Hood and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1123 (4 May 2020)

13 June 2019.[8] 4. On 20 September 2019, the Department sent the Applicant a further letter inviting her to comment on further information received, namely her National Criminal History Certificate released 12 August 2019.[9] In particular, the Applicant was invited to comment on the further charges for which she was convicted on 17 September 2019. 5. The Applicant acknowledged receipt of the further letter in a series of emails dated

24 September 2019[10] and provided responsive material to the Department.[11] 6. On 5 February 2020, the Delegate cancelled the Applicant's visa under

s 501(2) of the Migration Act.[12] The Department notified the Applicant of the decision by hand on 10 February 2020 at the Magistrates Court of Western Australia in Perth.[13]

The Applicant signed an acknowledgement of receipt of the notice of visa cancellation and accompanying documents on that date. 7. The basis for the cancellation of the Applicant's visa was that the Delegate was not satisfied that the Applicant passed the character test by virtue of s 501(6)(a) of the Migration Act, as defined in s 501(7) of the Migration Act. This was because the Applicant had been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more (s 501(7)(d) of the Migration Act) and hence, has a substantial criminal record. 8. The Delegate decided to exercise their discretion to cancel the Applicant's visa giving weight to the: * primary considerations of 1) the protection of the Australian community, taking into account the nature and seriousness of the Applicant's conduct and the risk to the Australian community, 2) the best interests of minor children and

3. expectations of the Australian community and;
   • other considerations (as the Delegate saw relevant) of i) strength, nature and duration of ties and ii) extent of impediments if removed.

9. On 15 February 2020, the Applicant sought review of the Delegate's decision dated

1. The issues for determination by this Tribunal are:
   • whether the Applicant passes the character test as defined by s 501(6) of the Migration Act; and
   • if the Applicant does not pass the character test, whether the Tribunal, standing in the shoes of the Delegate, should exercise discretion to cancel the Applicant's visa having regard to the primary and other considerations in (Direction No. 79).[15]

1. At the hearings, the Applicant made submissions, gave evidence and was cross-examined. The Applicant also called the following witnesses to give evidence in support of her application:
   • Ms Michelle Filgate, the Applicant's father's partner;[16]
   • Mr Rhys Vanmaris, the Applicant's partner;[17]
   • Ms Ruth Fawcett, the mother of a friend of the Applicant;[18] and
   • Ms Kristy Treen, the Applicant's previous employer.[19]
2. These witnesses gave evidence via telephone. Several unsuccessful attempts were made to contact a further witness, Ms Tiarah Taylor-Cooper (the Applicant's friend),

by telephone during the hearing. Ms Taylor-Cooper was unable to be contacted.

The Respondent did not raise any objection to Ms Taylor-Cooper's statement[20] being admitted into evidence and did not seek to challenge the character reference provided in the statement. The Tribunal accepted the statement on that basis. 3. The Tribunal notes additional witness statements provided in support of the Applicant's application, by witnesses who did not give evidence during the hearings: * Mr Mark Hood, the Applicant's father;[21] * Mr Nathan Caine Howarth, the Applicant's ex-partner;[22] * Ms Sandy Yelland, the Applicant's friend;[23] * Mr Dean Farrant, the Applicant's friend;[24] and * Ms Jade Williams, the Applicant's friend.[25] 4. The Tribunal admitted the following documents into evidence: * Applicant's Statement of Facts, Issues and Contentions dated 30 March 2020 (A1); * Applicant's bundle of documents provided on 18 February 2020 (A2); * Statement of Ms Ruth Fawcett dated 11 February 2020 (A3); * Statement of Mr Mark Hood dated 18 February 2020 (A4); * Statement of Ms Michelle Filgate dated 18 February 2020 (A5); * Statement of Mr Nathan Caine Howarth (undated) (A6); * Applicant's certificates of completion issued by alison.com,[26] for: * (i) Mental Health Studies - Understanding Behaviour, Burnout and Depression - Revised, awarded 29 February 2020; and * (ii) Psychology - Biology and Behaviour - Revised 2018,

• Report by Ms Kerry Dalwood, Psychologist, dated 9 December 2019 (A8);
• Respondent's Statement of Facts, Issues and Contentions dated 18 March 2020 (R1);
• G documents (G1 to G27) (167 pages) submitted to the Tribunal by the Respondent on 3 March 2020 (R2);
• Supplementary relevant documents (SG1 to SG2) (462 pages) submitted to the Tribunal by the Respondent on 31 March 2020 (R3);
• Extract from the eCourts Portal of Western Australia regarding the Applicant's extant criminal charges, as at 3 April 2020 (R4); and
• Extract from APCCA[27] Newsletter 44th edition April 2018, pages 4 and 5 entitled 'Offender Risk and Needs Assessment Tools' contributed by Corrective Services WA (R5).

1. Sections 501(1) and (2) of the Migration Act provide:

(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note: Character test is defined by subsection (6).

(2) The Minister may cancel a visa that has been granted to a person if:

(a) the Minister reasonably suspects that the person does not pass the character test; and

(b) the person does not satisfy the Minister that the person passes the character test.

1. Section 501(6) of the Migration Act provides that:
   • (6) For the purposes of this section, a person does not pass the character test if:
     • (a) the person has a substantial criminal record (as defined by

(c) having regard to either or both of the following:

• (i) the person's past and present criminal conduct;
• (ii) the person's past and present general conduct;

(d) in the event the person were allowed to enter or remain in Australia, there is a risk that the person would:

• (i) engage in criminal conduct in Australia;....

1. A 'substantial criminal record' is defined by s 501(7)[28] of the Migration Act as follows:
   • (7) For the purposes of the character test, a person has a substantial criminal record if:
     • (a) the person has been sentenced to death; or
     • (b) the person has been sentenced to imprisonment for life; or
     • (c) the person has been sentenced to a term of imprisonment of 12 months or more; or
     • (d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;...

1. Section 29(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) provides that an application must be made 'in writing'.
2. Section 500(1)(b) of the Migration Act provides that an application may be made to the Tribunal for review of a decision of a delegate of the Minister under s 501 to cancel a visa.
3. Section 500(6B) of the Migration Act provides that if a decision under s 501 of the Migration Act relates to a person in the migration zone, an application to the Tribunal for review of a decision must be lodged with the Tribunal within nine days after the day on which the person was notified of the decision in accordance with s 501G(1).
4. Section 501G(1) of the Migration Act provides that if a decision is made under s 501(2) to cancel a visa that has been granted to a person, the Minister must give the person written notice that:

...

(c) sets out the decision; and

(d) specifies the provision under which the decision was made and sets out the effect of that provision; and

(e) sets out the reasons (other than non-disclosable information) for the decision; and

(f) if the decision was made by a delegate of the Minister under subsection 501(1) or (2), or section 501CA and the person has a right to have the decision reviewed by the Administrative Appeals Tribunal:

(i) states that the decision can be reviewed by the Tribunal; and

(ii) states the time in which the application for review may be made; and

(iii) states who can apply to have the decision reviewed; and

(iv) states where the application for review can be made; and

(v) in a case where the decision relates to a person in the migration zone-sets out the effect of subsections 500(6A) to (6L) (inclusive); and

(vi) sets out such additional information (if any) as is prescribed.

1. Section 501G(2) of the Migration Act provides that the notice referred to in section 501G(1) of the Migration Act must be accompanied by two copies of every document, or part of a document, that:

...

(d) is in the delegate's possession or under the delegate's control; and

(e) was relevant to the making of the decision; and

(f) does not contain non-disclosable information.

1. Section 501G(3) of the Migration Act provides that a notice given under s 501G(1) must be given in the prescribed manner. The giving of documents relating to cancellation decisions is governed by reg 2.55 of the Migration Regulations 1994 (Cth)

(the Regulations). 2. Pursuant to reg 2.55(3)(a) of the Regulations, the Minister can give a document by handing it to the person personally. 3. Pursuant to reg 2.55(5) of the Regulations, '[i]f the Minister gives a document by handing it to the person, the person is taken to have received the document when it is handed to the person'.

1. Section 500(6H) of the Migration Act provides that:

(a) an application is made to the Tribunal for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and

(b) the decision relates to a person in the migration zone;

the Tribunal must not have regard to any information presented orally in support of the person's case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.

(Emphasis added.)

1. Section 500(6J) of the Migration Act provides that:

(a) an application is made to the Tribunal for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and

(b) the decision relates to a person in the migration zone;

the Tribunal must not have regard to any document submitted in support of the person's case unless a copy of the document was given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review. However, this does not apply to documents given to the person or Tribunal under subsection 501G(2) or subsection (6F) of this section.

(Emphasis added.)

1. The two-day rule was considered by the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318; (2001) 111 FCR 378, 389-390. The Full Court explained:

The scheme for dealing with applications for review under s 500 of the Migration Act has at its heart subss (6H) and (6J). These subsections impose serious restrictions on an applicant for review. The Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant's case unless the Minister has had two business days' notice of the information or the document before the hearing. The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s 500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put. If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the second reading speech in relation to the bill by which the provisions were introduced. That bill became the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth). The expressed intention of the bill was to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by application of the character test. Crucial to the scheme is the 84 day time limit for the whole process, laid down in subs (6L).

(Original emphasis.)

1. In applying the two-day rule, the Tribunal must be mindful not to fall into jurisdictional error by failing to consider a primary consideration. The two-day rule does not prevent the matter from being adjourned to ensure that the Tribunal's 'review is conducted thoroughly and fairly'.[29] The High Court has strongly indicated that adjourning a hearing provides an opportunity for the requirements of the two-day rule to be complied with.[30] Further, information which is elicited under cross-examination which may support an applicant's case is not excluded.[31] Submissions in reply to issues raised by the Respondent are also not excluded.[32] The Full Court of the Federal Court in Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123; (2014) 225 FCR 482, 502 [96] (Jagroop) stated:

We conclude that the words "in support of the person's case" in each of subss (6H) and (6J) are words of qualification. They indicate that the prohibition relates only to information and documents presented as part of an applicant's case-in-chief to support his or her own case, and not to information or documents which an applicant may wish to present in answer to the case presented by the Minister and which, at the least, the applicant could not reasonably have anticipated.

(Emphasis added.)

