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

[2020] AATA 3012

ZPBM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3012 (19 August 2020)

Division:GENERAL DIVISION

File Number(s):      2020/3383

Re:ZPBM  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:19 August 2020

Place:Sydney

The reviewable decision made on 26 May 2020, being the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the 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 applicant’s Class TY Subclass 444 Special Category (Temporary) visa made on 20 June 2019, is revoked.

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

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

MIGRATION – mandatory visa cancellation – Class TY subclass 444 Special Category (Temporary) visa – failure to pass the character test – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – where offending very serious – where there is risk of reoffending – protection of the Australian community – best interests of minor children in Australia – expectations of the Australian community – strength, nature and duration of ties to Australia – decision set aside and substituted 

LEGISLATION

Migration Act 1958 (Cth) ss 501, 501CA

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

Minister for Immigration and Border Protection v Le [2016] FCAFC 120

SECONDARY MATERIALS

Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

19 August 2020

BACKGROUND

1. The applicant is a 25-year-old New Zealand national. The applicant first arrived in Australia in 1998 at the age of three.

2. The applicant’s Class TY subclass 444 Special Category (Temporary) visa (visa) was cancelled under section 501(3A) of the Migration Act 1958 (Cth) (the Act) on 3 May 2018.

3. The visa cancellation was subsequently revoked, and the applicant was notified of that decision on 14 December 2018. That correspondence also contained a written warning as follows:

   Warning: if you engage in further criminal or other serious conduct, this may again result in your visa being cancelled on character grounds.

4. The applicant continued to offend and was given notice on 20 June 2019 that her visa had been cancelled under section 501(3A) of the Act on the basis of her ‘substantial criminal record’, including a term of imprisonment greater than 12 months and because she was serving a full time custodial sentence: section 501(6)(a) and section 501(7)(c) of the Act.

5. The applicant requested revocation of the cancellation of her visa on 18 July 2019 and provided written submissions and evidence to support that request.

6. On 26 May 2020, a delegate of the Minister decided to not revoke the mandatory cancellation decision under section 501CA(4) of the Act.

7. The applicant sought review of the delegate’s decision in the Administrative Appeals Tribunal (the Tribunal) on 3 June 2020.

8. The applicant started offending from the age of 14 and has a long criminal history, as set out in the applicant’s Nationally Coordinated Police History Check dated 19 September 2019, which I have considered and annexed to this decision as Annexure ‘A’.

9. In summary, over the period of ten years from 2009 to 2019 the applicant was charged for a variety of offences, including unlawful use and operation of motor vehicles, fraud offences, stealing offences, drug offences, breach of probation and bail offences, possession of utensils or pipes, failure to appear in accordance with an undertaking, contravene direction, public nuisance, assault or obstruction of a police officer, assault occasioning actual bodily harm and trespass.

   THE ISSUES

10. As both parties agreed that the applicant does not pass the character test set out in the Act, the sole issue the Tribunal must consider is whether to exercise its discretion under section 501CA(4) of the Act to revoke the mandatory cancellation of the applicant’s visa.

11. Accordingly, the Tribunal must be satisfied in accordance with section 501CA(4)(b)(ii) of the Act that there is another reason why the cancellation decision should be revoked.

    THE LAW

12. The issue before the Tribunal is whether, having regard to Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘Direction 79’), there is any other reason why the mandatory cancellation of the applicant’s visa should be revoked.

13. There are a number of relevant principles contained in paragraph 6.3 of Direction 79 that provide the framework within which the task of exercising the discretion is to be approached:

    (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

    (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.

14. Direction 79 sets out primary and other considerations that must be considered, where relevant, when deciding whether to revoke the mandatory cancellation of a visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. Those primary considerations pursuant to Part C of Direction 79 are as follows:

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

    (b)the best interests of minor children in Australia; and

    (c)expectations of the Australian community.

