Consideration
20 The central question posed by ground 1 that was the subject of debate during the course of oral submissions is whether the tribunal was required specifically to have regard to the fact that it was almost certain that a decision not to revoke the cancellation of the applicant's visa would mean that she would never see her elderly and ill parents again and that her parents would die without her being able to be present, whether those considerations were implicitly considered, and whether implicit consideration is sufficient.
21 In my view, it was not necessary for the tribunal to spell out in the detail contended for by the applicant the self-evident consequence of the tribunal's acceptance of the following facts, namely that:
the applicant's parents are both elderly and in declining health;
the applicant's mother is legally blind and has survived three bouts of cancer;
the applicant could play an important role in caring for her mother and her father as they got older;
the mother would be "heartbroken" if her daughter were removed from Australia; and
deportation would mean that the applicant would be prevented from caring for her parents as their health continued to decline.
22 It seems to me, with respect, that it goes without it being needed to be said in terms, that the tribunal therefore must be taken to have accepted that, as a consequence, the applicant would never see her parents again (because they would pass away before she could do so).
23 As to the other matters, namely that the applicant would be excluded from being present in their last years, excluded from caring for them as well them being prevented from receiving her care as a daughter and as a nurse and a person with experience working with the elderly, these matters were explicitly dealt with. See, by way of example, the tribunal's reasons at [37] (where the Tribunal accepted that the applicant could provide "the support they required given their old age and poor health and that her skills as a nurse and working with the elderly would be particularly helpful in that context"); and at [69] ("The non-revocation of the mandatory cancellation of [the applicant's] visa would impact on [her parents] significantly both in terms of the stress it would cause them and also because it would prevent her from caring for them as their health continues to decline").
24 It is also contended that the tribunal did not consider the fact that "[the applicant] may never see other members of her closely knit family again, including her sisters, daughter, grandchild, nieces, nephews and great niece and nephew who live in Australia". But that is not so. The tribunal referred specifically to the testimony of the applicant's sister and daughter ([65]-[66]), and to the fact that the applicant is a member of a relatively close and loving family and is a valued member of that family ([68]). The tribunal also acknowledged that it would be challenging for the applicant to return to the UK without any close family ([76]).
25 The tribunal considered therefore both the effect of deportation on the applicant's family ([72]), and on her.
26 It is next submitted that the tribunal did not have regard to the "grave distress" that would be suffered by the applicant, her parents and her family. I am unsure about the provenance of, or the particular significance said to be attached to, that phrase, but the tribunal not only referred specifically to the "stress" that deportation of the applicant would cause the parents ([69]), but it recognised the "heartbreak" that the applicant's mother would suffer. And it was precisely because of those findings that the tribunal concluded that the impact on the applicant's family and her ties to the community "weigh[ed] heavily" in favour of revoking the mandatory cancellation ([72]).
27 As to the submission that the tribunal did not consider, in assessing the risk of the applicant re-offending, the combined effect of her present age, her release plans, and the length of time she had been free of serious offending after her release in 2002, that is simply not so. The tribunal considered carefully the risk of the applicant re-offending at [25]-[44]. In particular, the tribunal considered the reasons for the most recent offending ([26]), and the link between the applicant's offending and the trauma she had experienced ([27]-[31]).
28 The tribunal then considered the steps that the applicant had taken to understand her offending ([33]-[36]), the applicant's relapse prevention plan, and the weaknesses in that plan (which was similar to a plan she had had after leaving prison in 2002) ([38]-[41]).
29 The tribunal summarised its main findings as follows:
42. In assessing the level of risk of reoffending the Tribunal accepts that:
(a) the applicant has demonstrated a level of remorse and insight into her offending. This is qualified to a degree by the applicant seeking to downplay her level of responsibility and culpability for her offending at various times during the course of her evidence. There is no question in the mind of the Tribunal that the applicant regrets her offending and the pain it has caused her personally and also her family. There is also no question that the applicant considers the ongoing threat of deportation to be a significant incentive to avoid reoffending.
(b) the applicant is a fundamentally decent person who has engaged at various times in her life in serious drug use that can fairly be described as addiction and that, as a consequence of that drug use, has engaged in serious offending. The Tribunal also accepts that the applicant's use of drugs is in large part emotionally driven, either as a consequence of past trauma, troubled relationships, or other emotional stresses. It has also been associated with poor choices in respect of partners and friendship groups. However, as the respondent contended, the applicant is likely to be confronted with similar circumstances again in the future and that this presents a genuine risk in terms of her potential to relapse back into serious drug use.
