XSDK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 1548

XSDK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1548 (1 June 2021)

Division:GENERAL DIVISION

File Number(s):2021/1577      

Re:XSDK  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member  

Date:1 June 2021  

Place:Sydney

The Tribunal decides that the decision under review, being the decision of a delegate of the Respondent dated 5 March 2021 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is set aside. In substitution it is decided that the decision to cancel the visa made on 29 April 2020 be revoked. 

...............................[SGD].........................................

Mr S Evans, Member

CATCHWORDS

MIGRATION – applicant’s visa mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (“the Act”) – visa cancellation not revoked under subsection 501CA(4) of the Act – application for review made to AAT – provisions of the Act considered, particularly sections 501 and 501CA – direction no. 90 considered – applicant’s background and other characteristics/factors considered – decision under review set aside and substituted.

LEGISLATION

Migration Act 1958 (Cth)

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1143

SECONDARY MATERIALS

Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Mr S Evans, Member

1 June 2021

1. The Applicant, XSDK (“the Applicant”), seeks review of a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) not to revoke the mandatory cancellation of her visa. 

   INTRODUCTION

2. The Applicant is a 37 year-old citizen of New Zealand who first arrived in Australia on 14 April 1984 when she was six months old. On 9 December 2019 she was convicted of dangerous driving occasioning grievous bodily harm and an associated offence for which she was sentenced to two years’ imprisonment. 

3. Consequently the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (“the visa”) was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on 29 April 2020. On 26 May 2020 the Applicant made representations seeking revocation of the mandatory cancellation. Following the submission of additional information by the Applicant, on 5 March 2021 a delegate of the Respondent decided under subsection 501CA(4) of the Act not to revoke the mandatory cancellation of the visa.

4. On 17 March 2021 the Applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of the delegate’s decision. 

   ISSUE TO BE DETERMINED

5. The issue for the Tribunal to consider is whether to revoke the original decision to cancel the Applicant’s visa pursuant to subsection 501CA(4) of the Act.

6. The Tribunal may revoke the original decision if the Tribunal is satisfied:

   (a)that the Applicant passes the character test as defined by paragraph 501(6)(a) and subsection 501(7) of the Act; or

   (b)that there is another reason why the original decision should be revoked: paragraph 501CA(4)(b).

7. It is agreed by both parties that the Applicant does not pass the character test as she has a “substantial criminal record” as defined by the Act. Therefore, the only relevant issue is whether there is another reason to revoke the original cancellation decision.

   RELEVANT LAW AND MINISTERIAL DIRECTION NO. 90

8. Section 501CA of the Act applies where the Minister makes a decision under subparagraph 501(3A)(a)(i) to cancel a visa that has been granted to a person.

9. Subsection 501(3A) of the Act states that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6) and 501(7).

10. Paragraph 501(6)(a) of the Act provides that a person does not pass the “character test” if the person has a “substantial criminal record”. Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.

11. The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:

    (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.

12. Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.

13. The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction” or “Direction 90”).

14. Paragraph 5.2 of Direction 90 provides principles which I have considered when reviewing the Applicant’s application. It relevantly provides: 

    (1)  Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)  Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)  The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (4)  Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non­ citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non­ citizens who have lived in the Australian community for most of their life, or from a very young age.

    (5)  Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

15. Part 2 of the Direction identifies the considerations the Tribunal must have regard to when determining whether to exercise the discretion to revoke the mandatory cancellation of a visa. The primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be considered secondary considerations as in certain circumstances other considerations may outweigh primary considerations. 

16. The primary considerations in the Direction are: 

    (1)  protection of the Australian community from criminal or other serious conduct;

    (2)  family violence committed by the non-citizen;

    (3)  best interests of minor children in Australia affected by the decision; and

    (4)  expectations of the Australian Community.

17. Direction 90 also sets out other considerations which must be taken into account where relevant which include but are not limited to: 

    a)international non-refoulement obligations;

    b)extent of impediments if removed;

    c)impact on victims; and

    d)links to the Australian community.

    PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT

18. The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. When considering the protection of the Australian community, Direction 90 requires decision-makers to have regard to:

    a)the nature and seriousness of the non-citizen’s conduct to date; and

    b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    The nature and seriousness of the Applicant’s conduct to date

19. The Applicant’s offending commenced in 1998. She appeared in the Children’s Court for various offences ranging from common assault, robbery, stealing, being carried in conveyance without consent and intimidation. 