1. The High Court in Uelese v Minister for Immigration and Border Protection

(2015) 256 CLR 203, 218 (Uelese) rejected the suggestion that the final part of the observation by the Full Court in Jagroop should be read as a qualification excluding information that could reasonably have been anticipated to be supportive of the applicant's case two days prior to the commencement of the hearing. The High Court noted the Federal Court's comments in this regard were 'tentative observations' and not a qualification.[33] In Uelese the High Court observed:[34]

Section 500(6H) should not be construed to restrict the flexibility of the Tribunal to ensure procedural fairness to the parties to a review beyond what is required by its terms. Specific powers under the AAT Act that would be restricted in their operation on the Tribunal's understanding of s 500(6H) include: s 39(1), which obliges the Tribunal to "ensure that every party to a proceeding ... is given a reasonable opportunity to present his or her case"; s 33(1)(c), which allows the Tribunal to "inform itself on any matter in such manner as it thinks appropriate"; and s 33(2A)(a), which allows the Tribunal to "require any person who is a party to the proceeding to provide further information in relation to the proceeding".

1. Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:

(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a) the performance of those functions; or

(b) the exercise of those powers.

1. Further, s 499(2A) of the Migration Act states that '[a] person or body must comply with a direction under subsection (1)'.
2. On 20 December 2018, the Minister for Immigration, Citizenship and Multicultural Affairs made a direction under s 499 of the Migration Act, being Direction No. 79.
3. Paragraph 6.1 of Direction No. 79 sets out the Objectives of the Migration Act, with paras 6.1(2) and (4) of Direction No. 79 being relevant to the Reviewable Decision which is currently before the Tribunal:

(2) Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.

(4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

1. Paragraph 6.2 of Direction No. 79 provides general guidance as follows:

(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen's visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.

(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

1. Paragraph 6.3 of Direction No. 79 sets out principles which must be taken into account by persons making decisions under ss 501 and 501CA of the Migration Act, including the Tribunal:

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

(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.

1. Paragraph 7(1)(a) of Direction No. 79 outlines how a decision-maker is to exercise discretion:

(1) Informed by the principles in paragraph 6.3 above, a decision-maker:

1. must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa;...

1. Informed by the principles set out in para 6.3 of Direction No. 79, the decision-maker

(in this case the Tribunal) must take into account the primary considerations in Part A of Direction No. 79, with regard to the specific circumstances of the case, in deciding whether to cancel a person's visa under s 501(2) of the Migration Act.[35] Specifically, para 9(1) in Part A of Direction No. 79 provides:

(1) In deciding whether to cancel a non-citizen's visa, the following are primary considerations:

1. Protection of the Australian community from criminal or other serious conduct;
2. The best interests of minor children in Australia;

1. Paragraph 10 in Part A of Direction No. 79 lists other considerations as follows:

(1) In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

1. International non-refoulement obligations;
2. Strength, nature and duration of ties;

1. Impact on victims;
2. Extent of impediments if removed.

1. Further guidance as to how a decision-maker is to apply the considerations in Direction

No. 79 can be found in para 8 of Direction No. 79 which provides:

(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

(4) Primary considerations should generally be given greater weight than the other considerations.

(5) One or more primary considerations may outweigh other primary considerations.

1. This application is made pursuant to s 500(1)(b) of the Migration Act. This section allows applications to be made to the Tribunal for review of decisions of a delegate of the Respondent under s 501 of the Migration Act.
2. As noted at para [7] above, the Reviewable Decision of 5 February 2020 was communicated to the Applicant by hand on 10 February 2020. She lodged her application for review on 15 February 2020 and is in the migration zone. The Applicant therefore lodged her application for review within the nine day period after she received the decision in accordance with s 501G(1) and s 500(6B) of the Migration Act.
3. Therefore, the Tribunal is satisfied that the application was lodged within time and that it has jurisdiction to review the Reviewable Decision.

1. The application was listed for hearing on 6 April 2020. Following the changes to national circumstances due to the COVID-19 pandemic, the Tribunal announced it was closing to all visitors from Thursday 26 March 2020. The parties and witnesses appeared at the hearing via means of electronic communications, pursuant to the Tribunal's orders in this regard made on 18 March 2020.
2. The hearing commenced on 6 April 2020 in Perth. The Applicant appeared via videoconference from immigration detention and the Respondent appeared by a combination of videoconference and telephone (when, at times, the videoconferencing connection was lost).
3. The Applicant was self-represented and the Respondent was represented by

Mr Jon Papalia, from the Australian Government Solicitor. 4. At the commencement of the hearing, the Tribunal sought to admit the parties' evidence in its entirety. During this process, however, it became apparent that a significant portion of the material previously filed with the Tribunal on behalf of the Applicant had not previously been made available to the Respondent, namely A3 to A8. 5. The hearing was adjourned briefly to give the Respondent an opportunity to review documents A3 to A8 and to give the Applicant the opportunity to consider whether she would be prepared to proceed with the hearing without the benefit of the evidence contained in A3 to A8, given that she had failed to comply with ss 500(6J) and 500(6H) of the Migration Act (the two-day rule). 6. As the issue of compliance with the two-day rule had been raised, the Tribunal provided an explanation of the rule to the Applicant, and was mindful of its obligation to afford procedural fairness to the parties and to consider all relevant issues arising on the review including those matters raised in Direction No. 79. 7. On return, it was agreed that the matter would be adjourned to 14 April 2020 to allow the Respondent the opportunity to consider the material. The Tribunal contacted the Applicant's witnesses (listed at para [12] above) prior to adjourning the matter to confirm they would be available on the later date. 8. The hearing recommenced on 14 April 2020, at which time the Tribunal tendered the parties' materials (A1 to A8 and R1 to R5) into evidence.[36] Again, the Applicant appeared by videoconference and the Respondent appeared via videoconference, and, at times, telephone. Evidence was taken from four witnesses who appeared by telephone.[37] 9. Of those witnesses whom provided statements on behalf of the Applicant, but did not provide oral evidence at hearing (listed at para [14] above), the Tribunal clearly outlined to the Applicant that it anticipated that the Respondent would likely make submissions as to the weight that could be attributed to that evidence given that the Respondent did not have the opportunity to cross-examine those witnesses.[38]

1. The Applicant's offending history is set out in the 'Nationally Coordinated Criminal History Check Results Report' by the Australian Criminal Intelligence Commission released

16 August 2019[39] and the Western Australian Police 'History for Court - Criminal and Traffic' report compiled on 26 March 2020.[40] 2. The Applicant's offending history is summarised in the following table:

Possessed any drug paraphernalia in or on which there was a prohibited drug or plant

Drove or permitted vehicle with false plate to be driven

Possessed drug paraphernalia in or on which there was a prohibited drug or plant

[Counts 1] Motor driver's licence disqualified: 9 months - cumulative; Imprisonment: 6 months 1 day concurrent from 18/09/2018

Person who breaches CRO or community order without reasonable excuse

Person who breaches CRO or community order without reasonable excuse

Person who breaches CRO or community order without reasonable excuse

[Counts 1] Imprisonment: 6 months 1 day concurrent from 18/09/2018

[Counts 1] Imprisonment: 6 months 1 day concurrent from 18/09/2018; motor driver's licence disqualified for 12 months, cumulative from 23/09/2016

Possessed drug paraphernalia in or on which there was a prohibited drug of plant

Possessed drug paraphernalia in or on which there was a prohibited drug of plant

Possessed drug paraphernalia in or on which there was a prohibited drug of plant

No Authority to Drive - Never held and Disqualified

[Counts 1] Imprisonment: 6 months concurrent from 18/09/2018; motor driver's licence disqualified for 9 months cumulative

Carried (possessed) an article with intent to cause fear that someone

[Counts 1] Fine: $300; Motor driver's licence disqualified for 3 months mandatory concurrent

No Authority to Drive - Never held and Disqualified

[Counts 1] suspended imprisonment order 7 months concurrent suspended 12 months from 07/08/2013; Motor driver's licence disqualified for 12 months - cumulative

Possessed drug paraphernalia in or on which there was a prohibited drug of plant

[Counts 1] Fine: $1500; Motor driver's licence disqualified: 9 months - cumulative

Exceed speed limit in a speed; Between 10 and 19 km/h

[Counts 1] Fine: $1000; Motor driver's licence disqualified: 9 months - cumulative

[Counts 1] Fine: $400; Motor driver's licence disqualified: 9 months - cumulative

1. The Applicant's criminal record spans from 2010 to 2019. The Applicant's convictions primarily comprise traffic and illicit drug offences and breaches of community-based orders and other court obligations. In August 2019, when the Applicant's 'Nationally Coordinated Criminal History Check Results Report' was most recently released, the Applicant had nine pending criminal charges before the Magistrates Court of Western Australia.[41] As at 3 April 2020, those charges were still pending and were listed for hearing on 23 April 2020.[42]
2. Between 7 August 2013 and 18 September 2018, the Applicant was sentenced to various terms of imprisonment where the aggregate of those terms is 31 months and two days:[43]

[Count 1] Motor driver's licence disqualified: 9 months - cumulative; Imprisonment: 6 months 1 day concurrent from 18/09/2018

[Count 1] Imprisonment: 6 months 1 days concurrent from 18/09/2018 - Concurrent

[Count 1] Imprisonment: 6 months concurrent from 18/09/2018 - Concurrent

No Authority to Drive - Never Held and Disqualified

[Counts 1] Imprisonment: 6 months concurrent from 18/09/2018 - Concurrent

No Authority to Drive - Never Held and Disqualified

Suspended imprisonment order: 7 months concurrent suspended 12 months from 07/08/2013

1. The character test is defined in s 501(6) of the Migration Act. A person does not pass the character test if the person has a substantial criminal record whereby the person has been sentenced to '2 or more terms of imprisonment, where the total of those terms is 12 months or more'.[44]
2. The Applicant's convictions tabled at para [55] above resulted in sentences of two or more terms of imprisonment, where the total of those terms is 12 months or more.[45]

The Applicant ultimately served a total of three months in prison,[46] however for the purposes of the character test, the relevant term is the term of the sentences imposed by the courts, rather than the term of imprisonment actually served.[47] 3. Accordingly, the Tribunal finds that the Applicant has a substantial criminal record by virtue of s 501(7)(d) of the Migration Act and reasonably suspects that she does not pass the character test by virtue of s 501(6)(a) of the Migration Act.[48] The Applicant has not satisfied the Tribunal that she passes the character test.[49] On this basis the Tribunal is satisfied that the Applicant does not pass the character test.

IS THE TRIBUNAL SATISFIED THAT IT SHOULD EXERCISE DISCRETION TO CANCEL THE APPLICANT'S VISA?