(c) the applicant has previously made efforts to better understand her offending and drug use and to develop tools and skills to reduce the potential for relapse in the future. This has included both various intervention programs and also counselling. However, the Tribunal was concerned that the arrangements the applicant had in place to ensure this type of support was available on her release did not appear well developed.
(d) the applicant will have the benefit of other support structures to ensure the prospect of relapse is minimised including her loving family, friends, her church and associated religious support networks. However, the Tribunal accepts the respondent's contentions that these same support structures were available to the applicant on her previous release from prison and yet despite them she relapsed back into drug use and offending.
(e) the applicant has behaved well while in custody and had significant period of abstinence while in the community previously. However, despite this there can be no denying that the applicant has been a repeat offender in the past and that her offending has increased in seriousness over time.
(f) notwithstanding the applicant's stated determination to not reoffend and let her family down again and also acknowledging the very significant incentive she feels to not reoffend given the overhanging threat of future deportation, the applicant's current resolve has not yet been tested in the community.
43. Of particular concern to the Tribunal in assessing the level of risk was the applicant's stated intention to return to the coastal city in Queensland to live with her parents. While the Tribunal accepts the applicant's stated motive as being the obligation she feels to be able to care for her ageing parents, the applicant herself has acknowledged the importance of her avoiding old social networks associated with her previous drug use many of whom are located in and around the coastal city in Queensland in preventing relapse back into drug use. The applicant's father also acknowledged that there were risks associated with the applicant's proposed return to the coastal city in Queensland although he told the Tribunal that he believed the applicant's interests would be best served by living with her parents rather than living by herself. The reports from both Associate Professor F and Ms P also noted risks associated with the applicant's potential exposure to old social networks involved in drug use.
30 As to the other points that the applicant says the Tribunal did not take into account - the applicant's age, her prison release plan, and the time since which she has not offended - again, it did. As the Minister submitted:
39. Applicant's age: First, the AAT implicitly rejected the Applicant's age as a significant factor to her re-offending. To the contrary, the psychologists stated that the risk of reoffending was linked to the Applicant's ability to avoid drug networks ([43]; [41]). Further, the Applicant's criminal history suggested drug-related offending (albeit of a less serious nature) in 2007 and 2015, between her release in 2002 after her earlier trafficking conviction and her conviction in 2017 for trafficking. The AAT referred to this other offending, and the Applicant's attempt to downplay its significance, ([22]-[23]).
40. Release plan: Second, the AAT expressly considered the Applicant's relapse prevention plan. However, the Applicant conceded that this plan was similar to the plan she had after her release in 2002, when she had relapsed into reoffending. The Applicant also conceded that an important part of this plan was avoiding old networks ([38]). The AAT summarised the relevant psychiatric comments on this plan at [39]-[41], and stated that it was of "particular concern" that the Applicant was intending to return to the same coastal city in Queensland where her old social networks are located ([43]).
41. Period without serious offending: Third, the AAT expressly considered the Applicant's period without serious offending, referring to a "significant period of abstinence". However, the AAT found that the Applicant was a repeat offender in the past and her offending has increased in seriousness over time (42). As noted, the Applicant was convicted for less serious drug-related offending in 2007 and 2015.
42. The Applicant weighed up all the Applicant's circumstances at [44]. There is no failure to consider these factors, either individually or in combination.
(Court book references omitted).
31 Ground 2 is that the Tribunal's decision was unreasonable. There is no substance to this ground. The tribunal found that the protection of the Australian community (a primary consideration) should weigh "very heavily" in favour of not revoking the cancellation decision ([46]). That finding, in itself, would be sufficient to base a conclusion that the cancellation decision should not be revoked. The tribunal also found that the expectations of the community (another primary consideration) weighed in favour of not revoking the cancellation decision ([61]).
32 On the other hand, the impact on the applicant's family "weigh[ed] heavily" in favour of revoking the mandatory cancellation ([72]). The extent of impediments weighed "slightly" in favour of revocation ([77]).
33 There is no error demonstrated in that process of reasoning and weighing matters in the balance, fine though the balance was. There is a clear, intelligible justification for the tribunal's decision.
34 The application must therefore be dismissed, with costs.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.