Opelu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4222 (9 December 2022)

Last Updated: 9 December 2022

Opelu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4222 (9 December 2022)

Division: GENERAL DIVISION

File Number(s): 2022/7676

Re: Aiupu Opelu

APPLICANT

And Minister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal: Mr S. Webb, Member

Date: 9 December 2022

Place: Canberra

The 15 September 2022 decision of the Minister’s delegate is set aside and in substitution, the Tribunal revokes the cancellation of Ms Opelu’s Class TY Subclass 444 Special Category (Temporary) visa.

..............[sgd].................
Mr S. Webb, Member

Catchwords

MIGRATION – mandatory cancellation of visa – representations – decision not to revoke cancellation – substantial criminal record – visa applicant fails character test – consideration whether another reason for revocation – Ministerial Direction No. 90 – primary and other relevant considerations – protection of Australian community from criminal or other serious conduct – family violence – best interests of minor children – expectations of the Australian community – extent of impediments if removed – links to the Australian community – balance of considerations weigh for/against revocation – decision set aside and substituted

Legislation

Crimes Act 1914 (Cth), ss 85ZR

Migration Act 1958 (Cth), ss 500, 501, 501CA

Youth Justice Act 1992 (Qld), ss 148, 184

Cases

FYBR v Minister for Home Affairs [2019] FCAFC 185

Healey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2002] FCAFC 188

The Applicant and The Regulator [2019] AATA 4683

Thornton v Minister Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23

Secondary Materials

Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).

REASONS FOR DECISION

Mr S. Webb, Member

9 December 2022

1. Aiupu Opelu^[1] is a citizen of New Zealand who first arrived in Australia in 2008. She was issued a Class TY Subclass 444 Special Category (Temporary) visa (Visa). Ms Opelu committed a number of criminal offences. She was sentenced to a 4-year term of imprisonment. Her Visa was cancelled under s 501(3A) of the Migration Act 1958 (Act) (cancellation decision). Ms Opelu made representations to then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister). A delegate of the Minister decided not to revoke the cancellation decision. Ms Opelu applied for review of this decision by the Tribunal.