20. Her offending continued into adulthood and on 24 August 2005 she was convicted of goods in personal custody suspected of being stolen (not m/v). The offence put the Applicant in breach of a six-month suspended sentence for take & drive w/o consent of owner – T2 and shoplifting value <=$2000-T2.  She was sentenced to a six-month term of imprisonment for these offences, which was confirmed on appeal. 

21. On 19 April 2017 the Applicant was sentenced to two bonds for illegally taking substances into a prison. 

22. On 16 January 2021 the Applicant was also convicted of two charges of shoplifting value <=$2000-T2, which put her in breach of a community corrections order for the offences of common assault-T2 and another shoplifting value <=$2000 charge. The Applicant received a sentence of four months’ imprisonment for these charges. 

23. The Applicant also has numerous convictions for driving offences including drive while disqualified from holding a licence and drive on road etc while licence suspended. 

24. The Applicant was convicted of common assault-T2 against her partner, Mr MA, on 11 May 2018 and placed on a 12 month good behaviour bond for this offence, which is considered in further detail under Primary Consideration 2, below. 

    Dangerous driving occasioning grievous bodily harm (“the car accident”)

25. On 9 December 2019 the Applicant was convicted of dangerous driving occ GBH- drive under the influence-T1 and sentenced to two years’ imprisonment with a non-parole period of 15 months. 

26. The circumstances of the offending are that on 18 April 2018 the Applicant was driving late at night under the influence of methylamphetamine. Her vehicle ran off the road and crashed into a tree causing grievous bodily harm to her then eight year-old son (“Child Q”) who required multiple surgeries. The offence also resulted in the Applicant breaching a section 9 bond for bring/introduce small quantity of drug into detention centre and she was re-sentenced to two months’ imprisonment for this offence. 

27. In sentencing in the District Court of NSW Judge Harris described the circumstances of the car accident. At around midnight the Applicant was at her home and she agreed to give a friend, Mr S, a lift to his house but she also wanted to meet someone. Mr S says that around an hour before they left he saw the Applicant inject herself with methylamphetamine. 

28. At approximately 1:30 AM the Applicant, Mr S and Child Q got into the Applicant’s vehicle.  The Applicant was driving, Mr S was in the passenger seat and Child Q was in the middle back seat. Mr S noticed that the vehicle was beginning to veer and he saw that the Applicant’s eyes were closed. Mr S called out the Applicant’s name but she did not respond. The vehicle ran off the road and collided with a tree on the opposite side of the road to the path of travel. The vehicle came to a stop and the driver’s airbag deployed. When police arrived they searched the Applicant’s vehicle and saw a large amount of blood on the rear passenger seat. 

29. The Applicant was taken to hospital where hospital staff obtained a blood sample from her.  Forensic analysis later identified that the Applicant’s blood contained amphetamine and methylamphetamine and as well as low levels of other drugs. A pharmacologist subsequently provided an expert opinion that at the time of driving the Applicant was under the influence of the combined acute and withdrawal effects of methylamphetamine to the extent that her driving would have been impaired. 

30. Child Q was required to have a series of operations following the accident. Recovery from the accident was a long process for the child.  At the time of sentencing Child Q was reported to continue to have nightmares about the accident as well as medical complications resulting from the injuries he sustained.   

31. The Applicant was sentenced for the April 2018 offence in in December 2019.  In the interim she was referred to the Magistrates Early Referral Into Treatment (“MERIT”) program to address her drug addiction. 

32. I note that the Applicant maintains that she did not inject methylamphetamine one hour prior to the offence as described by Judge Harris, but I prefer the court’s version of events as there is no evidence which supports her version of events.  

33. On the evidence, the Applicant’s offending to date is very serious. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and I accept that the three terms of imprisonment to which she has been sentenced are a reflection of the seriousness of the offences involved. 

34. I consider the Applicant’s offending is aggravated by her record of breaching good behaviour bonds including at the time of the accident which resulted in her being sentenced to two years’ imprisonment. 

35. Whilst acknowledging the grievous bodily harm was at the lower end of the scale, Judge Harris found that the Applicant’s moral culpability was high given she had injected drugs only an hour before driving, the age of her son at the time and there being no pressure to place her son in the car. 

