that she remained living in the same area of Lusaka through the period she said she had been moving to avoid harm following the alleged attack and that she remained working at the same supermarket (with his sister) throughout this period though she claimed she overheard the attackers talking about where she worked. These inconsistencies caused the Tribunal to have serious concerns regarding the credibility of her claims. The Tribunal had additional concerns with the Applicant’s claims to fear harm on the basis of her political activities in Zambia, including:
·a lack of evidence to support her claimed membership and involvement with the United Party for National Development (the UPND), an opposition party in Zambia;
·a lack of any country information to support claims of authorities targeting UPND members or supporters;
·a lack of any country information to support a claim that Bemba members of the UPND are targeted or persecuted;
·the significant delay in the Applicant raising claims for protection until 2017, despite claiming to have left Zambia in 2010 due to fears of harm from government authorities;
·the significant time which has lapsed since the claimed events occurred and the lack of any adverse attention to the Applicant or her family members in the period since the claimed events, other than a claimed inquiry as to her whereabouts in 2012; and
·the Applicant’s testimony that she had not been politically involved with the UPND since leaving Zambia and did not intend to be involved on her return to Zambia.
The Applicant did not raise any fears at the hearing with respect to her co-accused being deported to Zambia. In any event, as Master A is an Australian citizen, the Tribunal draws the inference that his father, the Applicant’s co-accused, is also a citizen. The Tribunal does not regard there to be a real chance his citizenship would be cancelled and he would be deported to Zambia and as such does not accept this claim articulated by the Applicant’s partner.
Similarly, Master A is an Australian citizen and while his potential relocation to Zambia raises issues regarding his best interests, it does not raise issues of non-refoulement obligations, which do not apply to Australian citizens, and is thus not relevant to this consideration.
Following evidence at the hearing, the Applicant’s representative conceded that with respect to non-refoulement claims: [154]
there may be insufficient evidence before the tribunal to make a finding that an obligation arises in this matter, and that there was also some conflicting information about the applicant relocating prior to coming to Australia and when the event actually occurred and what involvement would be if she goes back.
However, the Applicant contended that this factor was not outweighed by the expectations of the Australian community or the protection of the Australian community given the Applicant’s circumstances, including her lack of prior criminal history, her positive contributions to Australia and the impact of the decision on her son.
[154] Transcript, page 61.
The Tribunal notes that, in assessing any international non-refoulement obligations that might arise if the Appellant is returned to Zambia, the level of analysis required by the Tribunal is less than that required in assessing a claim for a protection visa.[155] The Tribunal further notes that it is not possible for the Tribunal to engage in the sort of evidentiary analysis that would be undertaken if claims for protection were examined in the context of a protection visa application. With that said, the Tribunal must make an assessment based on the information before it, including the evidence offered by the Applicant to support her contention that non-refoulement obligations arise as a relevant consideration weighing in favour of revocation of the Cancellation Decision.
[155] Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 at [28].
Having considered the submissions and evidence of the Applicant, the Tribunal is not satisfied that the Applicant presented to the Tribunal ‘a serious and substantive basis in fact and in law’ for her claims that her return to Zambia would breach Australia’s non-refoulement obligations.[156] The Tribunal is concerned that, to the extent that the Applicant made claims to fear harm on return to Zambia, there was insufficient evidence to establish such fears were genuinely held or well-founded. The Tribunal is also concerned that the Applicant did not identify any specific non-refoulement obligations which arose other than with respect to claims she has made in the context of her protection visa application. Accordingly, the Tribunal is not satisfied that even if Applicant were returned to Zambia as a consequence of the Cancellation Decision her return would raise issues of non-refoulement such as might weigh in favour of revocation of the cancellation of her visa.
[156] Omar [82].
It is open to the Applicant to provide further evidence for consideration by the Minister in the context of her protection visa application. The Tribunal accepts that a different decision-maker may be satisfied on the material before them that protection obligations are owed to the Applicant. In the event that such a determination is made a non-refoulement obligation may arise. However, the Tribunal is not satisfied that there is sufficient evidence to make such a finding on this application.
The Applicant raised her claims to fear harm more generally on return to Zambia as ‘another reason’ in the context of impediments to her removal and the best interests of her youngest son. The Tribunal has considered those issues in the context of those considerations.
On the basis of the evidence before it, the Tribunal is not satisfied that an issue of