BACKGROUND

2. The following background facts are established by the documentary and oral evidence before the Tribunal.
3. In 1996, Ms Opelu was born in Samoa. In June 2014, she reached adulthood.
4. Much of her early life was spent in New Zealand. She holds New Zealand citizenship.
5. She asserts, and I accept, she was subjected to sexual and domestic violence abuse as a child.^[2] She came to the attention of child safety authorities in New Zealand and was temporarily removed from her mother’s care.
6. At the age of 11, on 17 February 2008, she arrived in Australia in the company of her mother, brother and sister.
7. She asserts, and I accept, she was subjected to further violent abuse and physical discipline by her family members. Her relationship with her immediate family broke down. She ran away from home on repeated occasions and came to the attention of child support services and police.
8. From in or about 2010 until 2012, at various times, Ms Opelu was homeless and impecunious. As a New Zealand citizen child without parental authority, she was unable to access social security payments. In this period, she lived under a bridge for a time and stayed with friends and acquaintances. With the exception of her elder brother, Faigu Opelu (Mr Opelu), with whom she had contact sporadically from 2013, she had no contact with her mother and other family members for several years.
9. Ms Opelu engaged in substance abuse from a young age, sniffing glue. In the period from 2013 to 2017 her substance abuse expanded to alcohol and illicit drugs, including crystal methylamphetamine (ICE), crack and cannabis.
10. In 2013, Ms Opelu became involved with members of the Forever House Church, including Henry and Priscilla Herbert. Ms Opelu refers to Mr and Mrs Herbert as her foster parents. Mr and Mrs Herbert share faith and cultural connections with Ms Opelu and they have provided her with significant support.
11. Ms Opelu’s first child, “AA”, was born in June 2013, when she was 16 years old. During her pregnancy, Ms Opelu resided in the house of a friend’s mother, Joan-Lee Christian. AA’s father has not been identified in these proceedings. There is no evidence the father’s identity is known or that he had any involvement in AA’s care.
12. There is a history of child safety concerns and protection orders in respect of AA.^[3] From 2014 to January 2017, on grounds of alleged abuse and neglect, orders were made removing AA from Ms Opelu’s care. During this period, AA was placed in the care of Mr and Mrs Herbert.
13. Ms Opelu contests some of the factual assertions recorded in documents produced by the Child Safety Authority of Queensland. She denies ever giving AA a ‘black eye’ and continually verbally abusing AA. She also denies she deliberately burnt AA with a hair straightener when he was approximately one year old. She maintains AA picked up the hair straightener and dropped it against his leg, causing the burn. This, she asserts, was confirmed by the treating doctor at the hospital where they sought treatment. Nevertheless, Ms Opelu accepts the other asserted facts recorded in the relevant Child Safety Authority documents, including that AA required emergency treatment in intensive care after being found floating face-down in a pool in 2014.
14. AA was returned to Ms Opelu’s care in or about January 2017. In November 2017 Ms Opelu was verbally abusive to AA and in December 2017, she assaulted AA causing bodily harm. She was arrested, charged and convicted of this domestic violence offence. On 3 June 2019, Ms Opelu was sentenced to a 6 month term of imprisonment to be served by way of an Intensive Correction Order (ICO).^[4] As will appear, Ms Opelu was subsequently convicted of breaching the ICO.
15. On 26 February 2018, application was made for a child protection order in relation to AA who was placed in the care of Mr and Mrs Herbert. ^[5] On 14 November 2018 the protection order was granted from 11 September 2018 to 10 September 2020.^[6] Subsequently, in 2020, a long-term guardianship order was made,^[7] in consequence of which AA is under the care and custody of Mr Opelu, until he turns 18. The order remains in effect.
16. In October 2018, Ms Opelu gave birth to twins, “AB” and “AC” (twins). Ms Opelu gave evidence, which I accept, she was in a relationship with the father of the twins for 6 years, but the relationship was affected by domestic violence and it broke down completely prior to the birth of the twins. In 2017 and 2019, Protection Orders were made against Ms Opelu for the protection of the father of the twins, his son (by a different mother) and AA.^[8]
17. The father of the twins did not give evidence in these proceedings.
18. For a time in 2018 and 2019, following the birth of AB and AC, Ms Opelu resided with Mr Opelu and his family. This did not last and she subsequently stayed with a friend and with Mr and Mrs Herbert.
19. In the latter part of September 2019, Ms Opelu placed the twins in the care of Claudina Robinson, their paternal grandmother. By her own account, she then resorted to use of illicit drugs and alcohol and “went on a bender”.
20. On 18 and 28 October 2019, Ms Opelu committed serious offences against a female victim. These include invasion of the woman’s home while in armed company, and violent assault of the woman occasioning actual bodily harm.
21. On 6 November 2019, Ms Opelu was arrested on charges relating to the offences on 18 and 28 October 2019. She was remanded in custody. On 4 December 2020, she was sentenced to a 4-year term of imprisonment with account taken of time served from 6 November 2019. On 5 January 2022, she was released on parole and immediately taken into immigration detention.
22. On 30 June 2021, Ms Opelu was notified her Visa had been cancelled under s 501(3A) of the Migration Act 1958 (Migration Act) as the Minister was satisfied she did not pass the character test set out in s 501(6) and (7) of that Act.^[9] At the time, she was serving a custodial sentence of more than 12 months duration. She was invited to make representations to the Minister within 28 days, seeking revocation of the decision to cancel her Visa.
23. On 5 and 8 July 2021, Ms Opelu made representations to the Minister.^[10] On 12 August 2021, Ms Opelu’s advocate provided the Minister with further materials and submissions.^[11]
24. On 15 September 2022, a delegate of the Minister decided Ms Opelu failed the character test and there was no other reason to revoke the decision to cancel her Visa.^[12]
25. On 19 September 2022, Ms Opelu applied to the Tribunal for review of the delegate’s decision.^[13]

Criminal conduct

26. Ms Opelu’s history of offending conduct commenced when she was a child. There are questions about the relevance of her offending conduct as a child and whether the Tribunal should have regard to offences where no conviction was recorded.
27. The relevance of unrecorded convictions of a minor was dealt with in Thornton v Minister Immigration, Citizenship, Migrant Services and Multicultural Affairs (Thornton).^[14] The Full Court concluded a conviction falling within the terms of s 85ZR(2) of the Crimes Act 1914 (Cth) (Crimes Act) is an irrelevant consideration when dealing with matters under s 501CA(4) of the Migration Act.^[15] I understand that decision is subject of an appeal in the High Court of Australia which has not yet been determined. In consequence of the 84-day limit on making a decision in this review under s 500(6L) of the Migration Act, there is no capacity to delay proceedings pending resolution of the application in the High Court. Presently, there is no dispute the Tribunal is bound by the Full Court’s decision insofar as it is relevantly applicable. In oral submissions, applying Thornton, the Minister accepted the Tribunal should not consider as relevant any unrecorded convictions in respect of offences Ms Opelu committed as a minor. I agree.
28. By operation of s 148 and 184 of the Youth Justice Act 1992 (Qld) (Youth Justice Act) and s 85ZR(2) of the Crimes Act, Ms Opelu must be taken to have never been found guilty of an offence committed as a minor where no conviction is recorded. There is no authority or requirement for disclosure of any such conviction. Applying Thornton, such convictions are not relevant considerations in the matters now before the Tribunal and the Tribunal is not authorised to have regard to them.
29. This notwithstanding, without impermissibly considering factual circumstances which may lead to disclosure of any offences Ms Opelu committed as a minor for which no convictions are recorded,^[16] aspects of her conduct as a minor and the factual circumstances of activities in which she engaged may nevertheless be relevant matters to consider for the purposes of s 501CA(4) of the Migration Act. In the circumstances of this case, in which there is no controversy Ms Opelu fails the character test set out in s 501(6) and (7), the question of relevance arises in the context of determining if there is another reason to revoke the decision to cancel her Visa, having regard to Direction 90 issued by the Minister under s 499(2A), namely Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction).
30. I note under s 85ZM of the Crimes Act, the word conviction is defined to include where a person has been charged with and found guilty of an offence but discharged without conviction. By operation of s 85ZV, subject to s 85ZY, a conviction is taken to be spent once the waiting period set out in s 85ZL has elapsed without the person being convicted of a further offence. The waiting period for conviction as a minor is 5 years and for an adult is 10 years. The waiting period in respect of Ms Opelu’s convictions as an adult is not yet over and none of her convictions can be treated as spent.
31. Noting Chowdhury J’s summation of Ms Opelu’s criminal history in his 4 December 2020 sentencing remarks,^[17] Ms Opelu’s criminal conduct as an adult, since June 2014, is set out in the criminal history Check Result Report of the Australian Criminal Intelligence Commission.^[18] This includes the following offences, convictions and penalties:

    (a) 2 failure to appear convictions in 2015 for which fines were imposed;^[19]

    (b) 1 assault occasioning actual bodily harm offence in 2015 with no conviction recorded and a 100 hour community service order imposed with an 18 month probationary period;^[20]

    (c) 3 breach of bail convictions and 1 breach of order conviction in 2018 with sentence of 21 days imprisonment fully suspended;^[21]

    (d) 1 breach of bail conviction in 2019 with sentence of 1 month imprisonment suspended;^[22]

    (e) on 3 June 2019, 1 assault occasioning actual bodily harm (domestic violence) offence on 18 November 2017^[23] with sentence of a 6 month term of imprisonment to be served by way of an intensive correction order;^[24]

    (f) 2 further breach of bail convictions and 1 breach of intensive correction order conviction in 2019, without further penalty;^[25]

    (g) 1 breach of intensive correction order conviction in 2020 with a 5 month term of imprisonment sentence imposed;^[26] and

    (h) on 4 December 2020, convictions with imprisonment sentences to be served concurrently in respect of:

    1. wilful damage on 28 October 2019 – sentence of a 6 month term of imprisonment;
    2. burglary and commit indictable offence on 18 October 2019;
    3. assaults occasioning actual bodily harm on 28 October 2019 – sentence of a 2 year term of imprisonment;
    4. armed robbery in company on 20 October 2019 – sentence of a 3 year term of imprisonment; and
    5. enter dwelling with intent whilst armed in company on 28 October 2019 – sentence of a 4 year term of imprisonment.^[27]

32. Ms Opelu entered guilty pleas in respect of these offences.
33. Ms Opelu was held in custody from 6 November 2019 until she was released on parole on 5 January 2022, whereupon she was taken into immigration detention, where she presently remains.

ISSUES

34. The issues for decision in this review are:

    (a) whether the discretion conferred by s 501CA(4) to revoke the decision to cancel Ms Opelu’s Visa is enlivened; and if so

    (b) whether it should be exercised.

35. The discretion to revoke is enlivened only where the Minister (or presently the Tribunal) is satisfied:

    (a) Ms Opelu passes the character test set out in s 501(6) of the Migration Act; or, if not,

    (b) there is another reason to revoke the cancellation of her Visa.

36. When deciding these matters, Direction 90 must be complied with.
37. Direction 90 sets out Objectives in paragraph 5.1. Applicable principles are set out in paragraph 5.2:

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

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

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

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

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

38. Direction 90 sets out the following instructions and guidance:

    6. Exercising discretion

    Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

    7. Taking the relevant considerations into account

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

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

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

    8. Primary considerations

    In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:

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

    (2) whether the conduct engaged in constituted family violence;

    (3) the best interests of minor children in Australia;

    (4) expectations of the Australian community.

    ...

    9. (1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

    (a) international non-refoulement obligations;

    (b) extent of impediments if removed;

    (c) impact on victims;

    (d) links to the Australian community, including:

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

    (ii) impact on Australian business interests

Character test

39. Ms Opelu does not pass the character test under s 501(6)(a) as she has a substantial criminal record. This term is defined in s 501(7) to include, under s 501(7)(c), the person has been sentenced to a term of imprisonment of 12 months or more.