36. There is no doubt that the Applicant’s offending is frequent and of increasing seriousness, and this is reflected in the sentences which have been imposed. The Applicant has not previously been warned or otherwise been made aware of the consequences of her offending on her migration status, however the Direction states that the absence of a warning should not be considered in the Applicant’s favour.  The Applicant’s extensive criminal history and the harm that was caused to her son reflects poorly on her and leads me to conclude that her offending should be viewed very seriously.  

    The risk to the Australian community

37. Paragraph 8.1.2(1) of Direction 90 provides that in considering the protection of the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm lessens as the seriousness of the potential harm increases.  In assessing the risk posed by the non-citizen to the Australian community, I should consider, 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 reoffending and evidence of rehabilitation achieved by the time of decision, with weight to be given to the time spent in the community since the non-citizen’s most recent offending. 

38. The Applicant expressed remorse for her offending and told the Tribunal that as a mother when she looks back at what she has done she is disgusted in herself and what she has put her own mother through. She acknowledged that she did not consider the impact of her offending at the time and claims that she is sorry for her behaviour and embarrassed by her criminal history. I accept this as genuine. 

    Drug use

39. The Applicant concedes that she has had drug addiction issues since she was 19 years of age. In his sentencing remarks Judge Harris found there was a direct nexus between her drug use and offending. 

40. The Applicant’s history of drug use is considered in a report prepared by psychologist Kerry Watson dated 29 November 2019.  From age 19 the Applicant was using amphetamines most weekends and within six months she had gone from intranasally using the drug to intravenous use with increasing frequency. Within two years she had developed an addiction to amphetamines which endured for some eight years with daily intravenous use.  At the age of 22 she began smoking marijuana a few times a week, a pattern of consumption which continued for some five years.  From 2011 the Applicant ceased using amphetamines and marijuana entirely and she maintained full remission for six and a half years. 

41. In January 2017 the Applicant relapsed and began heavily abusing methamphetamines.  She rapidly developed an addiction to methamphetamines which she claims started within one week of her using drugs again. Following her relapse into drug use the Applicant maintained daily intravenous use of methamphetamines for eight to nine months, after which she reduced her methamphetamine use to one or two times per week.  

42. It is reported that the Applicant described a continuation of this pattern of reduced methamphetamine use through the six months prior to the car accident. Thereafter she described a further decline in her methamphetamine usage to once fortnightly in addition to occasional marijuana use. It is also reported by Ms Watson that the Applicant attributed her propensity to abuse illicit drugs to not knowing any other way to cope when things get hard. She was, however, able to accurately identify the negative impact of drug abuse on her personal functioning and psychological well-being.

43. Ms Watson states that the Applicant’s account of her mental health is consistent with a diagnosis of Major Depressive Disorder which she believes has been further complicated by the Applicant’s drug use. She recommended that the Applicant undertake psychological counselling and engagement with her treating psychologist for a period of at least six months.

44. A report dated 3 May 2021 by psychologist Dr Emily Kwok is before the Tribunal.  Dr Kwok also provided evidence under affirmation at the hearing.

45. Dr Kwok states that without appropriate treatments the Applicant poses a moderate risk of reoffending. To treat her drug addiction Dr Kwok recommends the Applicant embark on a combination of psychological therapy and group therapy for substance abuse which should be ongoing for at least six months but potentially up to one year. Treatment, which requires a combination of therapies, should include attending groups such as Narcotics Anonymous on a weekly basis.  Dr Kwok also recommended medication to address emotional symptoms of the Applicant’s depression. 

46. Asked if she would recommend a residential rehabilitation program, Dr Kwok suggested that it would be worthwhile monitoring the Applicant’s progress with the treatment program outlined above, with a view to placement in a residential rehabilitation program should she have any relapse symptoms. Regarding potential relapse, Dr Kwok agreed that an association with other drug users would be a considerable risk factor. 

1. Should she be released back into the community, the Applicant intends to move back into the home she shares with her partner, Mr MA. She and Mr MA have been in a relationship for 14 years and Mr MA is the father to the Applicant’s three youngest children. Like the Applicant, Mr MA uses illicit drugs and both he and the Applicant have a history of using together. Mr MA currently uses heroin but has plans to cease doing so if the Applicant is returned to the community. 

