7. She also provided character references. One was from her older sister and the other from her parents. Her older sister referred to her positive character, that she has never been in trouble with the law and that she is ashamed, embarrassed and sad at her offending. Her parents also referred to her positive character and noted their shock when they heard about her charges as she has always been a responsible human being. They noted that the applicant has told them how regretful she is and how much shame she feels.
8. On 15 March 2023, following a request from the AAT the Australian Border Force provided a Statement of Material Facts (SMF) relating to the applicant's conduct.
9. At the hearing in 2023 the AAT raised with the applicant via s 359AA the following information purportedly from the SMF. The AAT referred to four instances of the applicant "being involved in selling a vehicle after the odometer on the purchased vehicle had been tampered with and attempts were made to sell the vehicle at inflated prices." The AAT raised with the applicant that this indicated she had been engaged in not insignificant criminal and fraudulent conduct and noted that the information indicates that in one of the interviews she indicated she knew the odometers had been altered. It raised with her that this is inconsistent with her claim she was not aware of this and was helping a friend. It raised with her the inconsistency with her statement in response to the NOICC.
10. The applicant responded that she was not sure the odometers were tampered. She said she told the police she only saw that the kilometres were low. She confirmed she did not know the odometers had been tampered.
11. At the recent hearing the Tribunal asked her first about the two convictions. It noted it was only asking her for details about the matters for which she had already been convicted. She said one conviction was for selling a Toyota Kluger with a tampered odometer in 2021 and the second condition related to have a Nissan for sale in April 2022 with an altered odometer. The later was not sold. She said the person she thought was a friend gave her an opportunity to make money if she sold the vehicles, She said he gave her the vehicles and she put them up for sale.
12. The Tribunal raised with her via the process outlined in s 359A that the SMF refers to her as receiving two vehicles for sale that she knew had altered odometers and referred to the two vehicles that related to the convictions. In response she says she takes full responsibility for the criminal convictions. She said she knew when selling or putting up for sale these two vehicles that the odometers had been altered. She said she told the police in April 2022 when selling or attempting to sell the above vehicles that the odometers had been tampered with.
13. The Tribunal then said it wanted to talk to her about the two additional vehicles referred to in the SMF. The SMF referred to two additional vehicles being seized with altered odometers. It then raised with her the following.

Before you answer that question, I must inform you that you are entitled to the privilege against self-incrimination. What that means is that you are not obliged to answer a question if the answer to the question tends to prove that you were guilty of a criminal offence or liable to pay a penalty. You may only refuse to answer the question on that ground. You may answer the question - even though the answer tends to show that you have been guilty of a criminal offence or liable to penalty - but you do not have to.

If you wish to claim the privilege, it is for me to decide whether you may validly claim it.

1. The applicant said she did not want to answer any questions about these two vehicles. The Tribunal accepted this response. It outlined to the applicant that it places no weight on the material referred to in the SMF regarding the two additional vehicles in considering whether to exercise its power to cancel the visa. It has outlined its reasoning below.
2. The Tribunal then outlined and discussed with her the discretionary criteria. It specifically referred to the best interests of her child and that that this is a primary consideration. It asked her whether there was any other relevant matter the Tribunal should consider or whether she had anything to add. It raised a number of concerns. Where relevant her evidence and the responses to the concerns raised are considered below.

The purpose of the applicant's travel and stay in Australia, whether the applicant has a compelling need to travel or remain in Australia

1. The applicant was first granted a Subclass 500 Student visa as the primary applicant on 12 March 2021 which was originally valid to 21 June 2023 until it was cancelled on 22 November 2022. While holding the visa she successfully completed a Diploma of Leadership and Management studied from 26 April 2021 to 22 April 2022. She was then enrolled to study the Advanced Diploma of Leadership and Management from 25 April 2022 to 21 April 2023 but enrolment was cancelled due to the convictions and cancellation of her visa. It accepts her evidence she completed five subjects and that she was enrolled, studying and achieving course progress until her visa was cancelled. The Tribunal accepts her purpose of staying in Australia while holding the Student visa until it was cancelled was to study and achieve course progress. It gives this consideration some weight against cancelling the visa.
2. As to whether there is a compelling need for her to stay in Australia, she referred to wishing to stay to finish the Advanced Diploma of Leadership and Management as this will allow her to obtain a better job on return to Estonia. While she said there were equivalent courses in Estonia that offered the same employment outcomes, she was concerned she would have to start again and forgo the $4,000 she has already paid towards the Advanced Diploma of Leadership and Management. While it accepts she will have to start the course again and forego the $4,000 as well as the five units studied, the Tribunal does not find this represents a compelling need to remain in Australia.
3. She also referred to her de facto partner being in Australia and that he is the main income earner for their family. She said he is on a Bridging visa, with their daughter part of his application. She said she is not studying. She said later in the hearing if her visa is cancelled, her partner and her daughter would return to Estonia. She said he is working as a carpenter in Australia and while there is seasonal work in Estonia, employment is more difficult. She also referred to the difficulties transporting their dog. She said her parents have purchased them an apartment. While there would be some adjustment difficulties the Tribunal does not find these circumstances represent a compelling need to remain in Australia.
4. It has considered the information in the NOICC as to the difficulties she would face as she was pregnant at the time. The evidence indicates she has now had the child.
5. It has considered the difficulties her partner would face being unable to study. However, it notes her evidence is that he is not studying. It is of the view he can study on return to Estonia as she said their quality is comparable.
6. The Tribunal does not accept that any of the circumstances she has raised reflect a compelling need to remain in Australia. It gives this neutral weight.