1. The Applicant argued that the discretionary power to revoke her visa cancellation under

s 501(2) of the Migration Act should be exercised. Accordingly, the Tribunal, standing in the shoes of the decision-maker, will consider whether to exercise the discretionary power by considering the relevant primary and other considerations in Direction No. 79. 2. Following the notification of the intention to cancel her visa, the Applicant made representations to the Department requesting that her visa not be cancelled. This included a completed 'Personal Circumstances Form' from the Applicant, a number of written statements from the Applicant, a number of letters of support from family and friends, medical documentation, a copy of an application for a family violence restraining order from August 2017 and a description of her duties as a Dining Area Cleaner at Melaleuca Remand and Reintegration Facility in October 2018.[50] 3. Before the Tribunal, the Applicant's online application,[51] Statement of Facts, Issues and Contentions[52] and oral submissions to the Tribunal outlined her central contentions as to why her visa cancellation should be revoked in similar terms to submissions made before the Department. The Applicant also tendered additional letters of support,[53] course certificates[54] and a psychology report[55] in support of her application. 4. At the hearing, the Applicant reiterated her contentions from her various written submissions[56] that she thought the Delegate's decision was wrong because, while she accepts her offending behaviour was unacceptable, her offences were at the lower end of the scale. The Applicant contends that having had time to reflect on her offending behaviour, discontinue her drug use and her association with negative peers, and align herself with a positive support network, she does not pose a risk to the community at all. The Applicant contends that she would struggle in terms of her health, housing options and employment prospects if she were to be returned to the United Kingdom and that support from her partner and father in Australia is fundamental to her continuing to move forward in her life in a positive manner. 5. The Respondent submitted that the Applicant had committed 15 traffic offences between 2010 and 2019, including whilst under the influence of illicit drugs. The Respondent noted that the Tribunal has repeatedly held that there is little to be said in mitigation for serious irresponsibility in the management and control of a motor vehicle and that continued traffic offences of that kind clearly point to an incapacity to distinguish from right and wrong.[57] The Respondent submitted that, in having regard to Direction No. 79, the nature of the Applicant's conduct is serious. 6. Further, the Respondent submitted that the nature of the harm to the community, should the Applicant commit similar offences, is such that the community should not be expected to tolerate any risk of reoffending. The Respondent submitted that the Applicant is not remorseful, downplays the seriousness of her offending and has not provided any evidence of rehabilitation, having continued her illicit drug use and offending behaviour following her release from prison in 2018. The Respondent submitted that this gives rise to a significant concern with respect to the risk of reoffending. The Respondent submitted that the expectations of the Australian community were that the Applicant's visa would remain cancelled. 7. The Respondent submitted that while the Applicant had indicated she had special relationships with three minor children (the children of two of her friends), she had provided little evidence of this. The Respondent submitted that while it accepted that it will be in the best interests of those children that the discretion to cancel is exercised in the Applicant's favour, less weight should be given to this consideration than would ordinarily be the case, given the nature of the relationship is non-parental. Further, the Respondent contended that while the strength, nature and duration of the Applicant's ties to Australia and the impediments to her removal weigh slightly in her favour, they should be afforded less weight than other primary considerations. 8. The Respondent submitted that the Australian community would expect the Applicant's visa to remain cancelled given the nature of her criminal offending and that this, and the protection of the Australian community, outweighed other considerations in the Applicant's favour, including the best interests of minor children. The Respondent submitted on this basis that the Applicant's visa should remain cancelled. 9. These submissions are considered further below.

First primary consideration: Protection of the Australian Community (para 9.1)

1. Paragraph 9.1(1) of Direction No. 79 provides that when decision-makers are considering the protection of the Australian community they:

(1) ... should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

1. Paragraph 9.1(2) of Direction No. 79 continues on to provide that:

(2) Decision-makers should also give consideration to:

1. The nature and seriousness of the non-citizen's conduct to date; and
2. The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

Nature and seriousness of the conduct (para 9.1.1)

1. Paragraph 9.1.1(1) of Direction No. 79 further provides:

(1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to factors including:

1. The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
2. The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

1. The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

1. Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
2. The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
3. Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
4. The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
5. The cumulative effect of repeated offending;
6. Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
7. Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the noncitizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);

(k) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia

1. The Applicant's offending history is summarised above.[58] The summary of the Applicant's offending indicates that her convictions are primarily comprised of traffic and illicit drug offences and breaches of community-based orders and other court obligations.
2. In her Statement of Facts, Issues and Contentions dated 30 March 2020 (A1),

the Applicant maintained that her offending was at the lower end of the scale,[59] and the

'no authority to drive' offence (for which she was convicted on numerous occasions) is not on the serious end of the scale of offences, in that it does not pose a major risk to the Australian community[60] and is relatively minor.[61] The Applicant stated that she attributed the majority of her offences to the extremely violent and abusive relationship with her ex-partner who, at that time, had a lot of control over her.[62] 3. The Applicant gave evidence that having been pulled over by police for driving without a licence seven times over a five year period,[63] and having been given a suspended prison sentence such that she had 'prison hanging over her head', she did not think it was serious to get in a car and drive without authorisation because drugs impacted her thinking and she was 'always on ... drugs'. [64] 4. The Applicant stated at the hearing that she had been addicted to illicit substances probably since she was about 20 years old.[65] The Applicant said that it was fair to say that on more than one occasion, she failed to appear in court as required as she was under the influence of drugs, and as such 'you forget time, you lose track of time'.[66]

The Applicant also gave evidence that at the time of her motorbike accident on 12 August 2017, where she crashed while riding her motorcycle with false registration plates,

at speeds approximating 120 kph in a 60 kph zone, she had taken methylamphetamine relatively recently to her driving that night.[67] The Applicant said that she did not think it was the right thing to drive with methylamphetamine in her system, but if she did not get back to her then partner, he would 'cause [her] a lot of drama', which he [subsequently] did.[68] 5. The Applicant gave evidence that it came as a 'big shock' to her when Magistrate Benn sentenced her to an immediate term of imprisonment on 18 September 2018, which she 'wasn't expecting', because she was just more worried about 'being on the drugs'.[69] 6. The Applicant stated that while in prison, she had ample time to reflect on her behaviour,[70] reflect on her psychologist's recommendations regarding her continued rehabilitation,[71] complete numerous courses and attend church on Sundays.[72] 7. The Respondent submitted that having regard to the factors set out in Direction No. 79, the Applicant's offending should be viewed as very serious.[73] The Respondent submitted that in particular, the Tribunal should be concerned by the fact that the Applicant has not been deterred by court orders, including the threat of prison, or from reoffending in the same or similar manner. The Respondent submitted that moreover, the Applicant has had little regard for the law or the potential consequences of her actions, evident both from her criminal record and on her own evidence.[74] 8. The Respondent submitted that to illustrate the points it raises (at para [79] above):[75]

COUNSEL: ...the applicant has been to prison on two separate occasions. The first was between 23 July 2016 and 24 July 2016. That was one day when she was arrested on a warrant for failing to appear in the Mandurah Magistrates Court on 5 July 2016. She was granted bail the following day. The second and far more significant was between 18 September 2018 and 17 December 2018, when she was granted parole. Her parole details are at SG1, page 174. The parole period expired on 18 March 2019.

As the tribunal has heard evidence today, the applicant was required, and did do so, to provide - well, give urinalysis samples. Whilst she was still on parole, that is on 5 March 2019, the applicant gave a void or diluted sample. Two days later she gave a valid sample which returned a positive result for amphetamine and methylamphetamine. The Minister submits that clearly the parole order with the specific condition to attend (indistinct) and to provide a valid sample, was no deterrent. The applicant was warned in writing by the Department on 1 June 2019 that considering is being given to the cancellation of her visa. She responded to that notice on 13 June 2019. That's at G7, page 36.

A little over a week later the applicant drove a Holden Commodore Sedan in Halls Head. She was pulled over by the police and acknowledged to the officers that she was aware that she did not have authorisation to drive. Her vehicle was searched and inside her handbag was a glass smoking implement, and a clip-seal bag with approximately 0.1 grams of methamphetamine inside. The Commodore was seized and the applicant charged. This incident comprises charges [charge number redacted] to [charge number redacted] of 2019, for which the applicant has provided the Magistrates Court with written pleas of guilty. The police incident report is at SG2, pages 408 to 409.

Then on 17 September 2019, the applicant drove a Yamaha motorcycle, bearing false registration plates, in Halls Head. She drove it approximately -

I withdraw that submission. On 17 September 2019, police officers in Mandurah observed a motorcycle driving on Mandurah Road near Old Coast Road. That motorcycle had crashed and police officers attended at the scene. Then they found a purse with numerous cards in the applicant's name and some drug paraphernalia. That's at SG2, page 403.

The applicant gave evidence today that she was not the driver of the bike or the driver of the second bike that was also at the scene, but that it was her motorcycle. The applicant was interviewed by police on 16 November 2019 in respect of that incident and failed to identify the driver. Consequently, she was charged with the relevant road traffic (indistinct) offence. That is charge [charge number redacted] 2019, to which the applicant has entered a guilty plea to before the court, and it is at SG2, page (indistinct).

The 16th was a busy day for the applicant. Some two hours prior to that interview, the applicant rode a Honda motorcycle in Erskine. She was pulled over by the police. The motorcycle registration plates had been fraudulently altered and - rather, it was identified that the plates had been fraudulently altered. That conduct is charges [charge number redacted] to [charge number redacted] of 2019, which the applicant has entered guilty pleas to before the court. The applicant was released on bail a short time later.

As a condition of bail, the applicant attended for urinalysis in January and February 2020. She returned positive readings for amphetamine and methylamphetamine on eight occasions between 18 January 2020 and 7 February 2020. It should be noted that the delegate's decision was on 5 February 2020, and that she was notified by hand on 10 February 2020 when she was taken to immigration detention.

During that period on 26 January 2020, the Minister submits that the applicant was seen driving a Honda motorcycle on Leighton Place in Halls Head.

She was observed by the traffic control group (indistinct) of the Mandurah Police Station who recognised her. They stopped their police car right in front of her and activated emergency lighting. The applicant drove behind the police vehicle and headed towards Old Coast Road. The police gave chase, however, they avoided the pursuit after seeing (indistinct) almost lose control.

They went to her residence and spoke to her then boyfriend, Mr Howeth, [sic] who stated that she was not at home. They then went to the local IGA which had CCTV footage of her arriving at the store on the motorbike. The officers returned to her home address, that is the applicant's home address, and issued a surrender notice in respect of the motorcycle. This conduct comprises magistrates court [sic] charges [charge number redacted] to [charge number redacted] of 2020. The applicant is yet to plead. The relevant passages of the SG bundle are pages 394 to 402, which includes photographs of the applicant on a motorcycle.