Another reason

40. When deciding if there is another reason to revoke the decision to cancel Ms Opelu’s Visa, primary and other considerations must be taken into account where relevant in the specific circumstances of her case.
41. Ms Opelu asserts during the period she has been in custody since December 2019, she has reformed her attitudes and turned her life around. She relies on matters set out in her Statement of Facts, Issues and Contentions, as well as in written and oral submissions made on her behalf. In her submission, she poses no real risk of causing further harm to the Australian community and the best interests of her children are not served by refusing to revoke the decision to cancel her Visa. She asserts her family and community supports are in Australia and she will face impediments if she is returned to New Zealand. Ms Opelu expressed deep remorse for her past conduct and contends she has positively and successfully engaged in rehabilitation to the extent she has been abstinent from substance abuse since November 2019 and she has gained insight into the causes of her offending conduct, as well as skills and strategies to assist her with parenting, coping with stress and managing anger. In her submission, the decision to cancel her Visa should be revoked.
42. The Minister asserts this cannot be accepted as Ms Opelu poses an unacceptable risk of harm to members of the Australian community. The Minister relies on matters set out in the Statement of Facts, Issues and Contentions filed on 9 November 2022 and oral submissions made in the hearing. It is the Minister’s submission, when the considerations in Direction 90 are properly weighed, primary considerations relating to protection of the Australian community from harm, family violence and the expectations of the Australian community weigh heavily against revoking the decision to cancel Ms Opelu’s Visa. The Minister argues the seriousness of Ms Opelu’s conduct and the trend of increasing seriousness of her offences weigh heavily in the balance of relevant considerations. Ms Opelu’s propensity to violence and her record of substance abuse are such that there is a significant risk she may relapse and commit further offences should she be released into the community. Ms Opelu’s efforts at rehabilitation have not been tested in an uncontrolled environment, so the argument goes, and these are not sufficient to offset this risk. The Minister contends the best interests of the children are served by retaining the stability of present care arrangements, noting Ms Opelu is able to participate in relations with her children remotely, using telephone and social media. This will not change, the Minister asserts, should Ms Opelu be returned to New Zealand. Consequently, the Minister asserts the decision not to revoke the cancellation of Ms Opelu’s Visa should be affirmed.

Protection of the Australian community from criminal or other serious conduct

43. This consideration, set out in paragraph 8.1 of Direction 90, is framed by the Government’s commitment to protect the Australian community from harm as a result of criminal or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that remaining in Australia is a privilege conferred on non-citizens in the expectation they will be law-abiding and they will not cause or threaten harm to individuals or the Australian community. It is also necessary to consider:

    (a) the nature and seriousness of the non-citizen’s conduct to date (applying paragraph 8.1.1); and

    (b) the risk to the Australian community should the non-citizen commit further offences or engage in serious conduct (applying paragraph 8.1.2).

Nature and seriousness of non-citizen’s conduct

44. There is no doubt about the seriousness of the violent offences Ms Opelu committed on 18 December 2017 and in October 2019.
45. The 18 December 2017 assault on AA, who was 4 years old at the time, is very serious. The Statement of Facts placed before the District Court of Queensland,^[28] which Ms Opelu accepted are true, disclose the nature and extent of Ms Opelu’s violent assault of AA. Without reciting those facts, the sentencing remarks of Devereaux DCJ on 3 June 2019 suggest Ms Opelu really abused the child physically and verbally, and she completely lost control during the incident.^[29] The seriousness of Ms Opelu’s conduct is increased by the fact she assaulted AA at a time when a Police Protection Order (PPO) was in force in which AA was named.^[30]
46. The circumstances which led to the making of the PPO involve serious conduct, even though Ms Opelu was not charged with any offence. The grounds for the PPO describe an incident on 19 July 2017 in which Ms Opelu and her then partner (the father of AB and AC) engaged in a verbal and physical altercation over a mobile telephone.^[31] Ms Opelu accepts, in the course of the altercation, she threw a rock through the rear window of her partner’s car and threw a brick through the window of the house where they lived, causing a large cut on her partner’s arm.
47. The offences Ms Opelu committed on 18 and 28 October 2019 are very serious. Breaking into a woman’s home, threatening to kill her and violently assaulting her over an extended period cannot be viewed in any other way. The sentencing judge, Chowdhury J, described this conduct as very serious sustained violence against a woman in her own home.^[32] That is indubitably correct.
48. Ms Opelu’s other offending conduct as an adult is less serious, albeit her repeated failure to comply with orders are matters of some seriousness. The Minister drew attention to evidence of Child Safety concerns Ms Opelu deliberately harmed AA as a young toddler,^[33] and a pattern of excessive physical discipline and injuries to the children in [her] care.^[34] Ms Opelu disputes allegations she deliberately burnt AA with a hair straightening iron or hit AA in the face causing a black eye. She also disputes evidence she was continuously verbally abusive to AA.^[35]
49. Nevertheless, in consideration of Ms Opelu’s history of violent conduct, as Devereaux DCJ observed, she appears to have some tendency towards violence when things are not going well. I am satisfied that is correct. Furthermore, there is a discernible increase in the violence of her offending conduct as an adult, albeit sporadic. The violent offences Ms Opelu committed on 28 October 2019 were more violent than her previous offence against AA in December 2017, which was more violent than her previous conduct The trajectory of her offending moves from relatively minor thuggish conduct to home invasion involving serious armed violence. In all likelihood, on achieving adulthood, her tendency to violent conduct was somewhat reactive and a reflection of her own experience of violence at home as a child. This can be seen in records of her excessive physical discipline and subsequent violent assault of AA, and the protection orders made in 2017 and 2019. The violence she engaged in when committing offences on 28 October 2019, however, has a different quality. The records of these offences point to Ms Opelu’s violent conduct being more calculating and deliberate, albeit in all likelihood drug-affected.
50. I have had regard to the remarks of Judges who sentenced Ms Opelu for offences she committed as an adult.^[36] She has been cautioned about the consequences of continuing to offend. On 3 June 2019, having regard to relevant circumstances when sentencing Ms Opelu for the domestic violence assault she committed against AA, Devereaux DCJ said:

    At the moment your situation is apparently quite different from what it was when you committed this offence. You live now with your brother and his wife. You have very young twins. So your brother and his wife are very graciously keeping you at their house, and the complainant in this case is able to come and stay there at time. You can go and see him. According to the St Vincent de Paul people, the relationship between you and him is very positive. He is comfortable with you, and turns to you to have his care needs met. So your goal is to be reunited with him and that looks like it is ging to work.

    You must be punished for such violence. The community condemns it. Any kind of violence in the house is not acceptable. I have been told that you grew up in a violent house, and it might be difficult to deal with problems in a different way. But if you do not you will just be sent to jail, and your children will not go to jail with you. They will have to come and visit you there. So if that is what you want to happen then just keep going. But the signs say you do not want that to happen and you will fix things up with support from people like your brother, whom you should thank.

    So I have concluded that, as a starting point, the sentence should be one of imprisonment, but I make it by way of an intensive correct order with your consent...^[37]

51. Notwithstanding these cautionary remarks, Ms Opelu failed to comply with and contravened the ICO,^[38] and she went on to commit more serious offences on 18 and 28 October 2019.
52. Ms Opelu asserts she has reformed herself and she now has greater insight into her previous conduct. There is some force to this, as will appear. Nevertheless, her tendency to reactive violence persists. Most recently, while in immigration detention on 12 May 2022, Ms Opelu was reported to have engaged in verbally abusive and aggressive conduct during a Women’s Social Group welfare activity.^[39] This incident suggests Ms Opelu has not yet overcome or fully learned to manage her tendency to such conduct.
53. In the balance of relevant considerations, the seriousness of Ms Opelu’s conduct weighs against revoking the decision to cancel her Visa. The overall weight to be given, however, requires consideration of any risk of harm should she offend again.

Risk to the Australian community should the non-citizen commit further offences or engage in further serious conduct

54. The circumstances of Ms Opelu’s past serious conduct are relevant considerations when assessing the risk of harm to the Australian community should she engage in further serious conduct. Her failure to heed the cautionary remarks of sentencing Judges is telling of her mindset at the time. So, too, is her contravention of protection, correction and bail orders.
55. Tolerance of risk is in inverse proportion to the seriousness of potential harm should Ms Opelu engage in further serious conduct.
56. The most serious offences Ms Opelu committed involved domestic violence against a defenceless child and armed violence in company against a woman in the safety of her own home. Her offending conduct caused physical and emotional harm to her victims. Other offending conduct involved property damage and theft. Individuals in the Australian community may be harmed in these ways should Ms Opelu engage in further criminal or serious conduct. Furthermore, Ms Opelu has a record of failing to comply with court-imposed orders. Flouting court orders undermines public perceptions of and trust in the justice system. Harm of this kind may be caused should Ms Opelu fail to comply with court orders in the future.
57. The Australian community has a very low tolerance of risk in respect of violent offences against young children, especially where the risk involves violent assault of a defenceless child in their home by a person with care responsibilities, in breach of trust. There is also a very low tolerance of risk in respect of violence against women, especially where the violence is perpetrated in company with use of weapons against a woman during the invasion of her home.
58. Ms Opelu’s record of failure to comply with warnings, cautions, orders and bail conditions is a relevant context in which to assess her present assertions in respect of remorse, rehabilitation and reform. On these matters, the evidence of Dr Sheridan, an Adjunct Associate Professor of Psychology, is instructive.
59. On her evidence, the likelihood Ms Opelu might engage in further criminal or other serious conduct is low or very low. Dr Sheridan applied the Personal Assessment Inventory – Plus (PAI-Plus) and the HCR-20 (Version 3) (HCR-20), as well as a clinical assessment. She explained the HCR-20 involves use of structured professional judgement when considering historical, current and future risk factors in context.^[40] I accept HCR-20 is a well-recognised and appropriate tool for assessing a person’s potential future risk of violence and re-offending in a case of this kind.
60. It is important to immediately observe the assessment of future risk is an assessment of potentiality, without certainty.
61. On Dr Sheridan’s evidence, with regard to Ms Opelu’s history, there are 10 items within the HCR-20 which produced a high risk of violent offending. In respect of Ms Opelu’s psychological adjustment over the preceding 12 months, 2 of 5 clinical factors were found to be present. These are instability and symptoms of major mental disorder. Dr Sheridan gave evidence that even though Ms Opelu was in a controlled environment for the 12-month period preceding the assessment, this would be unlikely to produce a skewed result. She explained, in her professional experience of more than 25 years, if there was a skewed result, it would likely be higher in a controlled environment than in a community environment. In consideration of the 5 factors which relate to Ms Opelu’s future risk of violent offending, only 1 was reported to be partially present and relevant, namely anticipated problems with stress or coping.^[41] Dr Sheridan reported this is consistent with a very low risk of future offending.^[42]
62. Dr Sheridan was closely cross-examined on these points and the basis of her opinion. She explained in her report that Ms Opelu does not present a risk of reoffending should not be understood to imply there is no risk. She clarified there is some level of risk but, in her assessment, the future potential for risk is very low if Ms Opelu remains abstinent from illicit drugs and she continues to receive psychological support. The HCF-20 tool operates by considering the 3 periods separately and the historical aspect has relevance, but this does not have a strong relationship to future risk. The model relies on offender needs being addressed. In her assessment, even if Ms Opelu did not continue to receive treatment and support and her historical record of offending is added in the assessment of future risk, the scores obtained would still produce scores within the low-risk range.
63. With regard to rehabilitation and Ms Opelu’s assertion of reform, I am satisfied Ms Opelu’s expressions of remorse for her past offences are genuine and she has positively engaged with support services, counsellors and others. When her serious offending conduct is considered in the context of her life, as Dr Sheridan observed, the trauma Ms Opelu experienced as a child, including sexual and domestic violence, was instrumental in her substance abuse and violent conduct. Not only did she lack insight into this as a young adult and turned to substance abuse for relief, on Dr Sheridan’s evidence, she was in denial and she was unwilling to reach out for help and support. In Dr Sheridan’s opinion, Ms Opelu has undergone a painful and difficult recognition about these matters - she had to stop and take responsibility for her actions and her life, despite what was done to her. In Dr Sheridan’s opinion, it is this occurrence which marks a turning point for Ms Opelu: dropping denial and reaching out for help and support, as well as taking responsibility for her actions and her life, reduces the risk she might offend again in the future.
64. This assessment is supported by evidence of Ms Opelu’s engagement with counselling and support services, and activities she has undertaken during the period she has been held in custody and in immigration detention. Those engagements include:

    (a) regular weekly or fortnightly counselling sessions;

    (b) positive engagement with support services including Sisters Inside Inc (a community support service for women in the criminal legal system)^[43] and the Alpha program (a church-based support program);

    (c) completion of courses^[44] including resilience, parenting, drug intervention and vocational courses;

    (d) employment, commencing as an Industries Worker with subsequent promotion to Industry Team Leaders, Senior Industry Worker and Industry Overseer; and

    (e) leading a Bible prayer group during periods of lockdown during the Covid-19 pandemic.

65. Angela Nottage, a social worker, was involved in Ms Opelu’s case through the St Vincent de Paul Society from June 2018. Her evidence is she worked intensively with Ms Opelu, conducting home visits, including full day visits, at least 3 times per week for 6 months, when she left St Vincent de Paul employment. She explained Ms Opelu was very actively engaged in seeking and participating in the supports provided. It is Ms Nottage’s professional opinion Ms Opelu gained insight and skills, including in respect of parenting and regulating emotion, from participating in counselling and other activities, and Ms Opelu was a good mother to her twins. I accept Ms Nottage’s evidence on these points.
66. Ms Opelu commenced an intensive Bringing Up Great Kids Parenting Course with Ms Nottage. She completed this course in May 2019.^[45]
67. Ms Nottage acknowledged her opinion is drawn from observation of Ms Opelu during the period of their interactions in the latter part of 2018. During that period, Ms Nottage did not observe Ms Opelu engaging in violence and she did not identify any evidence Ms Opelu was using illicit drugs or alcohol. There is evidence Ms Opelu chose not to prioritise contact with AA in September 2018.^[46] I am satisfied at or about this time, Ms Opelu ended a dysfunctional, violent and drug-affected relationship with the father of her twins, AB and AC.^[47] This occurred before AB and AC were born in November 2018. At that time, Ms Opelu was residing with her elder brother and his family. This fact was remarked upon by Devereaux DCJ on 3 June 2019 when sentencing Ms Opelu for her assault of AA.^[48] Furthermore, a child safety intervention in respect of AB and AC was closed in June 2019:

    An Intervention with Parental Agreement was in place regarding [AA’s] half siblings [AB] and [AC]. This intervention closed in June 2019, with the Family Intervention Service reporting that Ms Opelu engaged well and she has made progress in addressing the areas of parenting, identifying safety and support networks and had met the needs of the twins.^[49]

68. Subsequently, on (and perhaps before) 26 July 2019, Ms Opelu failed to comply with the ICO of Devereaux DCJ.^[50] In late September 2019, shortly before their 1^st birthday, she left AB and AC at the house where their father resided with his parents, Mr and Mrs Robinson. By her own account, she was very stressed and not coping with caring for infant twins, and she needed relief. Dr Sheridan recorded the following history:

    Ms Opelu said when the twins were babies she was not coping and began to use drugs again. She said her brother and sister-in-law have three children and businesses to run and she did not want to trouble them. As such, she did not tell anyone that she was not coping. Ms Opelu said her friend told advised her to get Brian to take care of the twins, so she did this and then “went on a bender and ended up in jail”.^[51]