2. During the hearing the Applicant conceded that should Mr MA continue to use drugs whilst she is living with him it will make it harder for her not to take illicit drugs, but indicated that she is prepared to leave the relationship if he does not cease using illicit drugs as promised.  Though the couple have been engaged for two years, the Applicant told the Tribunal that she is prepared to live elsewhere in order to maintain her sobriety. The Applicant points out that both she and Mr MA were abstinent and drug-free between 2011 and 2017, an extended period of sobriety that began when Mr MA entered a court ordered drug rehabilitation program. 

3. The Applicant and Mr MA have had a long and at times violent and volatile relationship. In 2017 the Applicant was seriously injured after she jumped onto the bonnet of Mr MA’s vehicle following an argument. She was thrown three and a half metres from the car and sustained head injuries. Partly as consequence of the incident, Mr MA was imprisoned for 15 months, which the Applicant says left her feeling a tremendous sense of guilt.  She claims that this was the reason that she ended her extended period of sobriety and began using illicit drugs again in 2017.  

4. To date, the Applicant’s attempts to address her illicit drug use have been of limited success.  After the accident in which her son was injured she was charged with dangerous driving and the court referred her to the MERIT program to address her drug use. 

5. In an affirmed statement dated 27 August 2018 a NSW Department of Communities and Justice (“DCJ”)[1] out of home care worker records that the Applicant entered the rehabilitation program on 23 July 2018 but self-discharged on 13 August 2018. The program was supposed to last for twelve weeks, and the Applicant told the Tribunal that she was not in the right headspace at the time and knew she was going to gaol.

   [1] Formerly the Department of Family and Community Services.

6. On 11 January 2019 the Applicant was again accepted into the MERIT program. A report from NSW Drug Health Services dated 31 January 2019 records that she had attended one appointment and cancelled two others. A subsequent non-compliance report dated 27 March 2019 records that she had completed a total of three counselling appointments, had not met the obligations of the program and would be removed from the program. 

7. A report dated 14 May 2020 details the Applicant’s participation in the Intensive Drug and Alcohol Treatment Program (“IDATP”) she commenced in March 2020. The report states that she was an active member of group activities and regularly participated. She displayed a high level of understanding throughout the RUSH (Real Understanding of Self-Help) program, but reported difficulty implementing RUSH strategies, particularly in her relationship with her partner. Whilst in the RUSH program the Applicant failed a urine analysis test for Buprenorphine which she claims she used on account of “feeling overwhelmed with deportation concerns”. 

8. Though her participation in drug treatment programs has been of limited success, I accept that the Applicant now appreciates the extent to which her offending is related to her drug use.  It is of some reassurance that the Applicant recognises that should she return to live with Mr MA, and he continues to use drugs, it will increase the risk that she may do the same.  The Applicant also indicated insight into her drug use and the extent to which it is precipitated by her difficulty coping with her emotions.

9. The Applicant claims that her recent period of sobriety has been an “eye-opening experience” which has enabled her to see how much addiction has control of her life and that she is willing to do whatever it takes to remain sober. She claims that she is now able to ask for help and would not turn to drugs again. Notably, she will do whatever is required in order to regain custody of her children. The Applicant now has the support of the Women’s Justice Network which has paired the Applicant with a mentor who will act as a guide and support to help her maintain sobriety and take positive steps to rebuild her life, including gaining employment. The Tribunal heard evidence from Ms L of the Women’s Justice Network who confirmed that the Applicant’s engagement with her mentor had been both positive and consistent. She also gave evidence that participants in the program had a very low rate of reoffending. 

10. The Applicant’s drug use was central to the Minister taking her children into care following the car accident, yet she continued to regularly use drugs after they were removed. Based on the evidence of the Applicant and the written statements of her children, I accept that her continued use of drugs speaks to the strength of her addiction more than disregard for her children.

11. Both the Applicant and Mr MA have undertaken courses which may provide some of the skills and coping mechanisms required to lessen the risk of further drug use. Evidence before the Tribunal indicates that the Applicant has successfully completed in March and April 2021 courses relating to anger management, confidence building, anxiety therapy, positive parenting techniques, stress management, understanding addictions, building self-esteem, dealing with difficult people, depression management, healthy relationships, negotiation skills, conflict resolution.  She also completed a course in domestic violence in May 2021.