I've already discussed the relevance - what the Minister says in respect of those charges and in respect of the applicant's pleas. The Minister relies on the material in the bundle of supplementary documents, as so far as they relate to other serious conduct, and we say that the tribunal should be concerned that the applicant committed that conduct after her release from imprisonment and after she was warned in writing that the Minister was considering the cancellation of her visa. The applicant was aware of the grave nature of these matters, as she responded to the Minister's Department within a matter of days of receipt. That response indicated her appreciation of the seriousness of that notice.

As we noted in our statement of facts, issues and contentions, this tribunal has repeatedly held that there is little to be said in mitigation for serious irresponsibility in the management and control of a motor vehicle, and that continued traffic offences of that kind clearly point to an incapacity to distinguish right from wrong. In respect of the extant charges that the applicant has before the court, the Member will be familiar with where she can find the maximum sentence for those offences, namely in the legislation in this State.

However, I will briefly indicate what the Minister understands to be the maximum penalty in respect of each of those nine charges. In respect of [charge number redacted] of 2019, for a first offence that's 24 penalty units, namely $1,200, and that's set out in the Road Traffic and Administration Act 2008, section 34, subsection (3). In respect of [charge number redacted] of 2019, the maximum sentence is 50 penalty units, namely $2,500. In respect of [charge number redacted] of 2019, given that it is a subsequent offence, it's a minimum of 20 penalty units or $1,000, to a maximum of 80 penalty units or $4,000, and 18 months imprisonment.

It is the case that driving whilst not authorised carries a prison sentence,

and the Minister submits that that speaks to the objective seriousness of the offence, and it is the case that the applicant has been sent to prison, and had been sentenced to - well, it is the case the applicant has been sentenced to three terms of imprisonment, two of which were suspended on separate occasions for that offence, and the applicant has been sentenced to an immediate term of imprisonment in respect of that offence.

In respect of [charge number redacted] of 2019, the maximum sentence is $36,000 and/or three years' imprisonment. In respect of [charge number redacted] of 2019, it's 20 penalty units to 80 penalty units, and 18 months' imprisonment, it being the charge of driving without authority, a subsequent offence. And in respect of [charge number redacted] of 2019, it's $2,000 and/or two years' imprisonment. In respect of the 2020 charges for [charge number redacted], the maximum sentence is 10 penalty units or $500, and six months' imprisonment. For [charge number redacted] of 2020, it's 20 to 80 penalty units and 18 months' imprisonment. And for [charge number redacted] of 2020, it's 50 penalty units or $2,500.

I should say, for the record, in respect of the charge of driving whilst not authorised to do so, the first time offence is eight penalty units to 40 penalty units, and 12 months' imprisonment. For a second or subsequent offences it is the 20 to 80 penalty units, being the minimum of 20 penalty units and 18 months' imprisonment.

The Minister says that this is a clear case where there is a repeated history of flagrant disregard for the safety of other users of the road. The applicant herself has suffered injuries arising from her driving on 14 August 2017, namely a closed fracture on her second vertebrae and a fractured left ankle. Yet she has continued to drive whilst not authorised to do so, and apparently under the influence of illicit substances. Moreover, she continues to drive in a dangerous manner, either to evade police or at reckless speeds.

1. Applying para 9.1.1(1)(a) of Direction No. 79, there is no evidence nor does the Respondent submit that any of the Applicant's crimes are of a violent or sexual nature. Similarly, there is no evidence, nor does the Respondent submit that any of the Applicant's crimes:
   • are against women or children (applying paras 9.1.1(1)(b) of Direction No. 79);
   • are against vulnerable members of the community or government representatives or officials (applying para 9.1.1(1)(c) of Direction No. 79); or
   • were committed while the Applicant was in immigration detention or during an escape from immigration detention (applying para 9.1.1(1)(d) of Direction No. 79).
2. There is no evidence before the Tribunal nor does the Respondent submit that the Applicant has provided false or misleading information to the Department (applying para 9.1.1(1)(i) of Direction No. 79) or that the Applicant committed any offences or engaged in any relevant conduct in another country (applying para 9.1.1(1)(k) of Direction No. 79).
3. As to para 9.1.1(1)(e) of Direction No. 79, the Respondent submitted at hearing that:[76]

...for the purposes of considering the protection of the Australian community, the tribunal needs to consider whether or not there is more than one basis upon which the applicant fails the character test. And the Minister submits that when one has regard to the extant changes [sic] and her prior criminal record, that there is a live concern that she would not pass the character test in 501(6)(c) through to (d)...

1. The Tribunal agrees with the submission at para [83] above that the Applicant's extant charges are of concern in the context of para 9.1.1(1)(e) of Direction No. 79.
2. The Tribunal has considered the sentences imposed on the Applicant by the courts in the context of assessing the nature and seriousness of the Applicant's offending

(in accordance with para 9.1.1(1)(f) of Direction No. 79). As noted earlier, the Applicant has been sentenced to various terms of imprisonment where the aggregate of those terms is 31 months and two days.[77] On all other occasions the Applicant was sentenced to fines ranging from $100 to $1500, which, in the Tribunal's assessment, are relatively minor.

The Applicant received a number of suspended sentences and intensive supervision orders following a lengthy offending history and prior to her being sentenced to an immediate term of imprisonment, to which her response was 'underwhelming'.[78]

The Tribunal is of the view that this reflects efforts of the justice system to afford the Applicant opportunities to rehabilitate. 3. With respect to the frequency of the Applicant's offending and whether there is any trend of increasing seriousness (applying para 9.1.1(1)(g) of Direction No. 79) in terms of the Applicant's overall offending, the Tribunal does not regard that there has been an increase in seriousness per se. The Applicant's offending history commenced with driving without authority and possession of drugs or drug paraphernalia and her most recent convictions are for similar drug and traffic offences.[79] The Tribunal accepts that this does not reflect a particular increase in the seriousness of the offending. With respect to frequency, the Applicant has a series of offences over a seven year period from 2010, with further extant charges through to 2020. 4. Taking the Applicant's offending history as a whole, consisting of 30 offences in seven years (and noting six of the nine extant charges for which the Applicant has entered a guilty plea),[80] the Tribunal regards the Applicant as a frequent offender. In the Tribunal's assessment, there are no periods of non-offending that the Tribunal considers to be significant. 5. In the Tribunal's view, the cumulative effect of the Applicant's offending (applying para 9.1.1(1)(h) of Direction No. 79) must be regarded as contributing to the seriousness of the offending, as the history of offending, particularly repeated breaches of community based orders and other court obligations, results in costs being incurred, in terms of the resources of the police, court system and corrective services. 6. Relevantly to para 9.1.1(1)(j) of Direction No. 79, and as at the time of publication of this decision, the Tribunal is unaware of the outcome of the extant charges against the Applicant scheduled to be heard on 23 April 2020.[81] If the Applicant were to be convicted of any of the offences related to those nine charges, which is a reasonable possibility given that the Applicant has entered a guilty plea to six of those charges,[82] then it would be the case that she has re-offended since being made aware, in writing, of the consequences of her further offending in terms of her migration status. 7. Weighing up the above considerations, the Tribunal finds that, on balance, the Applicant's offending is very serious and weighs strongly in favour of the cancellation of the visa.

In applying the relevant paragraphs of Direction No. 79, the Tribunal emphasises that it has taken into account that: * (a) Each individual offence is not, of itself, one of a category of offence that Direction No. 79 regards as being viewed very seriously regardless of the sentence imposed. * (b) The Applicant's offending history does not reflect a particular increase in the seriousness of the offending over time per se, in the sense that, for example, the offending has not escalated into particularly violent crime. * (c) However, the seriousness and potential harm of driving offences,

the cumulative effect of multiple traffic offences and repeated traffic offences as a signifier as a lack of respect for the rules governing the operation of a motor vehicle are taken very seriously by this Tribunal.[83] The same has been said of the effect of drug crimes in the community.[84] 8. The Tribunal considers that as such, the consequences of any further reoffending could have devastating effects on the community.

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (9.1.2)

1. A decision-maker should also have regard to the following principle, described in para 9.1.2(1) of Direction No. 79 as follows:

(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

1. Paragraph 9.1.2(2) of Direction No. 79 further provides:

(2) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

1. The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
2. The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
   1. information and evidence on the risk of the non-citizen re-offending; and
   2. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

1. In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359,

389 [111] (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424, 444-445 [94]-[95], as well as by Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705; (2015) 148 ALD 117, [42]-[43]):

An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality, but also on the seriousness of the consequences if it does.

1. In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 at [68] Moshinsky J stated that: '...there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational'. Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7 at [41], Kenny J also referred to the basis for the assessment of the risk of re-offending as requiring a 'rational and probative basis'.
2. The Applicant maintains that her offending is directly linked to her addiction to methylamphetamine.[85]
3. The Applicant states that she has 'made big steps to ensure that she does not turn back to drugs and to having a disregard for the law'[86] and she believes that she does not pose a threat to the Australian community at all.[87]
4. The Applicant stated that:[88]

Before [sic] was incarcerated I did not have much regard for the law and since being locked away from my loved ones I have had time to reform myself and build myself back into the person I knew I always was as well as develop a framework for a healthy life, it has resulted in better relationships and quality of life and the ability to live and function without a drug addiction as I was prior to being in jail...

...My courses that I have completed have helped me recognize [sic] that I am not worthless and a no hoper. They have given me the confidence to stay away from drugs. They strip you of everything good and with using it will kill the ambition I now have and wear proudly.

Seeing a psychologist[89] has helped me profoundly and it had provided me with the help I need and helped me form a set of personal values that I hold true, and helped me identify the negative signs and behaviour in people so I can steer clear from it and this has helped immensely...

...I have remained persistent in achieving a clean life whilst being detained. This shows complete capability of being able to not wanting to go back to drugs in times of stress and capable of dealing with life without drugs.

1. It was put to the Applicant at hearing that her 'risk of reoffending' score of 11 (from a range of 1 to 22), obtained by assessment on admission to prison in 2018,[90] meant that she was not at a low risk of reoffending. In response, the Applicant said that she understood that 'it's not high but it's not as low as it could be'.[91]
2. The Applicant was released on parole on 17 December 2018 and went to live with her father.[92]
3. On 17 January 2018, Ms Dalwood was of the view that:[93]

Whether Ms Hood will relapse if provided with opportunities to change herself is unknown, however she has severe and multiple issues that have made her life complex and she has hit a severe low level as measured in the doctor's report for anxiety, stress and depression.