15. Direction 79 also sets out other considerations that must be taken into account, which include but are not limited to:

    (a)international non-refoulement obligations;

    (b)strength, nature and duration of ties to Australia;

    (c)impact on Australian business interests;

    (d)impact on victims; and

    (e)extent of impediments to the applicant if removed from Australia.

    THE EVIDENCE

    The applicant’s evidence

16. The applicant was self-represented, although she received some assistance from her mother who also gave evidence at the hearing.

17. The applicant initially stated that she had not signed the Department’s document of 14 December 2018, which contained a written warning that further criminal or serious conduct may result in the cancellation of her visa. The respondent’s representative produced this document at the hearing containing a signature purporting to be the applicant’s.

18. The applicant said that she would face grave difficulties if she were returned to New Zealand, as she would have no support either financially or socially and has not lived in the country since she was three years old. She felt that these barriers would make it much more difficult to continue to refrain from drug taking or in addressing her underlying mental health issues.

19. The applicant said she suffered from depression, anxiety and attention deficit hyperactivity disorder (ADHD). She had recently engaged in self-harm in Villawood Immigration Detention Centre (Villawood).

20. The applicant said that her drug addiction started when she was “kicked out” of High School when she was fourteen years old, for an incident for which she said she was unfairly blamed and was consequently unsuccessful in enrolling in another school. As she had nothing to do to occupy her time, she started to drink alcohol and engage in drug use. The applicant started smoking marijuana when she was around 14 years old and then transitioned to methamphetamines. From approximately 2015 she was using methamphetamines whenever she could obtain them.

21. The applicant said that over the past 10 years of offending she had a period of being “clean” from drug use when she was working full-time for a three-year period, and that during this time she did not offend. Under cross-examination, the applicant had said that she had started using drugs again when her relationship with her previous partner broke down.

22. The applicant gave evidence that she had tried to find rehabilitation treatment for her drug addiction, but was initially told she was too young and subsequently was unable to find a place in free rehabilitation centres because of a lack of capacity, long waiting lists and because she did not have the money to pay for private treatment.

23. The applicant also gave evidence that she had cared for her father over a long period of time from when she was around 14 years old. The applicant stated that her father suffered from mental health conditions. The applicant cared for her father even when she was using drugs and said that she had received payments from Centrelink as his full-time carer. In addition to caring for her father, she also played a caring role in relation to her minor siblings growing up.

24. The applicant has seven siblings and five minor nephews and nieces that live in Australia with whom she has a close relationship. They speak approximately once a week.

25. The applicant said that she was a different person when using drugs. She said that she did not want to be around her family whilst she was using and did not want to expose the family to her behaviour whilst under the influence of drugs.

26. She said that her relationship with her wider family had previously deteriorated because of her drug use, but that in recent times her relationships had improved, and her family are very supportive of her. The applicant said that she talked to all her family members regularly and that they were able to call her whenever they wanted.

27. The applicant gave evidence that she had been shocked when she came to grips with her possible deportation from Australia. She said she had thought very carefully about her life and really wanted to change her behaviour. She had been seeking information about educational courses and had enrolled in a course related to the construction industry, as she felt that post COVID-19 this would be a booming industry.

28. The applicant said she would look for further assistance in dealing with her mental health if she were released and acknowledged that this was an important part of her recovery.

29. The applicant said that she had not attended all the mental health appointments made for her whilst she was incarcerated. She said the counsellors in detention constantly changed and she had to continually tell her story over and over again. The applicant found this process to be very difficult emotionally.

30. When questioned about various incidents in detention where she had been involved in altercations with other inmates, the applicant acknowledged that she had engaged in various behavioural incidents when she first arrived in Villawood. The applicant gave evidence that she had received some benefit from counselling and a behaviour management plan whilst in immigration detention at Villawood. This had helped her to realise that she could not continue the same behaviours as she had previously if she wanted to remain in Australia with her family. She said she realised the importance and power she had in changing her behaviours.

31. The applicant said that she had been free of drug use for the past six months and had realised both the damage it had caused in her life and the harm to other individuals and the community more generally.