    Conclusion as to the protection of the Australian community

12. I accept the Applicant’s evidence that she did not offend during the six year period she was free of drugs. Based on this evidence alone, I am satisfied that should the Applicant maintain her abstinence from illicit drug use there is a reasonable likelihood that she will not reoffend. She has demonstrated insight into her offending, remorse for her crimes and the damage she has done, most notably to her son, and a genuine desire to regain custody of her children. She acknowledges that without sustained effort founded in sobriety she is unlikely to regain custody of her children. In balancing these factors against her long history of offending, the extent to which drugs have influenced her behaviour and her limited success in overcoming her addiction to date, I find that there is a moderate risk that the Applicant may reoffend. 

13. The nature of the harm to individuals or the Australian community should the Applicant continue to offend is properly informed by the nature of her offending to date. If the Applicant were to reoffend there is a significant risk that it could result in further physical harm to members of the Australian community who are passengers in the vehicle or other road users. If the Applicant were to commit further theft offences, this would likely result in financial harm to Australian citizens and businesses. Continued offending and disregard of court orders will result in wasted police and court resources. 

14. In light of the moderate risk of reoffending, the persistent nature of the offending to date and the nature of the harm that would result should the Applicant reoffend, I give medium weight to this consideration, which weighs in favour of not revoking the Applicant’s visa. 

    PRIMARY CONSIDERATION 2 – WHETHER THE CONDUCT ENGAGED IN CONSTITUTED FAMILY VIOLENCE

15. The second primary consideration is whether the conduct engaged in by the Applicant constituted family violence. Direction 90 subparagraph 8.2(3)(a) tp 8.2(3)(d) provides that in considering the seriousness of the family violence engaged in by the noncitizen, factors such as the frequency of the conduct, any trend of increasing seriousness, the cumulative effect of repeated acts of family violence, rehabilitation achieved and whether the noncitizen has reoffended since being formally warned are relevant factors.

16. The Applicant was convicted of common assault – T2 against her domestic partner on 11 May 2018.  She was initially placed in a 12 month section 9 bond for the offence but was ultimately sentenced to 4 months imprisonment after breaching her bond by committing further offences.  The assault occurred on 11 February 2018 when the Applicant and Mr MA started arguing as she was learning to drive a vehicle with manual transmission. Mr MA was yelling at her and the Applicant yelled back “I’ll fucking stab you in the leg if you don’t help me”.  When she said this there was a 12 cm long kitchen knife sitting in the centre console of the vehicle. The Applicant admitted to police that she threatened Mr MA with the knife. Mr MA was also arrested in relation to this incident as he subsequently assaulted the Applicant. 

17. The Respondent contends that the seriousness of this incident of family violence is increased because it occurred while the Applicant’s daughter was present. However, the Respondent accepts that this is the only evidence of family violence perpetrated by the applicant.  Having regard to the “inherent nature of certain conduct such as family violence” as identified in the principle in paragraph 5.2(5) of Direction 90, the Respondent contends that this primary consideration weighs against revocation. 

18. The Applicant concedes that she has been convicted of an offence which involves family violence, however she argues that it was a one off incident.

19. As mentioned previously it is apparent that the Applicant and Mr MA have had a violent history, where the Applicant has predominantly been the victim of domestic violence. Most notably when she was thrown off the bonnet of the vehicle he was driving and sustained serious head injuries in 2017.  

20. I accept that the Applicant has not sought to downplay her offending and appears to take full responsibility as demonstrated by her early guilty plea and expression of remorse.  I am satisfied also that some of the courses she has undertaken whilst in prison may assist in avoiding further incidents of family violence. On balance, I give this consideration some weight in favour of not revoking the mandatory cancellation decision. 

    PRIMARY CONSIDERATION 3 - BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

21. The Applicant is the mother of five children, four of whom are minors. Child A was born in 2003 and no longer a minor. Child E born in 2004, Child H born 2008, Child Q born 2010 and Child U born 2013. She is also stepmother to two of Mr MA’s children from a previous relationship, Child Y born 2005 and Child S who was born in 2003 and no longer a minor. 

22. Direction 90 sets out a number of factors to be considered in assessing the best interests of minor children. These include the nature and duration of the relationship between the child and the person; the extent to which the person is likely to play a positive parental role in relation to the child; the likely effect that any separation from the person would have on the child, whether there are any other people who fulfil parental roles with the child, any known wishes of the child, and any evidence that the person abused or has neglected the child or that the child has otherwise suffered from trauma from the person’s actions including through exposure to family violence. 