1. On 5 March 2019, the Applicant attended for a urinalysis in accordance with the conditions of her parole.[94] The result of the urinalysis was void as the sample was dilute.[95] At the hearing, the Applicant admitted that she had drunk a lot of water to dilute her urine sample provided on 5 March 2019 because she had taken amphetamine and methylamphetamine on 5 March 2019,[96] 13 days prior to the conclusion of her parole order.[97] No further action was taken by her parole officer in relation to the positive result.
2. Subsequent urinalysis samples provided by the Applicant on 7 March 2019, 8 January 2020, 10 January 2020, 13 January 2020, 24 January 2020, 31 January 2020, 3 February 2020, 5 February 2020 and 7 February 2020 gave a positive result for amphetamine and methylamphetamine.[98]
3. When asked why she returned to using drugs in March 2019 after having been in prison, completing a series of courses and just prior to the end of her parole order, the Applicant said that at that time she still had 'negative peers' in her life (whom she no longer has contact with)[99] so she started to 'get back into to [her] old ways'.[100] The Applicant said her negative peers were associated with drugs, they would offer drugs to her and she would take them. The Applicant said that she would not allow that to happen now and it was stupid that she allowed it back then.[101] The Applicant said that at the time she returned to spending time with her negative peers, it was against the advice of her father and

Ms Filgate, whom she chose to 'pretty much' ignore.[102] 4. At the hearing, the Applicant confirmed she was aware that in June 2019, when the Department issued the Notice[103] it was because of her criminal record.[104] The Applicant conceded that shortly after, on 21 June 2019, she was pulled over by police for driving without authority[105] and also that at the time of hearing, she had nine extant charges in the Drug Court, relating to charges laid throughout 2019.[106] 5. When asked how these charges sat with the Applicant's written submission that since being released from prison she has not touched any drugs at all,[107] the Applicant said that she had started using drugs in March 2019 but 'it wasn't consistent from there on, it was bit by bit, then it just started becoming consistent again'.[108] The Tribunal notes that in her statement to the Department dated 18 October 2019, the Applicant maintains that she was no longer using drugs.[109] 6. The Respondent contended that the Tribunal has genuine reasons to be concerned with respect to the risk of reoffending having regard to:[110] * The author of the Applicant's parole review report dated 2 October 2018, was of the view that parole should be denied given the Applicant's unmet treatment needs, her breach of prior orders, her criminal history being reflective of numerous charges similar to her current offences and because her release plan did not include sufficient strategies to reduce her risk of reoffending.[111] However, the Parole Board took the view that the conditions of her parole order would further reduce the risk to the safety of the community.[112] Clearly, the parole order did not reduce the risk to the community because the Applicant reoffended. * Put another way, the Applicant failed to abstain from using illicit drugs whilst she was the subject of the parole order. She failed to give a valid urinalysis sample and gave positive samples for amphetamine and methylamphetamine. * The Applicant's offending is causally linked to her use of methylamphetamine and it is clear that she has had a sustained habit for some ten years, including after her release from prison and up until February 2020. * While the Respondent did not have the opportunity to cross examine Ms Dalwood on her more recent report,[113] particularly regarding her view on the Applicant's risk of recidivism, Ms Dalwood reported that the Applicant should be referred for formal assessment and the need for counselling. The Tribunal should not be confident that any support of that kind would protect the community or otherwise reduce the risk of recidivism based on her conduct after release of parole from December 2018 onwards. This is important because of the Applicant's evidence about the shock of her imprisonment[114] and that she now has an appreciation, albeit somewhat limited, of the personal and broader consequences of her offending conduct. Notwithstanding this, the Applicant continues to downplay the risk to the community of her unauthorised driving. * The Applicant essentially maintains that the real catalyst for change was the actual cancellation of her visa and immigration detention. The Applicant was subject to a stringent regime when she was in prison and on parole. It remains the case that the Applicant's assertion that she will be fine upon release is yet to be tested -

in one sense it has been tested because the Applicant did not avail herself of two suspended imprisonment orders and then parole. Rather, the Applicant returned to reoffending. * When one looks at all the evidence, there is a consistent theme - the Applicant has a sustained drug habit and she does not consider that the law applies to her. Whilst the Applicant has said the 'right thing', her record and recent conduct indicate the Tribunal cannot confidently rely on these assertions. 7. The Respondent submitted that, given the nature of the Applicant's offences and the nature of the harm to individuals should the Applicant engage in further criminal conduct,

the Australian community should not be expected to tolerate such a risk of reoffending and that this factor should weigh heavily against the Applicant.[115] 8. Regarding the nature of harm to individuals if the Applicant were to engage in further criminal or other serious conduct,[116] the Applicant has a history which includes numerous drug offences and traffic related offences (including while under the influence of illicit drugs). Such offending presents a risk to the safety of the community on the road and members of the public could suffer serious injury or even death if an accident resulted. Drug and traffic offences are taken very seriously by this Tribunal.[117] The community's tolerance for any risk of future harm of this nature is low.[118] 9. With respect to the evidence on the likelihood that the Applicant will engage in further criminal or other serious conduct,[119] the available medical evidence before the Tribunal is limited to Ms Dalwood's opinion in 2018 that whether the Applicant would relapse into further offending was unknown.[120] Ms Dalwood's later report, approximately one year later, did not provide an opinion on the Applicant's risk of reoffending.[121] What is clear, however, is that the Applicant has continued her drug use and offending conduct following her release from prison, notwithstanding her completion of a number of rehabilitative courses, her (limited) participating in counselling, her having gone to live with her father in an unsuccessful attempt to dissociate from negative peers and her belief that she would not reoffend. 10. The Tribunal has considered the available evidence of the Applicant's pro-social community supports indicated in her letters of support.[122] The letters attest to the Applicant being 'drug free', her generosity, her good moral character, her willingness to help others, her positivity, her work ethic and to the declarant's ongoing support for the Applicant. 11. Notwithstanding that only a limited number of those declarants made themselves available to be cross-examined on their statements at hearing, the Tribunal accepts the witnesses' evidence as supporting the Applicant's contention that she can conduct herself as a productive member of the community. 12. However, any weight that the Tribunal may place on the letters of support is considerably diminished by the fact that the Applicant has committed further drug and traffic offences since her release from prison, including at the time she was living with her father, one of her community supports. Further, the frequency of her offending weighs against the Applicant in the context of the Tribunal being able to give weight to the time in the community since the Applicant's most recent offence - [123] in the Tribunal's view there has been no significant period during which it can be said that the Applicant did not engage in offending conduct. 13. The Applicant showed little insight into her offending. The Tribunal is of the view that while the Applicant has an understanding of the practical consequences of her offending, and maintained that she can continue to be law abiding and lead a law-abiding life,[124] this is yet to translate into an ability to avoid offending behaviour or to cease drug use. 14. The Applicant's more recent drug taking behaviour, her unmet treatment needs in this regard and the link between her drug taking and offending behaviour is of particular concern in the present context, as the Applicant's stated commitment to not reoffend in this way has not been demonstrated to a degree where the Tribunal could regard that she presents a low or no risk of reoffending. Having considered the evidence, the Tribunal finds there is a moderate risk of the Applicant reoffending in a similar manner to her prior offending, with the greatest risk arising with respect to drug and traffic offences. This must be balanced against the nature of the harm that could result if the Applicant were to commit further drug or traffic offences which could be very serious. On balance, the Tribunal finds that the risk to the Australian community is unacceptable and overall this primary consideration weighs strongly against the Applicant, that is, strongly in favour of exercising the discretion to cancel the Applicant's visa.

Second primary consideration: Best interests of minor children in Australia (9.2)

(1) Decision-makers must make a determination about whether cancellation is, or is not, in the best interests of the child.

(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to cancel the visa is expected to be made.

(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

1. Paragraph 9.2(4) of Direction No. 79 continues on to outline the factors that a

decision-maker must consider when determining the best interests of a child:

(4) In considering the best interests of the child, the following factors must be considered where relevant:

1. The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
2. The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

1. The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

1. The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
2. Whether there are other persons who already fulfil a parental role in relation to the child;
3. Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
4. Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
5. Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

1. The Applicant has identified three minor children whom she considers would be negatively impacted if her visa remained cancelled. They are the two young daughters of her friend, Ms Taylor-Cooper and the young son of a friend (Ms Fawcett's grandson). While the Applicant did not make specific submissions regarding the best interests of these minor children and these interests weighing against cancellation of her visa and outweighing other primary considerations, the Tribunal interprets the Applicant's evidence regarding her relationship with these children as consistent with such a position.
2. The Respondent accepts that it will be in the best interests of those three children that the discretion to cancel the visa is exercised in the Applicant's favour. The Respondent submits, however, that less weight should be given to this consideration than might ordinarily be the case having regard to the nature of their non-parental relationship.[125] (R1, paragraph.
3. There is very little evidence before the Tribunal regarding the Applicant's relationship with the three minor children.

1. Ms Taylor-Cooper indicates in her letter dated 26 June 2019 that her two daughters, aged two and three respectively have never known life without the Applicant and that they love her.[126] Ms Taylor-Cooper was unable to be reached at the hearing and hence did not provide oral evidence and was unable to be cross-examined by the Respondent.
2. At the hearing, the Applicant said that she has known Ms Taylor-Cooper's daughters since they were very young and that she has grown to love them.[127]

1. Ms Fawcett indicates in her letter dated 22 June 2019 that the Applicant has a special relationship with her six year old grandson.[128] In her letter dated 11 February 2020,

Ms Fawcett said that when the Applicant visits her grandson, his eyes light up and he feels special.[129] At hearing, Ms Fawcett did not wish to add anything regarding the matters addressed in her statements.[130] 2. At hearing, the Applicant said she had a bond with Ms Fawcett's grandson since he was born and that he lights up every time he is around her.[131] The Applicant said that she did not have a parental relationship with Ms Fawcett's grandson.[132] 3. The Tribunal has considered the three minor children's interests together and individually to the extent there is information that their interests may differ.[133] 4. The Applicant claims to have known each of the three minor children from a very young age and concedes that her relationship with each child is non-parental (para 9.2(4)(a) of Direction No. 79). 5. There is no evidence before the Tribunal regarding the matters set out at paras 9.2(4)(b) to 9.2(4)(h) of Direction No. 79 inclusive. If the Applicant were to not re-offend she could, in future play a positive role in these children's lives. However, for reasons stated above, the Tribunal considers there is a moderate risk that the Applicant will continue to reoffend. 6. On the basis of the limited material before it, the Tribunal concludes that it is in the best interests of the three minor children that the Applicant's visa not be cancelled. However, the Tribunal finds that the weight to be given to this primary consideration is reduced as the Applicant is not in a parental relationship with any of the children and there are other persons who already fulfil a parental role.