non-refoulement obligations arise with respect to the Applicant’s return to Zambia. This is both because the practical consequence of non-revocation in this case is not that the Applicant would be removed from Australia and because the Applicant has failed to provide any credible evidence that she is owed non-refoulement obligations. The Tribunal finds that this consideration is neutral in the Applicant’s circumstances.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction No 79 provides that the Tribunal should consider:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, 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, including the effect of
non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
As noted above, para 6.3(6) of the principles section of Direction No 79 states:
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
Further, para 6.3(7) of the principles section of Direction No 79 states, in part:
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
The Applicant contended that her strong work history including her dedication to caring for the elderly and social connections through her friends, partner and Master A weighed heavily in favour of revocation of the Cancellation Decision.[157]
[157] A1, pages 22-25.
The Respondent conceded that the Applicant has ties to Australia but contended that her contribution in the aged care sector should not be regarded as positive given it was in that context that she offended against her employer.[158]
[158] R1, page 15.
As discussed above and with the parties at the hearing, the practical effect of the decision regarding revocation of the visa cancellation in this instance would be that the Applicant may be in immigration detention following her release from prison. As such the consequence of non-revocation is not that she would be removed from Australia but that she may not be in the community. This affects the assessment of the impact of the decision on her ties to Australia, thought it does not render those considerations irrelevant.
The Applicant arrived in Australia as an adult in 2010. Her offending began in December 2015 when she received the first fraudulent payroll payment and did not report it to her employer. This was more than five years after her arrival in Australia. The offending ceased in March 2018.
The Applicant submitted a number of third-party supporting statements including from family, friends and work colleagues, evidencing her employment history and social connections in Australia.[159] The Applicant submitted that she has a strong work history, providing an important positive contribution to the Australian community through her work caring for elderly people in aged care and nursing homes. Statements of support from former work colleagues spoke to the Applicant’s care, empathy and dedication to the residents of the facilities in which she worked.[160]
[159] See R2, G20-G28; A3, pages 1-4, 164-166; 167.
[160] R2, G21, page 161, G26, page 175-176.
The Tribunal accepts that the Applicant has a close relationship with her partner and Master A and that, having reunited, the Applicant and her partner are committed to making a life together in Australia. It was clear from the evidence that her incarceration and the resulting separation has been difficult for Master A who has suffered emotional hardship as a result. The Tribunal accepts that he and the Applicant’s partner would continue to suffer through separation if the Cancellation Decision is not revoked, including if the Applicant were in immigration detention where access and visitation is currently impacted by COVID-19 restrictions.
In the event the Applicant is removed to Zambia, this would have a significant impact on her partner who would either: be left with the ongoing care of her young son; be separated from his partner and the child with whom he has formed a strong bond over the course of the year as his primary carer; or relocate to Zambia to be with his partner and step-son thus separating him from his children in Australia and his established life and career here. There can be no doubt as to the significant impact such decisions would have on the Applicant’s partner. These impacts would be felt and shared by his family in Australia including by his sister and adult children.
The Applicant’s partner has made several return visits to Zambia and the Tribunal considers that he would be able to continue to visit if the Applicant were removed. This would lessen the emotional hardship that both the Applicant and her partner are likely to suffer from separation. However, the Tribunal accepts that their capacity to travel would depend on their financial circumstances and may also be impacted by COVID-19 travel restrictions and flight availability. The Tribunal also considers that the Applicant and her partner and friends would be able to maintain contact in other ways, such as by phone or videocalls.