23. All five of the Applicant’s children are currently in the care of her mother and father. The Applicant’s three youngest biological children, Child H, Child Q and Child U are currently in the care of the Minister and living with the Applicant’s parents in accordance with orders of the Children’s Court. These orders were made based on concerns held by DCJ following the car accident. 

24. The concerns outlined by DCJ include the significant long-term substance abuse by both parents, the parents’ criminal histories, lack of basic hygiene, proper nutrition and inadequate supervision of all children.  DCJ also reported that the children were displaying parentified behaviours and were being left in the care of unsafe people. Concerns were also expressed about medical neglect, suspicious injuries to the children and the hazardous and unhygienic state of the home. 

25. During the hearing the Applicant gave evidence about each of her children. In relation to the eldest child she explained that he was not called to give evidence in support of her application on account of his shyness and the Applicant’s desire not to make him feel uncomfortable, which I accept as genuine. 

26. The Applicant told the Tribunal that her eldest daughter Child E is 17 years of age and has finished school and currently has a job. The Applicant speaks to her at least twice a week.  She recounted that whilst she was imprisoned Child E tried to self-harm. The Applicant reassured Child E that she was always available to support her and could be contacted any time Child E was struggling with her mental health. The Applicant said her daughter is currently in a much improved state of mind. She gave evidence that they have a very strong relationship and that Child E is not particularly close to her biological father. The Applicant contends that Child E was not asked to give evidence at the hearing as she had recently started a new job and could not take the time off of work to do so. The Applicant gave evidence that should she be deported it would cause considerable distress for Child E. Further, as Child E has a long-term boyfriend it would not be feasible for her to relocate to New Zealand. 

27. Child H is currently 13 years old and the Applicant gave evidence that they have constant contact whilst the Applicant has been in detention. She reports that they have a great relationship and she said that Child H recently confided in her that he is coming to terms with his sexuality. The Applicant told the hearing that she was “thrown a bit” at first but said she would support him during this time. She said that Child H had confided in her about his sexuality as he feels that the Applicant is the only person he can be honest with. The Applicant currently speaks to Child H three times a week. Child H has some anger towards his father, Mr MA, and would prefer to stay living with the Applicant’s mother on account of his relationship with his father. 

28. The Applicant described her relationship with Child Q as being “fun” but noted he was having some difficulties at school. She gave evidence that not having his father present had caused some behavioural problems. Child Q was the child who was seriously injured in the car accident and the Applicant believes that for a period he blamed himself for what happened. She told the Tribunal that she reassured him that what happened was not his fault but speculated that should she removed to New Zealand, it was likely he would blame himself for that because he still feels some guilt about the accident. 

29. The Applicant reports that she is very close to Child U who also shares a strong bond with Mr MA. The Applicant views herself as Child U’s best friend and fears that she would miss out of important aspects of Child U’s life should she not be allowed to remain in Australia. 

30. In relation to her minor stepchild Child S, the Applicant told the Tribunal that she has been living with her and Mr MA since she was a baby. Though she is not the biological mother of Child S, she maintains that she has a very strong relationship with him.

31. The Applicant’s mother Ms W gave evidence at the hearing during which she confirmed that she had cared for the Applicant’s eldest children since they were aged five or six. In addition, she has cared for the Applicant’s three youngest children since they were taken into the care of the Minister by DCJ. 

32. Ms W gave evidence that all of the children had been deeply upset by their mother being imprisoned and then placed into detention. She confirmed that the children all have a strong bond with their mother, and noted that Child E has committed to living with her mother should the Applicant be released back into the community. Ms W speculated that should the Applicant return to New Zealand the children would not cope well with her extended absence.

33. In relation to the three younger children, Ms W gave evidence that she can see their “pain” at their mother’s predicament, and they talk about their mother a lot because they miss her. 

34. In questioning by the Respondent’s representative, Ms W confirmed that the Applicant’s children are currently well cared for by her and get to school on time. She said that the children help around the house and help care for each other. Ms W also confirmed that she is capable of continuing to care for the children should she be required to do so, but she stated that she could not replace the children’s mother. 

35. In relation to the Applicant, Ms W told the Tribunal that she would like to believe that her daughter has come to realise what is most important in her life. She noted that since the car accident and subsequent imprisonment she has noticed a shift in the Applicant which she said indicates that the Applicant has “come to her senses”. 