32. When questioned about her criminal history, the applicant accepted that she had been involved in violence, including violence against the police, but said this occurred when she was a minor and that she had not engaged in any violence for many years. She said that most of her offences involved stealing in order to pay for her drug dependency and driving offences, including driving under the influence of methamphetamines. When questioned further about her driving offences, the applicant said that she now accepted that these were serious offences but said that at the time she just wanted a car, so she took it without thinking about the consequences, particularly the consequences to the victims who owned the car. The applicant said that she now had a much better understanding of the impact on the victims and felt remorseful for her actions.

33. When the applicant was questioned about the sentencing remarks of the Sentencing Magistrate concerning her 2018 offences, notably that she has “demonstrated repeatedly what a tremendous risk” she is to the community, the applicant said that she regarded those remarks as being accurate at that time. She said that she has since realised the impact of her drug use and the consequences of her criminal behaviour, particularly the effect on victims of crime and her relationships with her family.

34. I found the applicant to be a very honest and credible witness. Her evidence was frank, and she gave clear and credible answers even when those answers may not have assisted her case.

    The applicant’s mother

35. At the hearing, the applicant’s mother gave evidence about her family and the applicant’s upbringing. She said that she had eight children, including one she adopted, and 10 grandchildren. They all live in Australia. The applicant’s sister had lived in New Zealand with a partner and her partner’s family for a period, but she now lives in Australia.

36. The applicant’s mother said she had a sister, three nieces, an aunt and three uncles in New Zealand. Neither the applicant nor her mother was close to the family in New Zealand. The applicant’s mother said that this was partly because of the abuse that the children suffered in their family growing up. She said that these family members would not be able to offer any assistance if the applicant was returned to New Zealand.

37. The applicant’s mother drew attention to the fact that her daughter had omitted to give evidence to the Tribunal at the hearing about the violent and frightening family circumstances in which she grew up. The applicant’s mother gave evidence that the applicant’s father had an unusual mental health condition, which lead him to become extremely aggressive and violent when he was stressed. The father needed help with day-to-day tasks and dealing with him was both stressful and possibly dangerous. The applicant’s mother said that she did not live with the applicant’s father, but that she cares for him currently to keep her children away.

38. The applicant’s mother said that the applicant used to clean her father’s house, cook and do all his errands for him.

39. The applicant’s mother gave evidence of her own previous drug use and addiction, including evidence that she had engaged in the use of illicit drugs with the applicant whilst the applicant was still a minor.

40. The applicant’s mother said that her family changed overnight from an intact family unit to a “violent and frightening place” when the applicant’s father’s condition meant he became aggressive and violent. The applicant’s mother left the family home at about this time, leaving the children with their father. The applicant was therefore left to try to care for her younger siblings and protect them in a very difficult and stressful environment at a formative period of her life. The applicant’s mother said she felt an immense sense of guilt for not helping the applicant when she was young.

41. The applicant’s mother said that she was aware of the applicant’s criminal and drug history. She said that she had a very strained relationship with her daughter in 2016 but has a very close relationship with her now and they usually speak daily. She said that she had had to rebuild a relationship of trust with her daughter.

42. The applicant’s mother said that although the family was very dysfunctional, they supported each other and would support the applicant. The applicant’s mother stressed, however, that if the applicant were to be released from Villawood it would be very important for her to live independently from her family for stability and that she would provide the applicant with assistance in ensuring this. She also said that the applicant needed psychological treatment for her anxiety, depression and the trauma she suffered whilst looking after her father.

43. The applicant’s mother felt that there would be very adverse consequences for the applicant and the applicant’s family unit if the applicant were returned to New Zealand.

44. I found the applicant’s mother to be an honest and credible witness, who gave evidence as to circumstances which were clearly very painful for her to try and explain the applicant’s history, particularly circumstances which she said her daughter would not talk about because she did not want to embarrass her family.

    Other evidence

45. Statements were also received from the applicant’s father and her two sisters. The respondent’s representative indicated that he did not wish to cross-examine these witnesses.