As noted above, the Applicant’s Australian citizen child represents a strong tie to Australia. The Tribunal accepts his best interests would be served by remining in Australia. The Tribunal also considers that there is a possibility his relocation might be opposed by his father, which may raise the prospect of his having to remain in Australia potentially indefinitely. That would undoubtedly be a significant hardship on the child and on the Applicant. Likewise, if the child were able to relocate to Zambia with his mother, in the event she is removed, he would likely face significant hardship resettling in that country.
The Tribunal accepts that the Applicant has held regular employment while in Australia and that she has conducted herself diligently with respect to those in her care. The Tribunal also accepts this contribution was undermined by her decision to steal from her employer and thus breach an important trust. The Tribunal accepts the Applicant has positive prospects for employment notwithstanding her offending given the demand in her line of work and the commitment of others to assist her to find work and continue study.
As noted above, the Applicant submitted many supportive statements from family members and friends. These statements speak to the community support for the Applicant, to a belief in her honesty and to a commitment to help her rebuild and not reoffend. The references speak to the belief that the Applicant was caught in circumstances that caused her to act out of character in offending. They attest to her kindness and concern for others, including for those in her care. The Tribunal places weight on the strength of these statements and the broad range of support offered for the Applicant.
The Tribunal accepts that the Applicant has strong family and social ties in Australia, in particular through her Australian citizen child and partner. The Tribunal also acknowledges that her family members and close friends will suffer emotional hardship if the Cancellation Decision is not revoked.
Having regard to all of the Applicant’s circumstances, the Tribunal considers that her ties to Australia weigh in favour of revocation of the cancellation of his visa.
Impact on Australian business interests
Paragraph 14.3(1) of Direction No 79 provides that the Tribunal is to consider the:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
While the Applicant has been in regular employment since she has been in Australia, there was no specific evidence regarding the impact of non-revocation of the Cancellation Decision on business interests in Australia. The Applicant’s representative suggested that the issue of restitution to the Applicant’s employer may be relevant to this consideration.[161] However, although the victim of the offending was an Australian business, there was no evidence that non-revocation of the Cancellation Decision would compromise the delivery of a major project. Further, though the Applicant works in an important service industry, aged care, there was no evidence that non-revocation of the Cancellation Decision would compromise the delivery of that service. The Tribunal considers the issue of restitution is more appropriately considered in the context of the impact of non-revocation on victims of the offending. Accordingly, the Tribunal finds that this consideration has no application in the present matter.
[161] A1, page 25 [156].
Accordingly, the Tribunal finds this consideration to be neutral in the Applicant’s case.
Impact on victims
Paragraph 14.4(1) of Direction No 79 provides that the Tribunal is to consider the:
Impact of a decision not to revoke 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 that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The Tribunal has limited information before it to assess the impact of a decision not to revoke the Cancellation Decision on the victims of the Applicant’s offending or on the family members of the victims. In this case the victim was the Applicant’s employer. Relevantly, the Applicant’s sentence included an order for restitution to the employer for monies stolen. As the sum was not insignificant, it is reasonable to assume the prospect of even partial restitution would be significant for the victim (or their insurer). The Applicant submitted that non-revocation of the Cancellation Decision would decrease the Applicant’s capacity to repay the monies stolen, as she would have poorer employment prospects and income in Zambia. The Tribunal accepts that there may be a greater likelihood of some restitution being paid to the victim if the Cancellation Decision is revoked.
However, there is no detailed evidence as to how victims of the Applicant’s offending would be impacted by non-revocation of the Cancellation Decision and the views of the victim are not known. Further, there is no evidence about the impact on members of the Australian community more generally, aside from the risks of harm to the community, which are discussed above in the context of the protection of the Australian community.
The Tribunal finds this consideration weighs slightly in favour of revocation in the Applicant’s case.
Extent of impediments if removed
Paragraph 14.5(1) of Direction No 79 provides that the Tribunal is to consider the:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen’s age and health;
b) Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
As noted above, the Applicant raised concerns regarding her potential return to Zambia both in the context of claimed non-refoulement obligations and in the context of impediments if she is removed to Zambia.
As further noted above, the Tribunal regards on the evidence that the practical consequence of the Cancellation Decision is not removal to Zambia. Notwithstanding this, the Tribunal has considered impediments in the event the Applicant were to be removed.
The Applicant contended that she would face significant impediments if she is removed from Australia including:[162]
·her lack of family and social supports in Zambia, where she has not returned since leaving in 2010. This includes estrangement from her sister who has cast some doubt on her parentage with a consequence that she may be disinherited;
·difficulty finding employment in Zambia where she has no experience working as a carer;
·the impact on her plans to study nursing;
·the fact she may be targeted for real or imputed political support for UPND;
·lack of personal security caused by social unrest and political instability in Zambia, including gassing attacks originating in her town of birth;
·the cost and delay involved in obtaining a visa for Master A to travel to Zambia;
·the impact of attempting to establish herself as a single mother of a young child who is not a Zambia citizen and is unfamiliar with the country; and
·discrimination or lack of access to services which may be suffered by Master A who is not a Zambian citizen.