1. The Tribunal acknowledges that there is no other evidence the applicant did not comply with any other conditions on his Student visa.
2. The Tribunal gives this factor neutral weight.

Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

1. At hearing the applicant referred to wanting to complete the Advanced Diploma of Leadership and Management. She referred to forgoing the $4,000 she has spent on the course and the five units passed if her visa remains cancelled and she returns to Estonia. While it accepts her evidence that she can study a similar course in Estonia and the quality and employment outcomes are similar, as she will have to forgo her previous study and money spent it gives this circumstance some weight against cancelling the visa.
2. She referred to the difficulties moving countries if the visa remains cancelled. She said her partner would return with her. She said her daughter would return with her. She also referred to the emotional hardship, as her daughter is settled at childcare and her partner will need to find employment. She said it would take time to find childcare and new employment. She referred to adjustment difficulties for them all moving countries as well as their dog. She said while her parents are in Estonia they both work full time. She said while her parents have purchased an apartment for her it will take time to fix. The Tribunal accepts if the visa remains cancelled, the applicant, her partner and child will face these difficulties. However, as they have only ever held temporary visas, and her partner has only applied for a temporary visa; such difficulties would be faced whether the visa was cancelled or not at some time in the future.
3. It has also considered that her partner has applied for a Student visa in a separate application. At hearing she said her partner is not studying. She said he would return with her if the visa remains cancelled. As the courses are similar in quality and employment prospects in Estonia as in Australia, the Tribunal is of the view he can study on return to Estonia if he wishes to accompany the applicant if the visa remains cancelled. The Tribunal gives this a small about of weight against cancelling the visa.
4. Overall, the Tribunal gives this consideration some weight against cancelling the visa.

Circumstances in which the ground of cancellation arose

1. The ground for cancellation arose when the applicant was convicted of two offences involving two cars, She was convicted of the following offences.
   • Gains Benefit by Fraud: Criminal Code (WA); 409(1)(c)(B) - fine being $7,500.
   • (Attt) Gains Benefit by Fraud: Criminal Code (WA); 409(1)(c) - fine being $7,500.
2. The evidence from the applicant indicates these convictions relate to two vehicles. The first where a vehicle was sold by the applicant where the odometer was altered or tampered with to obtain a better price. The second vehicle she attempted to sell. It was not sold. It also had an altered odometer. The Tribunal accepts the applicant's evidence at the recent hearing that while she did not tamper with the odometers she knew when selling the first and attempting to sell the second vehicle that this had occurred to both vehicles. While her evidence at hearing is different to that provided in the response to the NOICC, it places more weight on her oral evidence provided at the recent hearing.
3. It accepts her evidence and the evidence of the character witnesses that she deeply regrets committing illegal acts, it is out of character for her and she takes full responsibility. It accepts the likelihood of her reoffending as extremely low.
4. Notwithstanding, the Tribunal considers the conduct engaged in by the applicant, which led to the convictions, was serious. She was residing in Australia as the holder of a temporary visa and her evidence is she was cognisant of the fact the odometers were tampered and would have known it was illegal. It was within her control not to engage in the offending conduct. The Tribunal considers that the circumstances in which the ground of cancellation arose weigh in favour of the exercise of the Tribunal's discretion to cancel the visa.
5. In making this finding, it places no weight on the information in the SMF regarding two other vehicles seized with altered odometers. No charges were laid with regard to these vehicles and there is no evidence in the SMF that she attempted to sell these vehicles or was aware these vehicles had altered odometers.

Past and present behaviour of the visa holder toward the Department

1. There is no evidence that the applicant has not been co-operative in her dealings with the Department in the past.
2. The Tribunal gives this consideration neutral weight.