69. Mrs Robinson gave evidence, after dropping off the twins, Ms Opelu was not able to be contacted and her whereabouts were unknown. Ms Opelu then engaged in illicit drug and alcohol abuse and the commission of violent offences on 18 and 28 October 2019 which led to her arrest on or about 6 November 2019. Ms Opelu has been held in custody, prison and detention since this event.
70. The available evidence suggests Ms Opelu commenced abuse of illicit substances with glue-sniffing when she was a young teenager. By her own account, in the period to 2017 she used increasing amounts of ICE, cannabis and alcohol while staying with friends and acquaintances, including ‘Michelle’.^[52] I note in passing Ms Opelu remains friends with ‘Michelle’, who I understand has reformed her life and no longer engages in substance abuse.
71. Even though it is not possible to determine if Ms Opelu was completely drug-free and abstinent in the period from in or about October 2018 to September 2019, there is no direct evidence she abused drugs and alcohol in this period. Doing the best with the available materials, I am prepared to accept she refrained from using illicit drugs for a time. It is very clear, however, and by her own admission, Ms Opelu resorted to using illicit drugs, including ICE and cannabis, after leaving her twin children with Mrs Robinson in September 2018 and in the lead up to the offences she committed in October 2018.
72. I accept she has not used illicit drugs or alcohol from the time she was arrested and taken into custody on 6 November 2019 to the present.
73. This notwithstanding, subsequently on 2 occasions Ms Opelu engaged in violent conduct. The first involved an incident in which she struck a male prison officer. She asserts (and this is not contested) the officer picked on her and other female inmates. Dr Sheridan recorded this event in the following terms:

    She said one particular officer would pick on her all the time so she told the supervisor who did nothing. Ms Opelu said she asked the officer for help with a work machine and he was bad tempered. She said she asked him why he was grumpy and he said “My problem is having to come to work and look at you every day”. Ms Opelu said she was very upset and was advised to write a letter about this. She said when she tried to write the letter, the officer told her to give him the letter. Ms Opelu says she was crying and the officer threatened to call a code, and she “whacked him”.

74. The second incident occurred in immigration detention when she was verbally abusive and aggressive in a Women’s Social Group welfare activity on 11 May 2022.
75. When cross-examined about these incidents, Ms Opelu accepted she still has anger management work to do. Dr Sheridan explained Ms Opelu’s past experience of trauma, which the Doctor considered to be extreme, has not yet been fully treated and she will need to continue with counselling and other supports. I accept this is correct. I note, should Ms Opelu be permitted to remain in Australia and released into the community, she remains subject to parole conditions, and this will continue until on or about 5 November 2023. This provides a mechanism for monitoring her conduct.
76. Furthermore, I note Ms Opelu has an offer of full-time employment should she be released into the community, and there appear to be robust arrangements in place for her accommodation and support, importantly from Mr Opelu (among others). I accept Ms Opelu will also be supported by community organisations, including Sisters Inside and the Alpha Program.
77. Weighing the evidence on this point, I am satisfied the risk of Ms Opelu reoffending and engaging further serious conduct is low. This mitigates some of the concern about the seriousness of her previous conduct.
78. In consideration of the seriousness of Ms Opelu’s past criminal conduct and the need to protect individuals and the Australian community from harm which may be caused should she resume her previous trajectory of violent offending behaviour, I am satisfied the low risk of that likelihood is tolerable in the particular circumstances.
79. For this reason, considerations relating to protection of the Australian community weigh against revoking the decision to cancel Ms Opelu’s Visa, but not heavily.