Third primary consideration: Expectations of the Australian community (9.3)

(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. Decision-makers should have due regard to the Government's views in this respect.

1. The Applicant did not make specific submissions in relation to the expectations of the Australian community but stressed that she has reformed since her time in prison and is completely off drugs.[134] The Applicant stated that she wants to show the Australian community that she has turned over a new page in her life since her past mistakes and she wants to give back to the community that she once took for granted.[135]
2. Citing the Full Court decision in FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 374 ALR 601 (FYBR (FC)) [66] (Charlesworth J) and [91] (Stewart J), the Respondent submitted that para 9.3(1) of Direction No. 79 is a statement of the Government's view as to the expectations of the Australian community for the purposes of determining whether or not to cancel a visa. Accordingly, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to the Applicant's circumstances or evidence about those expectations.[136] The content of the expectation is expressed in para 9.3(1) to the effect that the paragraph points to the likelihood that the community expectation will in most cases call for cancellation, without dictating an inflexible conclusion. The question for the Tribunal is the weight to be attached to the consideration.
3. In this regard, the Respondent submitted that the expectations of the Australian community should be found to weigh heavily in favour of the cancellation of the Applicant's visa[137] having regard to:
   • the fact the Applicant has a serious criminal record[138] and that the community's tolerance to any further risk of harm would be low;[139]
   • the Applicant has breached the Australian community's expectation that Australian law be adhered to and there is an unacceptable risk of her doing it again;[140]
   • the Applicant arrived in Australia when she was 16 years old and commenced her course of offending just over three years later;[141] and
   • the Applicant no longer has the benefit of youth, and has, on any measure, been a burden upon the criminal justice system, and the tax payer for a considerable period of time.[142]
4. At the hearing, the Respondent submitted further:[143]

...This tribunal has in recent decisions demonstrated an increasing awareness of the disastrous impact on the Australian community of the rising road toll. There has also been a considerable road safety campaign in this state (indistinct).

The tribunal has not been (indistinct) that the Supreme Court of Western Australian has made numerous statements over the years about the distress caused within the community by reason of deaths resulting from the driving of motor vehicles in circumstances that constitute manslaughter or dangerous driving causing death. See, for example, Punch v The Queen (1993) 9 WAR 486 at page 407. See also Ainsworth v D (A Child) (1992) 7 WAR 102 at pages 115 to 116. More recently, in Cale v The Queen (2004) (indistinct) 222 reported at (2004) 147 A Crim R 481. At 63 Miller J made reference to the Chief Justice's remarks in Ainsworth and said:

These observations are particularly pertinent in the 21st century. In 2004 there is even awareness of the misery caused to the families of victims of motor vehicle related deaths then there would in 1993. Road safety campaigns of the last decade have increased the vigilance (indistinct) on public roads. (Indistinct) support groups have highlighted to society the terrible toll on family life brought by such killings on the road.

The applicant has not driven a vehicle resulting in the death of a person. However, the applicant has driven a motorbike that resulted in a crash. She herself suffered injuries. Yet, notwithstanding the personal consequences of her actions, leaving aside the criminal sanction, the applicant has continued to drive vehicles whilst not being authorised to do so. The Minister submits that when one has regard to the duration itself and to the community's sentiment around the significance of getting into a vehicle, that the community expectations weigh against the applicant.

1. The Australian community expects the Australian Government to cancel the visas of

non-citizens who commit serious crimes,[144] and non-citizens who commit serious crimes should generally expect to forfeit the privilege of staying in Australia.[145] 2. What is meant by references to 'expectations of the Australian community', which are contained in Direction No. 79 and, in particular, how the expectations of the Australian community are to be determined, has been the subject of significant judicial consideration.[146] 3. In FYBR (FC), Stewart J summarises the 'community expectations' as expressed in the Direction as follows (at [100]): * non-citizens will obey Australian laws when in Australia; * it may be appropriate to refuse a visa application were a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere; * in a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences are such that they should not be granted a visa.

Understood in this way, community expectations are simply, and informally, expressed as follows: "If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive."

1. Having regard to the judgments of Stewart and Charlesworth JJ in FYBR (FC),

the Tribunal must give effect to the norm stipulated in para 9.3 of Direction No. 79

(that the Australian community expects non-citizens to obey Australian laws whilst in Australia), which will, in most cases, weigh in favour not revoking the visa cancellation. 2. Paragraph 6.3(3) of Direction No. 79, in summary, provides that non-citizens who have committed serious crimes, including crimes of a violent or sexual nature, should generally expect to be denied the privilege of staying in Australia. 3. The Tribunal notes that it is not just crimes of a violent or sexual nature that can be regarded as serious. The Tribunal has found that the Applicant's offending, particularly her drug and traffic related offences to be serious. As discussed above,[147] traffic and drug offences can cause serious harm to the community, and the Tribunal regards the Applicant's repeated driving without authority offences, in particular, to be serious. 4. The Tribunal accepts the Respondent's submission that the Australian community expects that the Applicant's visa be cancelled in such circumstances.[148] The construction of

para 9.3 of Direction No. 79 confirmed in FYBR (FC), together with these principles, supports the conclusion that the Australian community would expect Applicant's visa to be cancelled. 5. The Tribunal will discuss the weight to be given to this consideration at the conclusion of these reasons for decision as part of the overall weighing exercise.

(1) In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

1. International non-refoulement obligations;
2. Strength, nature and duration of ties;

1. Impact on victims;
2. Extent of impediments if removed.

1. Paragraph 10.1 of Direction No. 79 provides that decision-makers must take into account any non-refoulement obligations that Australia may have with respect to the person whose visa has been cancelled.
2. The Applicant did not raise any issue of non-refoulement in her submissions or in her application to the Tribunal. Similarly, the Respondent submitted that it did not understand the Applicant to have raised any claim that returning her to the United Kingdom would be in breach of Australia's non-refoulement obligations.[149]
3. On the basis of the evidence before it, the Tribunal finds that the issue of non-refoulement obligations does not arise with respects to the Applicant's return to the United Kingdom and the Tribunal places no weight on this consideration.

1. Paragraph 10.2(1) of Direction No. 79 provides:
   • (1) Reflecting the principles at 6.3, decision-makers must have regard to:
     1. How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
        1. less weight should be given where the non­citizen began offending soon after arriving in Australia; and

ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

1. The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of cancellation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

1. The Applicant arrived in Australia on 3 March 2007, at the age of 16. Aside from a six-month period between January and August 2008, she has generally remained in Australia.[150]
2. The Applicant commenced offending approximately two years later, in November 2010, and has continued to re-offend until she was taken into immigration detention upon the cancellation of her visa.
3. The Applicant has spent approximately three years positively contributing to the Australian community through being employed between January 2008 and August 2008[151] at two car yards, from May 2014 to November 2014 and February 2015 to June 2015 as a car window tinter, and from January 2016 to February 2019 in casual retail work.[152]

The Tribunal accepts on the basis of the evidence that the Applicant has made a positive economic contribution to the community through her past employment. The Tribunal also accepts that should the Applicant be released, she would be able to resume her retail employment.[153] 4. The Applicant provided a number of letters of support from family, and from friends, her boyfriend and her ex-employer who have known her for a number of years.[154] Those witnesses who authored letters of support, four of whom provided evidence at hearing

(to the extent they confirmed the contents of their statements), attest to the Applicant's work ethic and character. The Tribunal places weight on the support of these witnesses for the Applicant remaining in Australia. 5. The Applicant's mother and brother live in the United Kingdom. The Applicant claims she would be unable to seek support from her mother and brother should she be returned to the United Kingdom. Whether or not this is the case (which the Tribunal was unable to objectively confirm), the Tribunal accepts that if the Applicant returns to the United Kingdom she will suffer the loss of regular contact with her boyfriend,[155] her father, her father's partner,[156] and her friends who live in Australia. This will cause them hardship and emotional distress. 6. On balance and based on the above, the Tribunal considers that the Applicant's ties to the community are strong in terms of the length of time she has been in Australia, the fact that her father, boyfriend and friends reside here in Australia and that she has contributed positively to the community through her employment. However, when balanced against the Applicant's lengthy and frequent offending history, the Tribunal finds that this consideration weighs slightly in favour of the Applicant, that is, slightly against, exercising the discretion to cancel the Applicant's visa.

1. There is no evidence before the Tribunal that the cancellation of the Applicant's visa will have a relevant impact on Australian business interests (para 10.3(1) of Direction No. 79).

1. There is no evidence before the Tribunal that the cancellation of the Applicant's visa will have a relevant impact on victims (para 10.4(1) of Direction No. 79).

1. Paragraph 10.5(1) of Direction No. 79 provides:

(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

1. The non-citizen's age and health;
2. Whether there are substantial language or cultural barriers; and

1. Any social, medical and/or economic support available to them in that country.

1. The Applicant submitted that she would face significant impediments if removed from Australia for the following reasons:
   • Her health is of concern. The colder climate in England would have a major impact on her health and wellbeing, particularly the discomfort she experiences following her spinal surgery.
   • She has no family support in the United Kingdom as she does not get on very well with her mother and her brother has his own life. The thought of having to build another life from scratch would send her into depression and negatively impact her.[157]
2. The Respondent submitted that the consideration of extent of impediments if removed should be afforded slight weight in the Applicant's favour, considering that:[158]
   • The Applicant is a 29-year-old female, who appears to suffer from depression, anxiety and stress and may also suffer from Post-Traumatic Stress Disorder and Attention Deficit Hyperactivity Disorder. It is evident that she also suffers with matters associated with substance abuse.
   • The Applicant also had a motorbike accident on 13 August 2017. There she suffered a closed fracture on the second vertebrae and a fractured left ankle. She underwent treatment, including surgery at Royal Perth Hospital and was discharged on