36. Asked about Mr MA, Ms W told the Tribunal that she was unaware that he and her daughter were engaged to be married for two years or that Mr MA continued to use drugs. Ms W gave evidence that although she had some reservations about Mr MA on account of his past behaviour and incidents of domestic violence directed towards the Applicant, she has noticed that he has recently been making a greater effort to stay in touch with the children and be a better father. 

37. Ms W conceded that she would definitely be concerned if Mr MA continued to take drugs and would be fear further incidents of domestic violence. 

38. A DCJ caseworker Ms B has written a letter in support of the Applicant in which she writes that if her visa were to be revoked “it will have a negative impact on her children, as their bond and attachment with their mother will be damaged and their ability to see and spend time with her will be limited”. 

39. Also before the Tribunal are letters written by the Applicant’s children expressing their love and support for her. Offender visitor records show that the Applicant has maintained regular contact with her children and Mr MA whilst in custody. 

40. I accept that the Applicant has a strong and genuine bond with each of her children and that the children rely on the Applicant for emotional support. It is apparent that the current arrangement is working in the interests of the children but I consider that the permanent physical absence of the Applicant would cause distress to all of the children, with the impact on Child E and Child Q particularly detrimental. 

41. I am satisfied that the Applicant would be expected to perform a positive parental role in the future, though this will be dependent almost entirely on her progress in meeting the requirements for regaining custody of her children. 

42. So long as the current arrangement, whereby the children remain in the care of the Applicant’s parents, remains in place I consider it likely that the presence of the Applicant in the lives of her children and the emotional comfort and practical support she might provide to her own parents is an important factor in the wellbeing of the minor children. 

43. That said, I accept that the children are currently well cared for by Ms W and her husband. I also acknowledge there is considerable uncertainty as to whether the Applicant will be able to play an ongoing and positive role in the lives of her children without a period of sustained abstinence from drug use. Furthermore, it is noted that the incident of family violence mentioned above took place in the presence of one of the children.

44. In conclusion, I consider that the best interests of the minor children weigh heavily in favour of revoking the mandatory cancellation decision. 

    PRIMARY CONSIDERATION 4 - EXPECTATIONS OF THE AUSTRLAIAN COMMUNITY

1. Paragraph 8.4 of the Direction requires me to consider the expectations of the Australian community. Subparagraph 8.4(1) relevantly states: 

   The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

2. The Direction proceeds to list specific conduct which the Australian community as a whole expects would raise serious character concerns and an expectation that the person would not hold an Australian visa.  Relevantly, the Applicant has committed a serious crime against a vulnerable person – her then eight year old son - and has been convicted of an act of family violence. The Direction specifies that the nature of these offences is such that the Australian community expects that the person should not continue to hold a visa. 

3. In FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration. That is, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the expectations of the community that decision makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to paragraph 8.4 of the Direction.

4. With reference to FYBR Senior Member Morris in the matter of NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1143 states:

   It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.

   It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. 

5. Observing the norm and the principles outlined in in paragraph 5.2, I am satisfied that the expectations of the Australian community would normally weigh against revoking the visa cancellation on account of her criminal conduct. However, the Applicant arrived in Australia as a child she has lived here from a very young age and for most of her life. Consistent with the principle in subparagraph 5.2(4) I afford this consideration considerably less weight as Australia may afford a higher level of tolerance of criminal conduct by non­citizens who have lived in the Australian community for most of their life, or from a very young age.

   OTHER CONSIDERATIONS

   Extent of Impediments if removed

6. I am required to consider the extent of any impediments that the Applicant may face if removed from Australia to New Zealand in establishing herself and maintaining basic living standards. 

7. The Applicant has lived in Australia for almost her entire life and claims that Australia is the only home she has ever known. She writes that she is scared of being sent to New Zealand where she claims not to know anyone.

8. Whilst acknowledging that the Applicant may face some difficulties re-establishing herself in New Zealand on account of her long-term residence in Australia, the Respondent contends that there are minimal impediments to the Applicant being removed to New Zealand.  It is submitted that there are no substantial language or cultural barriers that the Applicant would need to overcome and at 37 years of age she is young and does not appear to suffer from any physical ailments that would prevent her from working. 