46. The applicant’s father made a statutory declaration dated 24 July 2020 in which he outlined his mental health problems, the applicant’s care for him and the trauma suffered by the applicant and the family. He said that he will support the applicant if she is released, including assistance with finding accommodation, counselling, rehabilitation and employment. He highlighted the applicant’s role in protecting and taking care of her siblings.

47. The applicant’s two sisters also wrote letters in support of the applicant.

48. The applicant’s younger sister said that whilst she was growing up the applicant had protected the siblings when their father and mother’s relationship became “violent” and “frightening”. She said that she has continued to receive support from the applicant even whilst she has been incarcerated in Villawood, and because of this emotional support she believed “[the applicant] helped save her life” and was there for her when no one else was.

1. The applicant’s older sister stated that her and her partner are willing to support the applicant in obtaining accommodation and her partner is willing to help her seek employment with his current employer. She also noted the bond that the applicant had formed with their children and the “huge emotional toil for [her] children to have to bear” if the decision were made to affirm the delegate’s decision.

2. These statements were supported very strongly by the oral evidence given by the applicant’s mother at the hearing.

   DISCRETION

3. In determining whether to exercise the Tribunal’s discretion to revoke the delegate’s decision, I am required to have regard to the considerations set out in Direction 79. I turn first to the primary considerations.

   Protection of the Australian community

4. Turning to the first of the primary considerations, namely the protection of the Australian community from criminal and other serious conduct, this consideration requires the Tribunal to look at the nature and seriousness of the applicant’s conduct to date, as well as the risk to the Australian community if she were to commit further offences or engage in other serious conduct.

   Nature and seriousness of conduct

5. The applicant has a long history of drug-related offending in Australia over a period of 10 years. She has had convictions for violent offending when she was a minor, including against a police officer. I note that offences committed against government officials in the performance of their duties is specifically identified in Direction 79 as serious: paragraph 13.1.1(1)(c) of Direction 79.

6. The applicant’s offences include two convictions for unlawful use of motor vehicles, aircraft or vessels, on 23 Mach 2018 and 30 May 2019. On 23 Mach 2018, the applicant was involved in a head on collision with another vehicle when under the influence of drugs and whilst using a false license in a stolen vehicle. This offence was committed whilst the applicant was on probation.

7. The remarks of the Sentencing Magistrate for the applicant’s 2018 conviction note the seriousness and cumulative effect of the applicant’s repeat offending. She stated as follows:

   The offending in this case is extremely serious... the fact that this offending now has been so concentrated and so – and increasing in seriousness since 2016, particularly, as your criminal history shows, is of particular concern as it indicates or emphasises what I’ve already just said, that is, what a danger to the community you are.

8. On 31 January 2019, the applicant then reoffended in a similar manner. On this occasion, the police located the applicant inside a vehicle that was reported as stolen and within the vehicle also located clean packaged syringes and multiple clip seal bags containing a crystal substance.

9. The applicant’s criminal behaviour increased in seriousness over time as reflected in the higher penalties imposed. This no doubt reflects and is relative to the applicant’s age and the cumulative effect of her offending. Sentences of imprisonment are used as a last resort by the criminal justice system and reflect the objective seriousness of the applicant’s offences.

10. The applicant’s offending also occurred after she had received a formal warning from the Department, although I note that the applicant disputes that she received the warning and claimed that she had had refused to sign the document. Regardless of the issue of whether or not the applicant signed the document, her evidence (which was consistent with that of her mother) indicates that she was well aware of the effect of her offending on her visa status but continued to reoffend. The applicant continued to offend up until she was incarcerated in 2019.

11. When questioned by the Tribunal, the applicant said she was not an angry person and her mother’s evidence was also that the applicant was not angry or violent, but rather her offending was related to her drug dependency. The applicant’s offending should properly be considered in light of the trauma and abuse she suffered in formative periods of her life, particularly the fact that her mother enabled her drug use from an early age and also effectively abandoned the family to what she herself described as a “violent and frightening place”, although I note that this does not minimise the nature and seriousness of the applicant’s criminal offending and the impact it had on the victims.