17 August 2017. That injury has evidently not deterred the Applicant from taking drugs or from riding motorbikes without a licence. * As the Applicant's country of origin is the United Kingdom, there are no substantial language or cultural barriers, given our shared history and similar culture. * The Applicant also has immediate and extended family in the United Kingdom. Namely, her mother Theresa Milner, her brother Damien Wood and her grandfather Peter Hood. * There will no doubt be a period of adjustment for the Applicant in finding stable accommodation and a source of income. The Applicant would also have to develop new social networks. * As a citizen of the United Kingdom, the Applicant will have the same level of social, medical and economic support as available to other citizens. This includes access to free healthcare via the NHS, housing services (including homelessness assistance) and social security. * The United Kingdom and Australia have comparable levels of expenditure on healthcare, physician and hospital density. * There are also agencies like Prisoners Abroad or the Red Cross who are able to provide some limited assistance to persons returning to the United Kingdom. * The Applicant would be in a position to establish herself and to maintain a basic living standard in the United Kingdom. * Any impediments to the Applicant are not insurmountable. 3. The Tribunal accepts that the Applicant has been in Australia for a significant period of her life and regards herself as Australian. The Tribunal also accepts that the Applicant has some health issues following her spinal surgery, depression[159] and requires treatment for her drug use. There is no other evidence before the Tribunal that the Applicant has any other particular health issues which may cause an impediment to her removal and no evidence that the Applicant would not have access to health services that are generally available to citizens of the United Kingdom. 4. The Tribunal accepts that there would be a period of adjustment for the Applicant in finding accommodation, a source of income and to develop new social networks. In this regard, the Tribunal notes the Applicant has experience working in car and retail industries which would be likely to give her a capacity to earn an income in the United Kingdom. However, the Tribunal accepts that this process may take some time and that this may cause the Applicant some hardship as a result. 5. The Tribunal accepts that the Applicant will likely suffer emotional hardship as a result of separation from her family, friends and her boyfriend, notwithstanding her father and her father's partner currently live in Adelaide. In this regard, the Tribunal notes that there are references in the evidence to past depression.[160] This raises the possibility that the Applicant's mental health may be adversely affected by returning to the United Kingdom. 6. Oral submissions were made at the hearing regarding the impact of the COVID-19 pandemic on this application, following a request from the Tribunal to do so prior to the hearing. The Respondent submitted:[161]

...On 31 December last year the World Health Organisation was informed of cases of pneumonia of an unknown aetiology detected in Wuhan City, Hubei Province, China. That cluster was subsequently identified as the Corona Virus disease COVID-19 and severe acute respiratory symptoms of Corona Virus (indistinct).

On 30 January 2020 the World Health Organisation declared a public health emergency of international concern. On 11 March 2020 the World Health Organisation declared COVID-19 to be a pandemic, that is an infectious disease outbreak that spreads on a global scale.

The COVID-19 pandemic has led to restrictions on the movement of people in both Australia and the United Kingdom. As the [T]ribunal is aware officers of the [R]espondent's department are required by force of section 198 of the Act to remove her from Australia as soon as reasonably practicable and she must be detained until she is so removed.

I have to point out the [A]pplicant has requested to be removed in writing. As I understand it to be that request has not been [with]drawn, that is by force of section 198(1). The [A]pplicant is presently required to be removed from Australia as soon as reasonably practicable. In the event that the [T]ribunal was to affirm the review by force of section 198(2A)(c) the [A]pplicant (indistinct) was required to be removed as soon as reasonably practicable.

There is not - well, it is the Minister's position that there's not a particular difference in terms of which limb of section 198 that applies. We say that whether or not removal will be practicable is likely dependent upon international events in respect of the COVID-19 pandemic. However, we submit that it cannot be said that the [A]pplicant's removal will never be practicable. Moreover Australia and the United Kingdom have broadly comparable health services.

Whilst in detention the [A]pplicant will have access to medical services provided by the [R]espondent's health services contractor, International Health and Medical Services IHMS, and those available in the Western Australian public health system in the event she requires more complex care. In the United Kingdom the [A]pplicant will have access to the UK public health system.

The [A]pplicant did not (indistinct) the [R]espondent contends that this other consideration is effectively neutral in the balancing exercise. The Minister is aware of only one tribunal decision that's been published that has dealt with COVID-19. That has been FRVT... v the Minister - - - [2020] AATA 294...

...Where the [A]pplicant raised the claim that it feared that he would become infected if returned to China. Now, no such claim has been made in this case, however, Member Eteuati dealt with the consideration at paragraphs 287 and 298 to 300.

At 287 he indicated that the [A]pplicant claimed that the outbreak of Corona Virus in China also presents another reason why the mandatory cancellation decision should be revoked. The [A]pplicant argued that if he is removed to China he faces the prospect of being infected with Corona Virus, which may cause significant harm to his health possibly leading to his death.

The applicant pointed to the current ban on arrivals from China and he advised that the Department of Foreign Affairs and Trade for Australians not to travel to China and for all Australian (indistinct) to leave China as soon as possible. That being the Member's summary of the applicant's claims in that matter.

At paragraph 298 onwards the Member dealt with that claim as a claim of fear of harm and noted whilst it is accepted that as a general proposition the risk of Corona Virus infection for people in China is much higher than for people in Australia, the number of people who have been infected by Corona Virus in China compared to the greater population itself is relatively small.

He then went on to consider further matters about China. And then in any event given the travel restrictions imposed by the Australian Government on travel from China and its advice that Australians should not travel to China it is doubtful whether it would currently be reasonably practicable to remove the [A]pplicant from Australia to China. This may result in prolonged but not indefinite detention for the applicant until the risk presented by the virus in China subsides.

Now, the Minister's submission here is that Corona Virus COVID-19 may have the effect that the [A]pplicant remains detained for a period of time until she can be - it is practical to remove her. So in one sense the Minister accepts that detention may be prolonged, however it's speculative about how long that will take and how long it will be that - as I'm sure the [T]ribunal is aware, tomorrow matters could change, next week matters could change, in six months matters could change.

The Minister's submission is that COVID-19 has not been raised, well, does not rise to a - does not fit squarely within any of the other considerations within the Direction and should be considered separately as another consideration to consider. And (indistinct) it is accepted that it will have the result that the [A]pplicant may remain detained slightly longer than would normally be the case absent the virus...

...Now, it is the case that whether or not her removal will be practicable, is largely dependent upon international events in respect of the pandemic. However, it cannot be said that the [A]pplicant's removal will never be practicable. Whilst the [A]pplicant is in detention in Australia she will have access to medical services provided by the [R]espondent's (indistinct). And those services in WA health system in the event that she requires more complex care. In the United Kingdom, she will have access to the UK public health system. The [A]pplicant has not identified as a member of an at risk cohort for the virus. The Minister submits that the [A]pplicant would be in a position to establish herself and to maintain a basic living standard in the United Kingdom...

(Emphasis added.)

1. The Tribunal accepts that if it affirms the Reviewable Decision, it is likely that the Applicant will face an additional period of detention before it will be reasonably practicable for her to be removed to the United Kingdom. However, to quote Member Eteuati in FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294, [299] '[t]his may result in prolonged but not indefinite detention for the Applicant until the risk presented by the virus ... subsides'.
2. The Tribunal finds the Applicant has some level of familiarity with the United Kingdom which would assist in her relocation and reintegration there. She also has prospects for employment. However, the Tribunal accepts she would face social, economic and emotional hardship resettling in the United Kingdom and that her mental health may suffer as a result. The Tribunal also accepts that the Applicant may face a prolonged period in detention due to COVID-19 travel restrictions. On balance, having regard to all the circumstances of the Applicant, the Tribunal considers that the extent of impediments to the Applicant if removed weighs moderately against exercising the discretion to cancel the Applicant's visa.

1. The Applicant does not pass the character test under s 501(6) of the Migration Act.
2. The Tribunal has considered whether to exercise its discretion to remit or set aside the decision to cancel the Applicant's visa under s 501(2) of the Migration Act, having regard to the primary and other considerations in Direction No. 79.
3. In relation to the first primary consideration, the Tribunal finds that:
   • (a) The nature and seriousness of the Applicant's conduct weighs strongly in favour of the exercising the discretion to cancel the visa (para 9.1.1 of Direction No. 79).
   • (b) The risk to the Australian community should the Applicant commit further offences also weighs strongly in favour of exercising the discretion to cancel the visa (para 9.1.2 of Direction No. 79).
4. Overall, with respect to the first primary consideration, the Tribunal concludes that the protection of the Australian community (paragraphs 9.1, 9.1.1 and 9.1.2 of Direction No. 79) weighs strongly in favour of exercising the discretion to cancel the visa.
5. The Tribunal has found that the second primary consideration, of the best interests of minor children (paragraph 9.2 of Direction No. 79), weighs against exercising the decision to cancel the visa, however to a lesser degree than would ordinarily be the case.
6. In relation to the other considerations that are applicable:
   • (a) The strength, nature and duration of the Applicant's ties to Australia (paragraph 10.2(1) of Direction No. 79) weigh slightly against the exercising the discretion to cancel the visa.
   • (b) The impediments the Applicant would face if returned to the United Kingdom (paragraph 10.5(1) of Direction No. 79) weighs moderately against exercising the discretion to cancel the visa.
7. The uncertain period of detention that the Applicant would face until the COVID-19 pandemic subsides weighs slightly against exercising the discretion to cancel the visa.
8. The Tribunal has found that the expectations of the Australian community (paragraph 9.3 of Direction No. 79) would be that the Applicant's visa be cancelled. In determining the weight to be applied to this consideration, the Tribunal has considered the relevant primary considerations, including the serious nature of the Applicant's offences and the moderate risk of her re-offending, both of which weigh strongly in favour of exercising the discretion to cancel the visa. The Tribunal has balanced these considerations against those considerations which weigh in the Applicant's favour. Specifically, these are:

the best interests of minor children, the strength, nature and duration of the Applicant's ties to Australia and the hardship the Applicant would face if she were returned to the United Kingdom. Additionally, the Tribunal has considered the amount of time the Applicant may potentially be detained for until she can be returned to the United Kingdom due to COVID-19 related travel restrictions (which weighs slightly in favour of exercising the discretion to cancel the visa). After balancing these considerations, the Tribunal finds that the expectations of the Australian community would nevertheless weigh strongly in favour of exercising the discretion to cancel the visa (paragraph 9.3 of Direction No. 70). 9. The Tribunal finds that the primary considerations of the protection of the Australian community, and the expectations of the Australian community substantially outweigh: * the primary consideration of the best interests of minor children; * the other considerations of the Applicant's strength, nature and duration of ties and the extent of impediments if removed; and * the consideration of the Applicant's detention for an uncertain period of time until she can be removed[162]. 10. Having had regard to all of the relevant primary considerations and relevant other considerations in accordance with Direction No. 79, the Tribunal is of the view that the correct or preferable decision is to exercise the discretion to cancel the visa.

1. The Reviewable Decision dated 5 February 2020 to cancel the Applicant's visa is affirmed. This means that the Applicant's visa remains cancelled.