Whether there would be any consequential cancellations under s 140

1. While the applicant is in a de facto relationship and has a two year old daughter they are not secondary applicants in the Student visa the subject of the cancellation by the delegate. There is therefore no evidence that any other person's visa would or may be cancelled if the applicant's visa were cancelled. The Tribunal gives this factor neutral weight.

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister's intervention

1. There are mandatory consequences in the case of the cancellation of the visa, including detention and removal from Australia, as well as difficulties in obtaining any further visas.
2. If the visa remains cancelled the applicant would hold a Bridging visa for a short period of time, usually 35 days, to allow her to finalise her affairs before returning to Estonia. It accepts that she is waiting for the Estonian authorities to issue her daughter a passport. It accepts the Department can extend the Bridging visa and would likely do so for her to obtain the documentation for her daughter to depart with her if the visa remains cancelled.
3. If the applicant remained in Australia without a valid visa, she would be residing unlawfully and liable to detention and removal. The applicant, however, provided oral evidence to the Tribunal that she intended to comply with any lawful direction to depart Australia, and therefore the likelihood of the applicant being detained is remote.
4. Under s 48, the cancellation may also restrict the applicant's future ability to make a valid application for any visa other than those prescribed in reg 2.12 while onshore. Under public interest criterion (PIC) 4013 she also may in some cases not be granted a further visa for three years from the date of cancellation of the delegate's decision.
5. There is no restriction on the visa she can apply for once she leaves Australia.
6. The evidence indicates the applicant's partner has applied for Student visa. The legal consequence of the cancellation is that she would be barred from applying onshore as a member of the family unit of her partner. However, at hearing she indicated if her visa remains cancelled, her partner will return with her. She also said her husband is not studying which is a core purpose for the grant of a Student visa. Notwithstanding, on the basis of the legal consequences, the Tribunal gives this low weight against cancelling the visa.

Whether Australia's international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

1. When asked by the Tribunal whether she had any fear of returning to Estonia; she said she fears the war in Ukraine will spill over into Estonia. She said Estonia is next to Russia and used to be part of Russia. While these circumstances do not appear to breach the non-refoulement requirement or similar provisions, the Tribunal is of the view that her claims can be fully considered via a protection visa application if she fears the relevant harm on return. The Tribunal is of the view that this is the appropriate mechanism for assessing her claims if she fears return to Estonia.
2. While her daughter is not part of the application the Tribunal has considered her best interests as a primary consideration. The evidence indicates the applicant's daughter was born in Australia in 2023. She does not have Australian permanent residence or citizenship. Both her parents are of Estonian nationality and they are awaiting documentation from the Estonian authorities for her to travel. She attends childcare. The applicant said she would return with her if the Tribunal affirms the Department decision. She said her partner and the father of her child would also return to Estonia were the visa to remain cancelled.
3. The applicant's daughter is only two years of age. It accepts there will be some adjustment difficulties for her in having to leave the childcare centre she attends where she has made some friends and move to Estonia. It accepts it may take a short period for her to find further childcare in Estonia. The Tribunal considers that the applicant's daughter is very young and as both her parents will travel with her, she would overcome the change quickly and adjust to a new country and childcare. The child's extended family also reside in Estonia. Considering what decision would be in the best interest of the applicant's daughter, the Tribunal accepts on the totality of the evidence that there would be some very minor adjustment difficulties for her but that as both her parents would travel with her it would be negligible. It gives this neutral weight.
4. There is also no information before the Tribunal that a decision to cancel the applicant's visa would be in contravention of the Convention Against Torture.
5. The Tribunal gives this consideration neutral weight.

1. When asked she initially said that there is no other relevant matter for the Tribunal to consider. The applicant the applicant referred to her dog and the cost of transport to Estonia. The Tribunal gives this s small amount of weight against cancelling the visa.
2. The Tribunal has carefully considered all the applicant's circumstances individually and cumulatively. The most significant fact in favour of cancellation is the circumstances which led to her being convicted of criminal offences. It accepts she is remorseful, however has given this significant weight in favour of cancelling the visa. The Tribunal accepts that her purpose of being in Australia was to study but notes she can study the same course in Estonia. It accepts there will be hardship for her as she will forego the money spent studying the Advance Diploma of Leadership and Management and will not be given credit for the five units completed. It has given this some weight against cancelling the visa. It accepts there will be hardship for her and her partner adjusting to returning to Estonia and has given this some weight against cancelling the visa. It has considered the cost of returning their dog and the legal consequences of the cancellation. It has considered the best interests of the applicant's child as a primary consideration but considering her age, and that both her parents would travel with her, it gives this neutral weight.
3. Overall, in balancing the totality of the circumstances and weight given, the Tribunal considered that the visa should be cancelled.

1. The Tribunal affirms the decision to cancel the applicant's Subclass 500 (Student) visa.