12. I note in this regard, however, that the applicant has never committed a violent crime against women and children or a sexual crime, and in her evidence she said that she stayed away from her younger siblings whilst using drugs as she understood the effect this could have on them growing up. I also note that it is relevant that the applicant arrived in Australia at the age of three. Accordingly, principle 6.3 paragraph 5 of Direction 79, which states that “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”, is relevant. I have taken this into account, and it is a mitigating factor.

13. In considering the evidence, I am of the opinion that the applicant’s offending is serious cumulatively and her sentences increased in severity over time and as she became older. This consideration weighs heavily in favour of non-revocation of the delegate’s decision.

    Risk to the Australian community

14. The most recent independent evidence as to the risk that the applicant poses to the community is to be found in the remarks of the Sentencing Magistrate in 2018 when the applicant was convicted for unlawful use of motor vehicles, aircraft or vessels. In these remarks, the Sentencing Magistrate stated that the applicant has “demonstrated repeatedly what a tremendous risk” she is to the community. It is not clear whether the Sentencing Magistrate at the time of these remarks was aware of the applicant’s circumstances as outlined by her mother at the hearing before the Tribunal, which provide some explanation as to the applicant’s offending conduct.

15. I note that there is no other independent evidence as to the applicant’s drug dependency or mental health, nor how these issues are currently being addressed. The evidence given to the Tribunal would indicate the applicant has not recently pursued mental health options available to her.

16. It is also relevant that the applicant made similar statements to the Minister’s department in relation to the previous cancellation of her visa on 3 May 2018 to those made before the Tribunal. Those statements were clearly considered by the Department and were part of the reason why the cancellation of her visa was previously revoked. Despite this, however, and despite the warning from the Department, the applicant continued to reoffend. It is therefore fair to say that she did not comply with her previous undertakings and representations to the Department.

17. Whilst there was no objective evidence presented at the hearing which would support the contention that the applicant is unlikely to reoffend, I accept the applicant’s evidence that she is determined to turn her life around and has support systems in place to help her obtain employment, accommodation and mental health treatment. I also accept her evidence that her criminal behaviour is related to drug use and that when she was free of drugs she did not engage in offending behaviour. At the hearing, the applicant demonstrated insight into her offending and the consequences of her behaviour on victims of crime and her life more generally, together with a determination to take a different path.

18. Given the applicant’s criminal history, her mental health problems and drug issues, I find that the applicant is still at a risk of reoffending. However, I also take into account the evidence of the applicant and her mother which goes to explaining at least in part why the applicant first offended and continued to offend and the applicant’s insight into and motivation to change this behaviour. I therefore give medium weight to this consideration, which weighs in favour of not revoking the cancellation of the applicant’s visa.

    Best interest of minor children

19. I accept the evidence that the applicant has close ties with her family members in Australia, including six minor children who would be adversely affected by a decision not to revoke the cancellation of the applicant’s visa. All the evidence before the Tribunal indicated that the applicant had a caring and loving attitude toward her family and has been a positive influence in their life, despite her past offending behaviour. I note that the applicant does not have any biological children.

20. The applicant is in regular conversation with her biological sister who is 14 years old. In her submissions to the Tribunal supported by her mother’s evidence, the applicant said that she became the carer for her younger siblings, including this minor sister, when the family situation became volatile.

21. From the evidence of the applicant’s mother, which I accept, it is clear that the applicant played a very important role in the care and protection of her biological siblings, despite the period of absence since she has been incarcerated. From the evidence presented to the Tribunal, the applicant’s minor sister would not have the means to physically visit the applicant if she were returned to New Zealand, and her only form of contact with the applicant would be constricted to communication through the use of technology. It is clear from the evidence before the Tribunal that it is not in the best interests of the applicant’s sister for the applicant to be returned to New Zealand.