[162] A1, page 25.
The Respondent contends that the Applicant would faces few impediments in returning to Zambia having regard to her age, health, education, diverse work experience and the length of time she has been in Australia (over 10 years). The Respondent also contended that the Applicant would have the same access to social, medical and economic support generally available to other citizens of that country.[163]
[163] R1, page 15-16.
With respect to the submissions regarding social security and welfare payments, it is clear that Direction No 79 refers to the context of services available to citizens generally in the country to which the person is being returned. While this would not preclude the Tribunal from having regard to particular impediments the Applicant may face in that context, it does, in the Tribunal’s view mean that the lack of equivalent social welfare or other services in a country will not of itself amount to an impediment if removed. With respect to the Applicant’s son, it is unclear whether he is entitled to Zambian citizenship or what access he would have to services in Zambia, though the Tribunal accepts his access to social welfare may be more limited if he is not a Zambian citizen.
The Tribunal notes that the Applicant lived in Zambia until she was an adult. English is the official language of Zambia. As the Applicant grew up in Zambia, the Tribunal considers that she is unlikely to face substantial language or cultural barriers upon returning there.
The evidence of Dr Watts suggests that the Applicant has some underlying psychological issues, however there is no evidence that these issues would be an impediment to her return.[164] Likewise there is no evidence of any other health issues which might impede the Applicant’s return to Zambia. While there is evidence Master A is suffering from behavioural issues, these are associated with his separation from her which would not be an issue if returned with her but may worsen if he were left in Australia.[165]
[164] A2, pages 179-184.
[165] A2, page 168-177.
On the evidence before the Tribunal, the Applicant has family in Zambia, including her older son, siblings and extended family. While she claims to be estranged from one sister, she gave evidence that she is in contact with other members of her family and has been financially supporting them. She also has a sister living overseas. The Tribunal regards that she would have some family support in Zambia. Further, the Applicant’s partner indicated he would provide support for her if she were returned to Zambia and while the Tribunal accepts such support may not continue indefinitely, the Tribunal regards that the Applicant would have assistance, including financial assistance, in resettling herself and Master A if he were to relocate with her.[166] The Tribunal accepts this support would be more limited than the support she would have from her partner if she were to remain in Australia.[167]
[166] Transcript, page 43.
[167] Transcript, page 39.
On balance, the Tribunal finds that the Applicant faces some impediments to removal which, weigh in favour of revocation of the Cancellation Decision. However, the Tribunal does not regard those impediments to be substantial in the Applicant’s case and gives limited weight to this consideration.
Impact of COVID-19 pandemic
As noted above, if the Tribunal affirms the Reviewable Decision, the likely practical effect will be that the Applicant would be detained in immigration detention once released from prison pending the determination of her protection visa application.
The Tribunal sought submissions on the impact, if any, the COVID-19 pandemic would have on the Applicant in the context of the matter before the Tribunal.
Given current restrictions on visitor access to immigration detention facilities due to the COVID-19 pandemic, if the Tribunal affirms the Reviewable Decision, the Applicant may face an additional period of separation from Master A until her protection visa application is determined, at which point she may be released into the community (if successful in that application) or removed to Zambia.
The Applicant submitted that she may face additional disadvantage on return to Zambia due to the uncertainty associated with COVID-19.[168] The Respondent submitted that international airports in Zambia are currently open and travellers will be required to present evidence of a negative COVID-19 test taken in the 14 days prior to arrival. Thus, it would be possible for the Applicant to return to Zambia.[169]
[168] A1, page 26.
[169] R1, pages 16-17, footnotes 21 and 22.
The Tribunal accepts that current COVID-19 restrictions may result in the Applicant spending additional time in immigration detention and limit the options for her returning to Zambia due to flight availability. However, as noted by Member Eteuati in FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294, [299], ‘[t]his may result in prolonged but not indefinite detention for the Applicant until the risk presented by the virus … subsides’.[170]
[170] See also Yu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1002, [118].
The Tribunal also accepts that the prospect of further time in immigration detention may cause additional stress to the Applicant and Master A and partner while she remains in detention. To the extent her return to Zambia is a potential consequence of a decision not to revoke the Cancellation Decision, the Tribunal accepts that public health responses to COVID-19 may impact the Applicant’s capacity to access services or seek employment on return to Zambia and on her family’s capacity to visit her there at least in the immediate future. This may extend the time it takes the Applicant to resettle in Zambia, increasing the stress of relocation.
This consideration weighs only slightly in favour of revocation of the Cancellation Decision.
CONCLUSION
A number of cases have dealt with how the exercise of balancing or weighing the considerations in Direction No 79 is to be undertaken. The leading case in this regard is Suleiman v Minister for Immigration and Border Protection[171] where Justice Colvin noted at 553 [40]:
There is no hierarchy of considerations expressed within the state of satisfaction required by s 501CA(4). Therefore, it would be contrary to s 501CA(4) to approach the matter on the basis that certain considerations were inherently less important in forming the state of satisfaction required by the Act.
[171] (2018) 74 AAR 545; See also Minister for Home Affairs v HSKJ (2018) 266 FCR 591; While these cases were generally looking at that exercise under Direction No 65, the same considerations apply to the exercise required by Direction No 79, which is materially in the same terms.
Looking at the first primary consideration, the protection of the Australian community,