9. The Applicant has provided evidence that she suffers from depression and anxiety and is currently taking medication for her depression and blood pressure. I note also that the Applicant is likely to require intensive support and treatment for her drug addiction, though she would be expected to have access to comparable treatment in New Zealand as she would in Australia.  

10. One of the Applicant’s referees has a New Zealand residential address, which may be indicative of some type of support network in New Zealand.  However, the evidence overall does not support a finding that the Applicant has a ready support network of friends or relatives that she could rely on for support should she need to establish herself in New Zealand. Having lived in Australia most of her life, there is no evidence to suggest that the Applicant has fostered or maintained connections with extended family which may exist in New Zealand. She has not returned to New Zealand since she was 13 years old and it is reasonable to expect she would be reliant on government and charity providers for assistance in New Zealand. 

11. I find that this consideration weighs in favour of revoking the mandatory cancellation decision. 

    Links to the Australian community

12. I am required to consider the Applicant’s strength, nature and duration of ties to Australia. 

13. The Applicant has not worked for 16 years and I am satisfied that no business interests would be impacted by her removal. 

14. The Applicant’s long-term partner Mr MA would be significantly impacted should she be removed. They have been together for 14 years, are currently engaged to be married and have three children together.  In a written submission dated 18 May 2020 Mr MA writes that he is looking forward the Applicant being able to return to their home.  Whilst acknowledging the “horrific car accident” in which their son was seriously injured, the incident where she jumped on the bonnet of his car and suffered head injuries and his subsequent gaol time, he claims that they had periods where they “were a great happy little family”. He also writes that the couple have “seven children between them” and their hope is to be able to bring the children together again in the future. Mr MA intends to seek employment and states that should the Applicant be deported it would be detrimental for him and their children. He writes that the Applicant is very important to their family and it would cause great harm should be deported. I accept Mr MA’s evidence in this regard. 

15. In addition to the minor children who would be impacted by her removal, the Applicant also has an 18 year old son and a step-son for whom her removal would be detrimental. Ms W told the Tribunal that Child A has not coped well with his mother’s imprisonment and detention. He cares for and loves his mother and looks up to her. He misses his mother’s support at his football matches. Even though he has lived with her he has spent a lot of time with his mother whilst growing up and speaks to her every other day. 

16. The Applicant’s parents both reside in Australia and the evidence suggests that they are intimately involved in her life. Should the Applicant be removed it would be expected to have a significant detrimental impact on each parent. 

17. The Applicant has a strong network of friends and ties to the community through her children’s sporting activities which she actively participates in. References before the Tribunal indicate that the Applicant has formed lasting friendships with individuals in the Australian community who would prefer that she continue to live in Australia and would be emotionally impacted should she be removed. 

18. I am satisfied that the Applicant has very significant family and social ties to the Australian community and this consideration weighs heavily in favour of revocation. 

    CONCLUSION

19. Having considered the Applicant’s circumstances as they relate to the considerations outlined in Direction 90, I am now required to weigh up these considerations. 

20. The Applicant’s consistent offending over an extended period of time and limited success to date in managing her drug addiction mean that the protection of the Australian community weighs against revocation. The primary consideration regarding family violence and the expectations of the Australian community also weigh against revocation of the mandatory cancellation decision, but are afforded less weight for the reasons stated above. 

21. The best interests of the minor children weigh heavily in favour of the Applicant. Notwithstanding the children are currently in the care of the Applicant’s mother owing to her offending and drug use, her continued presence is an important factor in the children’s wellbeing and their continued regard for the Applicant is not contested. The extent of the Applicant’s links to the Australian community also weigh in favour of revocation, as do the impediments to removal, though to a lesser extent. 

22. In balancing these considerations I find that the considerations weigh in favour of revoking the mandatory cancellation of the Applicant’s visa. 

    DECISION

23. For the reasons outlined above, the Tribunal decides that the decision under review, being the decision of a delegate of the Respondent dated 5 March 2021 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is set aside. In substitution it is decided that the decision to cancel the visa made on 29 April 2020 be revoked. 

I certify that the preceding 113 (one hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

................................[SGD]........................................

Associate

Dated: 1 June 2021

Date(s) of hearing:	13 and 14 May 2021
Solicitor for the Applicant:	Ms M Mamarot, SouthWest Migration & Legal Services
Solicitor for the Respondent:	Ms P Durham, Sparke Helmore Lawyers