22. In relation to her five minor nieces and nephews, the applicant gave evidence that they had a loving but previously distant relationship, but that they can speak to her at any time. The applicant said it is difficult to have long conversations whilst she is in detention because there is very little to tell the children about in her life, but she is always there for them if they want to talk to her about any issues.  

23. I note that the applicant’s relationship with her nieces and nephews is non-parental in nature and less weight should be given to this consideration, particularly due to the recent period of separation during the applicant’s incarceration. However, it is clear from the applicant’s older sister’s statement that there would be a “huge emotional toil for [her] children to have to bear” if the applicant were sent back to New Zealand, and that it would not be in the best interests of her nieces and nephews if the decision were made to affirm the delegate’s decision.

24. During the hearing, the applicant gave evidence that whilst using drugs she kept away from family members to avoid exposing them to any negative behaviour. This is supported by the statements of the applicant’s sisters and the oral evidence of her mother. There is no evidence before the Tribunal that any child has suffered physical or emotional trauma arising from the applicant’s conduct. Rather, it is clear from the evidence before the Tribunal that the applicant has played a very positive role in her younger sister and nieces and nephews’ lives, and actively encourages them to never engage in illicit substance use.

25. I give substantial weight to this consideration which weighs in favour of revoking the cancellation of the applicant’s visa.

    Expectations of the Australian community

26. In FYBR v Minister for Home Affairs [2019] FCAFC 185 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. Rather, the expectations of the community that decision-makers are required to consider are those set out in the Direction at paragraph 11.3 of Direction 65, which is analogous to paragraph 13.3(1) of Direction 79.

27. Having regard to the provisions of paragraph 13.3 of Direction 79 and the applicant’s continued history of offending, the Australian community would expect that the applicant is not given the privilege of holding an Australian visa. Direction 79 states that the Australian community expects non-citizens to obey Australian laws.

28. Given the seriousness and cumulative nature of the applicant’s offences, I give substantial weight to this consideration against revocation of the delegate’s decision.

    Strength, nature and duration of ties

29. The applicant has demonstrated very strong ties to Australia. The applicant has resided in Australia permanently since she was three years old and has close ties to her immediate and extended family living in Australia.

30. The applicant’s mother in her evidence demonstrated that she was clearly committed to assisting the applicant “one hundred percent” if she were released into the Australian community. This support was also evidenced by her sister’s statements that they intend to assist the applicant if she is released and would be adversely affected if the applicant were returned to New Zealand. All the evidence provided by the applicant’s witnesses was that they would not have the financial means to visit the applicant if she was sent to New Zealand. I am satisfied that non-revocation of the cancellation of the applicant’s visa would have a lasting and negative effect on the applicant’s close ties to her mother and siblings in Australia. 

31. The applicant also has a significant connection with her father in Australia for whom she has been the primary carer for a long period of time, even though the applicant’s mother gave evidence that she currently cares for the applicant’s father and did so whilst the applicant was in detention. Effectively, the applicant cared for her father from the age of 14 until she was 21. It is clear that the applicant has a strong connection with her father and that he would be adversely affected if the applicant were not able to remain in Australia. Any adverse effect would be exacerbated by his mental health condition.

32. There was evidence that the applicant had worked full-time in the Australian community, at least during the three-year period that she was free of drug use. There was no evidence of community ties such as volunteer groups or Church. However, this can be readily explained by the applicant’s years of drug addiction.

33. I give substantial weight to this consideration which weighs in favour of revoking the cancellation of the applicant’s visa.

    Impediments to removal

34. There are no language or cultural barriers to the applicant returning to New Zealand, despite the applicant residing in Australia since she was three years old.

35. Furthermore, the applicant would receive the same access to the health system, social services and mental health counselling in New Zealand as would any other citizen. It is likely, however, that the applicant’s mental health would deteriorate if she were removed to New Zealand and that there may be delay in her accessing appropriate treatment in an unfamiliar system.

36. The applicant does have family in New Zealand, but I accept the evidence of both the applicant and her mother that she has had very little contact with them and that they would not be able to offer any significant support to her.