I certify that the preceding 174 (one hundred and seventy-four) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member

........................[sgd]................................................

[11]Refer to R1, G10-G20 (inclusive), largely duplicated in A2.

[13] The Tribunal is satisfied that the Minister gave the Applicant written notice of its decision in accordance with ss 501G(1) and 501G(2) of the Migration Act in the prescribed manner, noting that: pursuant to reg 2.55(3) of the Migration Regulations 1994 (Cth) (the Regulations), the Minister can give a document by handing it to the person personally; and pursuant to reg 2.55(5) of the Regulations, the person is taken to have received the document when it is handed to the person (see paras [19]-[26] and [42]-[44] below).

[15] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 79: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018) (Direction No. 79).

[16] Witness statement located at R1, G19, page 104 (dated 27 June 2019) and A5 (dated 18 February 2020).

[17] Witness statement located at R1, G19, pages 105-107 (undated).

[18] Witness statement located at R1, G20, pages 111-112 (dated 22 June 2019) and A3 (dated 11 February 2020).

[19] Witness statement located at R1, G20, page 109 (undated).

[20] Witness statement located at R1, G20, page 110 (dated 26 June 2019).

[21] Witness statement located at R1, G19, page 103 (dated 16 June 2019) and A4 (dated 18 February 2020).

[22] Witness statement located at A6 (undated).

[23] Witness statement located at R1, G20, page 108 (dated 18 June 2019).

[24] Witness statement located at R1, G20, page 113 (undated).

[25] Witness statement located at R1, G20, pages 114-115 (dated 3 July 2019).

[26] Alison (alison.com) provides free online courses. According to its website, Alison courses do not provide an externally accredited or recognised qualification (https://alison.com/faqs/certification-and-payments/accreditation/are-alison-courses-recognised-or-accredited).

[27] Asian and Pacific Conference of Correctional Administrators.

[28] Section 501(7) of the Migration Act is concerned with the term of the sentence that has been imposed on a person rather than the term of imprisonment actually served by the person: Seyfarth v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCAFC 105; (2005) 142 FCR 580, 588 [27] (Sundberg, Jacobson and Bennett JJ);

Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; (2010) 183 FCR 113, 142 [114] (Nicholas J, Moore and Rares JJ).

[29] Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203, 223 (Uelese).

[32] Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123; (2014) 225 FCR 482, 500 (Jagroop).

[35] Direction No. 79 (above n 15) para 9(1).

[36] While the Tribunal had gone through this process on a provisional basis at the hearing on 6 April 2020, it was not captured by the recording system or the transcript. Therefore, as a matter of precaution, the Tribunal repeated the entire process on 14 April 2020 to ensure it would be recorded in both the audio recording and the transcript.

[37] Refer to paras [12] and [13] above.

[42] R4. All nine extant charges are returnable in the Drug Court, a specialist program run out of the Magistrates Court. As at 3 April 2020, the Applicant had entered three pleas of guilty in person before the Court, provided three written or endorsed pleas of guilty and was yet to enter pleas in respect of the other three charges.

[43]The Tribunal notes, however, that for the purposes of s 501(7)(d) of the Migration Act, the relevant aggregation is 13 months and 1 day, being the aggregation of the total effective sentence imposed on 18 September 2018 and the head sentence of the suspended imprisonment order imposed on 7 August 2013. Refer to Minister for Immigration and Multicultural and Indigenous Affairs v Hicks [2004] FCAFC 114; (2004) 138 FCR 475 and Minister for Immigration and Multicultural and Indigenous Affairs v Ball (2004) 138 FCR 450. In any event, the Applicant has been sentenced to two separate terms of imprisonment, which when aggregated together exceed 12 months.

[44] Sections 501(6)(a) and 501(7)(d) of the Migration Act (set out at paras [17] and [18] above).

[46] From 18 September 2018 to 17 December 2018. The Applicant was sentenced in September 2018 to six months and one day imprisonment (R2, G9). The Parole Board heard the Applicant's application on 29 November 2018 and granted her release on parole from 17 December 2018, such that her parole period expired at the end of the sentence, being 18 March 2019. The Applicant's parole conditions included to attend for random urinalysis and participate in programs and counselling as directed. See for example, the Applicant's Offender Summary provided in R3, SG2, pages 171 and 174. The Applicant was also in prison between 23 July 2016 and 24 July 2016, when she was arrested on a warrant for failing to appear in the Mandurah Magistrates Court on 5 July 2016. She was granted bail the following day.

[49] At the hearing, the Applicant conceded she did not pass the character test (transcript, page 32 [5]-[25]).

[50] Refer to R1, G10-G20 (inclusive), which is largely duplicated in A2.

[56] Contained within numerous documents referred to in paras [62] and [63] above.

[57] See, for example, R1, paras [23]-[27] and authorities cited within, namely Re Aporo and Minister for Immigration and Citizenship [2008] AATA 629 at [96] (DP Prof Walker); Re Metera and Minister for Immigration and Citizenship [2008] AATA 668 at [59] (DP Prof Walker); Re Passells and Minister for Immigration and Border Protection [2016] AATA 1033 at [42] (SM Walsh); Re Intesir and Minister for Immigration and Border Protection [2017] AATA 503 at [31] (DP Constance); Re QKJY and Minister for Immigration and Border Protection [2017] AATA 820 at [8] (SM Tavoularis); Re Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at [43] (SM Tavoularis); Re HMFZ and Minister for Home Affairs [2018] AATA 3861 at [33] (SM Puplick AM); Re Downing and Minister for Home Affairs [2018] AATA 4592 at [82] and [86] (Member Burford); Re Di Stefano and Minister for Home Affairs [2019] AATA 677 at [72] (SM Dr Evans); Re FTDN and Minister for Home Affairs [2019] AATA 1301 at [100] (Member Burford); Re Hadfield and Minister for Home Affairs [2020] AATA 94 at [40] (SM Dr Evans); Re Gage and Minister for Home Affairs [2020] AATA 326 at [75]- [76] (Member Burford); Re SLNY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 344 at [43] (SM Dr Evans-Bonner); Re Berryman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 421 at [80]- [81] (DP Boyle); and Findlay v State of Western Australia [2007] WASC 61 at [23] (Martin CJ).

[63] Between 15 August 2010 and 17 September 2015. Refer to R3, SG2, pages 374 to 377.

[70] A1, para [36], read with transcript, page 57 [25].

[71] Ms Dalwood's recommendations are listed at R2, G13, page 73.

[72] The Applicant listed her courses completed in jail as 1) AA - Alcohol Awareness; 2) Brief Intervention - Springboard; 3) Deadly Thinking - Mental health workshop run by Rosalee Kickett; 4) Yellow brick road to recovery; 5) Grief recovery; and 6) AOD - Alcohol and Drug and general rehabilitation courses (A1, paragraph 38; refer also to R3, SG1, page 175).

[78] According to Magistrate Benn, R2, G9, page 40.

[83] See, for example: _RQRP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affai_rs [2020] AATA 437 [97]-[98], [106]; WSML and Minister for Home Affairs [2019] AATA 41 [63]-[64]; Robinson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 370 [54]; VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 649

[84] See, for example: FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294 [206]; Trang and Minister for Home Affairs [2019] AATA 4087 [65]-[67].

[88] A1, paras [126], [151], [152] and [171]. The last portion of the final sentence of para [98] was completed by the Applicant orally at hearing as the sentence as it appeared in A1 was incomplete.

[89] The Tribunal notes that the available evidence indicates that the Applicant saw a psychologist on two occasions: 1) 16 January 2018 (G13); and 2) 9 December 2019 (A8).

[93] R2, G13, page 74. Ms Dalwood's report appears to be the only medical evidence before the Tribunal providing an opinion on the Applicant's risk of reoffending.

[96] Transcript, page 65 [10]-[25].

[101] Transcript, page 67 [15]-[25].

[102] Transcript, page 67 [30]-[45].

[116] Direction No. 79 (above n 15) para 9.1.2(2)(a).

[117] Refer to para 90(c) above and related footnotes.

[118] Direction No. 79 (above n 15) para 9.1.2(1).

[119] Direction No. 79 (above n 15) para 9.1.2(2)(b)(i).

[123] Direction No. 79 (above n 15) para 9.1.2(2)(b)(ii).

[131] Transcript, page 79 [40]-[45].

[133] Direction No. 79 (above n 15) para 9.2(3).

[143] Transcript, page 112 [10]-[30].

[144] Direction No. 79 (above n 15) para 6.3(2).

[145] Direction No. 79 (above n 15) para 6.3(3).

[146] Refer to the authorities cited by Member Burford in CKQV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 927, [225]-[232]. While the case of FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 374 ALR 601 (FYBR (FC)) concerns Direction No. 65 and in particular paras 6, 8 and 11.3 of that Direction, the text of the relevant provisions is largely unchanged in Direction No. 79. The Tribunal considers that the Court's consideration of the issue of 'community expectations' is directly applicable to paras 6, 8 and 9.3 of Direction No. 65 which are applicable to applications under Direction No. 79. Further, although the Justices in FYBR (FC) were considering the provisions with respect to visa refusal their comments are, in the Tribunal's view, equally applicable to the cancellation of a visa (though the other considerations and weighing exercise may differ).

[147] Refer to paras [90]-[91] above.

[149] R1, para [44]. The Respondent noted further that the Applicant's responses at R1, G10, page 55 (being her response to the question in her personal circumstances form '[a]re there any other problems you would face if you have to return to your country of citizenship?') should be considered separately or under the impediments to removal consideration.

[151] The Tribunal notes that it appears that the Applicant was out of the country during this period. Refer to para [147] above.

[152] R1, G10 at page 53; R1, G20 at page 109.

[153] A1, para [209]; transcript, page 98 [35].

[154] Refer to paras [12]-[14] above.

[155] Mr Vanmaris gave evidence that, if the Applicant were returned the United Kingdom, realistically, he would not go with her: transcript, page 94 [45] and page 95 [5].

[156] The Applicant's father and his partner live in Adelaide: A1, para [199].

[158] Refer to R1, paras [53]-[61] and related footnotes; transcript, pages 113-114.

[160] Refer to para [101] above; R1, para [53]; transcript, page 113; and R3, SG1, page 331.

[161] Transcript, pages 28-30 and 114.

[162] The Tribunal is of the view that it is unnecessary for present purposes to consider further the Respondent's submission in paragraph 161 above that COVID-19 related travel restrictions do not fit squarely within any of the other considerations within the Direction and should be considered separately.