the Tribunal has considered the nature and seriousness of the Applicant’s conduct and the risk to the Australian community should she reoffend. For the reasons set out above, the Tribunal finds the Applicant’s offence to be serious. Likewise, the harm that would be caused if the Applicant were to reoffend in a similar manner would include serious financial harm and accordingly is serious. However, the Tribunal has found that there is a very low likelihood of the Applicant reoffending. On balance, the Tribunal finds that this consideration weighs against the revocation of the Cancellation Decision, though limited weight is given to this consideration given the low risk of the Applicant reoffending.
The Tribunal finds that the second primary consideration, the best interests of the Applicant’s youngest son, Master A, who is an Australia citizen, weighs strongly in favour of revocation of the Cancellation Decision.
With respect to the expectations of the Australian community, the Tribunal finds that this consideration weighs against the revocation of the Cancellation Decision, however, the Tribunal considers in all the circumstances of the Applicant’s case and having regard to the other considerations, less weight should be given to this consideration. In relation to the ‘other considerations’ identified in Direction No 79, the Tribunal places no weight on Australia’s non-refoulement obligations, which the Tribunal does not consider arise on the information before the Tribunal. The Applicant has strong ties to Australia and the strength, nature and duration of her ties weigh in favour of the revocation of the Cancellation Decision. The impediments to removal are not significant and this factor is given limited weight in favour of revocation of the Cancellation Decision. The other consideration of the impacts of the COVID-19 pandemic weighs slightly in favour of revocation of the Cancellation Decision.
The impact on Australian businesses is neutral in the Applicant’s case and the impact on victims, being the Applicant’s former employer in favour of whom a restitution order is in place, weighs slightly in favour of revocation of the Cancellation Decision.
The Tribunal finds that the primary consideration of the best interests of Master A substantially outweighs the other primary considerations of protection of the Australian community and the expectations of the Australian community. The other considerations which weigh in favour of the Applicant further add to this weight, and to the Tribunal being satisfied that there is another reason to revoke the cancellation of the Applicant’s Visa. Having undertaken the weighing of the considerations for and against the revocation of the Cancellation Decision, the Tribunal finds that the considerations which weigh in favour of the revocation of the cancellation of the Applicant’s visa outweigh the considerations which weigh against the revocation of the cancellation of the visa.
Accordingly, the Tribunal finds that the correct and preferable decision is that there is ‘another reason’ why the Cancellation Decision should be revoked.
DECISION
The decision of the delegate of the Respondent, dated 1 September 2020, not to revoke the cancellation of the Applicant’s Class WA Subclass 010 Bridging visa A is set aside and substituted with the decision that the cancellation of the Applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Migration Act.

I certify that the preceding 209 (two hundred and nine) paragraphs are a true copy of the reasons for the decision herein of Member S Burford

...[Sgd].....................................................................
Associate
Dated: 25 November 2020

Date of hearing: 12 November 2020

Solicitors for the Applicant: Estrin Saul Lawyers

Solicitors for the Respondent: Sparke Helmore Lawyers

Transcript, page 62-63. This refers to a Bridging R (Class WR) visa which is a visa pending removal. See

s 501E(2) and Migration Regulations 1994 reg 2.12AA.

Date of hearing:	12 November 2020
Solicitors for the Applicant:	Estrin Saul Lawyers
Solicitors for the Respondent:	Sparke Helmore Lawyers