37. Short-term the applicant is more likely to find work in Australia than New Zealand.

38. Given that the applicant was only three when she came to Australia and is clearly going to need emotional and physical support if she returns to the community, support which appears to be only available to her in Australia, I find that there are impediments to her removal to New Zealand and I give substantial weight to this consideration in favour of revoking the cancellation of the applicant’s visa.

    Non-refoulement obligations

39. The Tribunal must consider whether Australia owes international non-refoulement obligations or the applicant faces fear of harm if she were returned to New Zealand: paragraph 14.1 of Direction 79.

40. There was a vague and unsubstantiated claim that the applicant might fear harm from criminal groups if she were returned to New Zealand. However, the claim was subsequently withdrawn at the hearing.

41. In Minister for Immigration and Border Protection v Le [2016] FCAFC 120 (Le), the Full Federal Court set out a non-exhaustive summary of principles relating to whether Australia’s non-refoulement obligations are a mandatory consideration when exercising the discretionary powers conferred by subsections 501(1) or (2). Their Honours relevantly state at [61]:

    ........

    (e) in determining whether or not to exercise the powers in s 501(1) or (2) of the Migration Act, Australia’s non-refoulement obligations and the prospect of indefinite detention are not mandatory considerations in circumstances where it is open to the person whose visa has been refused or cancelled on character grounds to apply in Australia for a protection visa or some other visa (which visa application the decision-maker is legally bound to consider and determine) and the consideration of the visa application must involve regard being paid to the prospect of indefinite detention if the visa is refused…

42. In light of the decision of Le, it is not necessary for me to determine whether non-refoulement obligations are owed for the purpose of determining whether the visa should be refused as it is open to the applicant to make an application for a protection visa.

43. In any event, however, the claim was withdrawn at the hearing and accordingly this consideration does not weigh in favour or against the revocation of the delegate’s decision.

    DECISION

44. The applicant arrived in Australia at the age of three and is essentially only familiar with Australia. Her long criminal history cannot be downplayed, but it is in part relevant that most of it relates to drug-dependency and behaviours related to funding and sustaining her drug-addiction.

45. The applicant suffered serious trauma as a result of her family situation, which no doubt contributed to her feelings of alienation from the community. I accept the applicant’s evidence that she has received a real shock and is determined to change her life. In doing so, she would have the support of her family.

46. Having weighed all of the above considerations, I find that the correct and preferable decision is to set aside the reviewable decision made by a delegate on 26 May 2020 to not revoke the cancellation of the applicant’s Class TY subclass 444 Special Category (Temporary) visa. In substitution, the decision to cancel the applicant’s Class TY Subclass 444 Special Category (Temporary) visa made on 20 June 2019, is revoked.

I certify that the preceding 94 (ninety-four) paragraphs are a true copy of the reasons for the decision herein of the Hon. John Pascoe AC CVO, Deputy President.

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

Associate

Dated: 19 August 2020

Date(s) of hearing:	6 August 2020
Applicant:	In person (by video conference)
Solicitors for the Respondent:	Mr A Cunynghame, Sparke Helmore Lawyers

ANNEXURE ‘A’

COURT DATE	OFFENCE	PENALTY/SENTENCE
2009 (Beenleigh Children’s Court)	Trespass – entering or remaining in dwelling or yard Assault or obstruct police officer	One penalty imposed: no conviction recorded reprimanded
2011 (Ipswich Children’s Court)	Unauthorised dealings with shop goods	No conviction recorded, good behaviour bond, Period: 4 months
2012 (Brisbane Children’s court)	Assault occasioning bodily harm Serious assault - assault/resist/obstruct police officer/person acting in aid of police officer	On all charges no conviction recorded probation period: 12 months
1 March 2013 (Brisbane Magistrates Court)	Commit public nuisance Serious assault police biting/spitting/applied bodily fluid/faeces	Wilful damage of police property On all charges no conviction recorded probation period: 2 years
28 June 2016 (Brisbane Magistrates Court)	Contravene direction or requirement	Conviction recorded, Fined: $100
23 August 2016 (Ipswich Magistrates Court)	Failure to appear in accordance with undertaking	Conviction recorded, Fined: $350
18 October 2016 (Ipswich Magistrates Court)	Failure to appear in accordance with undertaking	Conviction recorded, Fined: $350.00
14 November 2016 (Richlands Magistrates Court)	Failure to appear in accordance with undertaking	Conviction recorded, sentenced imprisonment: 1 month to be suspended for 12 months (concurrent)
8 December 2016 (Brisbane Magistrates Court)	Breach of order imposed Breach of bail condition	Suspended sentence extended, Period: 1 month Conviction recorded, Fined: $150
10 January 2017 (Richlands Magistrates Court)	Breach of bail  conditions (two counts)	On all charges no conviction recorded, Fined: $750. In default imprisonment: 15 days
16 January 2017 (Richlands Magistrates Court)	Possess utensils or pipes etc that had been used (four counts) Possess property suspected of having been used in connection with the commission of a drug offence (two counts) Authority required to possess explosives Possessing/acquiring restricted items Contravene direction or requirement Supplying dangerous drugs Possessing dangerous drugs (two counts) Offence in relation to unauthorised and prohibited explosives	On all charges conviction recorded, sentenced imprisonment: 1 month to be suspended for 12 months (concurrent)
15 March 2017 (Richlands Magistrates Court)	Failure to appear in accordance with undertaking Conviction recorded, sentenced imprisonment: 2 months (cumulative)	Breach of order imposed on 16/01/2017 Suspended sentence fully invoked (cumulative)
12 April 2017 (Richlands Magistrates Court)	Breach of bail condition (between 18/12/2016 and 17/12/2016) Possess utensils or pipes etc that had been used (two counts) Breach of bail condition (between 11/12/2016 and 17/12/2016)	Unlawful possession of restricted drugs Possess property suspected of having been used in connection with the commission of a drug offence On all charges conviction recorded probation period: 12 months
	Contravene direction or requirement	Conviction recorded not further punished
31 July 2017 (Richlands Magistrates Court)	Possess by night instrument of house breaking	Conviction recorded, Fined: $700
	Possession of a knife in a public place or school	Conviction recorded, Fined: $400
22 March 2018 (Richlands Magistrates Court)	Stealing (five counts) Receiving tainted property (two counts)	On all charges conviction recorded sentenced imprisonment: 6 months (concurrent)
	Unlawful use of motor vehicles aircraft or vessels – (four counts) Dangerous operation of vehicle (on 08/01/20180	On all charges conviction recorded sentenced imprisonment: 9 months (concurrent) Sentenced imprisonment: 2 years (concurrent)
	Possess property suspected of having been used in connection with the commission of a drug offence Fail to take reasonable care and precautions in respect of syringe or needle	On all charges conviction recorded not further punished
9 August 2018 (Ipswich Magistrates Court)	Breach probation order (breach of bail condition x2, possess utensils or pipes etc that had been used x2, unlawful possession of restricted drugs, possess property suspected of having been   acquired for the purpose of committing a drug offence)	Orders revoked resentenced for original offences on all charges conviction recorded not further punished
23 October 2018 (Beenleigh Magistrates Court)	Unlawful use of motor vehicles aircraft or vessels – use (on a date unknown between 11/01/2018 and 16/01/2018)	Conviction record not further punished
30 May 2019 (Beenleigh Magistrates Court)	Stealing Possessing dangerous drugs	On all charges convicted recorded, sentenced imprisonment: 6 months (concurrent)
	Fraud – dishonest application of property of another	Conviction recorded, sentenced imprisonment: 9 months (concurrent)
	Fraud  – dishonestly make off without paying (two counts) Stealing (eight counts)	Conviction recorded, sentenced imprisonment: 3 months (concurrent) Restitution
	Unlawful use of motor vehicles aircraft or vessels – use (between 20/01/2019 and 31/01/2019)	Conviction recorded, sentenced imprisonment: 18 months (concurrent)