Family violence

80. Paragraph 8.2 of Direction 90 sets out the Government’s concerns in respect of family violence perpetrated by a non-citizen. The concerns are serious but proportionate to the seriousness of the family violence engaged in by the non-citizen.
81. The seriousness of Ms Opelu’s family violence conduct is to be assessed in consideration of the factors set out in paragraph 8.2(3) of Direction 90. These include the frequency and cumulative effect of the conduct and any trend of increasing seriousness, as well as rehabilitation achieved since the last act of family violence. Any family violence offences committed after formal warnings given about the consequences of further family violence must also be considered.
82. As I have said, Ms Opelu was convicted of a domestic violence assault offence against AA. This is squarely within the terms of paragraph 8(2)(a).
83. While Ms Opelu has only one conviction in respect of domestic violence, she has been the subject of protection orders in which AA was named. The factual basis on which the protection orders were made include Ms Opelu’s violent aggression and verbal abuse against the father of AB and AC, her then partner, on 19 July 2017. ^[53] The complaint which led to police attendance in respect of this incident includes a refer to a large man assaulting a woman in the street. Nevertheless, the circumstances recorded in respect of this incident include violence by Ms Opelu directed against the father of AB and AC. This is within the meaning of family violence set out in paragraph 4(1) of Direction 90.
84. .
85. Furthermore, there is a history of reported concerns about the safety of children in her care which resulted in AA being removed from her care in 2014 (and returned in December 2016) and removed again following the assault in December 2017. While Ms Opelu contests the factual basis of the reported concerns, there is sufficient evidence before the Tribunal to establish Ms Opelu likely engaged in conduct within the meaning of family violence on more than one occasion, in November and December 2017 at least. I am not persuaded this amounts to a trend of increasing seriousness.
86. No doubt Ms Opelu’s conduct had a negative impact on AA. For a time, AA did not want contact with his mother. But this did not last. Dr Sheridan gave evidence she was surprised by the strength of the relationship between AA and Ms Opelu, despite Ms Opelu being detained. On the Doctor’ser observation, Ms Opelu knows AA for himself and her assessment of Ms Opelu’s deep ability to connect with AA is supported by the evidence given by Mr Opelu.
87. I do not accept Ms Opelu leaving AB and AC with their father and grandparents at a time of stress in September 2019 amounts to family violence. On the contrary, this is consistent with a young mother responding to her difficulty coping in a manner that was consistent with protecting the children and ensuring their safety and care.
88. Dr Sheridan provided a psychological context and explanation of the traumatic cause of Ms Opelu’s family violence assault of AA, noting that Ms Opelu was using crack at the time.^[54] The Doctor considered Ms Opelu’s remorse to be genuine and described her feelings of guilt as enormous. Having heard Ms Opelu’s evidence, I accept Dr Sheridan’s assessment is correct.
89. Ms Opelu’s violent conduct against the father of AB and AC is to be considered in the context in which it occurred. I note the police facts set out in the grounds for the protection order on 19 July 2017, which Ms Opelu accepted under cross-examination.^[55] I accept the relationship between Ms Opelu and the father of the twins was dysfunctional and associated with substance abuse and conflict. The description set out in the grounds for the protection order on 19 July 2017 suggest some degree of mutuality in the violence, at least in that incident:

    Information received from Police communications was that a large male was assaulting a female in the street with a child crying.^[56]

90. There is no evidence from the father of AB and AC about these matters or any impact on him of Ms Opelu’s violence. I do not accept the laceration he sustained on 17 July 2017 was caused by Ms Opelu stabbing him. Rather, the wound was caused by a shard of glass from a window she broke by throwing a brick. Nevertheless, this impact of her family violence must be taken into account.
91. Ms Opelu struck me as a straight-forward, remorseful witness. She accepted and took responsibility for her past offending and she did not cavil with the facts asserted by police in respect of offences she committed as an adult. She disputed the accuracy of reports of historical child safety concerns in respect of alleged incidents in or about 2014.^[57] On the present materials, the accuracy of these historical references cannot be ascertained or tested.
92. I am satisfied Ms Opelu understands and accepts the impact of her violent conduct on AA. There is ample evidence to support this finding. Dr Sheridan, Mr Opelu (who cares for AA) and by Mrs Robinson (grandmother of AB and AC who has cared for them since September 2019) gave evidence of Ms Opelu’s concern for AA’s well-being. It is very clear Ms Opelu has developed and maintained a strong bond with her children, despite being physically removed from them. Dr Sheridan considered this to be most significant in terms of Ms Opelu’s rehabilitation efforts, undertaking parenting courses and counselling for example to address factors which contributed to her past conduct, and in the important maternal role she continues to play in the lives of her children. The evidence given by other witnesses, including Ms Christian, Ms Corben, Ms Lafaitele and Ms Nottage is consistent with Dr Sheridan’s assessment. These and other witnesses who were not cross-examined lend support to Ms Opelu’s strong and enduring bond with, interest in and commitment to her children.
93. While there is evidence Ms Opelu was given a number of cautionary warnings when being sentenced for offences she committed, the evidence does not establish, prior to the family violence offence she committed, she was expressly warned her migration status might be affected should she commit further offences. Little turns on the following entry in child safety records from 2020:

    Ms Opelu is a Samoan national, therefore it is possible that due to her current offences/charges there is a possibility of her being deported. Ms Opelu feels that this is not likely given her small children and support network.^[58]

94. On balance, I am satisfied Ms Opelu has achieved substantial rehabilitation in respect of her previous family violence conduct. The enduring connection Mr Opelu described between AA and Ms Opelu is a testament to this achievement. The same can be said in respect of Mrs Robinson’s evidence in respect of the enduring relationship between AB, AC and Ms Opelu.
95. The Government’s concern is expressly proportionate to the seriousness of the non-citizen’s family violence conduct. When Ms Opelu’s past family violence conduct is considered in the context of the factors set out in paragraph 8.2(3), the overt seriousness of her family violence conduct is mitigated to a large degree by the relevant circumstances. Ms Opelu was a child and a young adult when she engaged in the conduct. She has not repeated the conduct since the assault in December 2017. She is deeply remorseful and fully accepts responsibility for her actions. I do not accept Ms Opelu cavils with the factual basis of the offence she committed and in respect of which she entered an early guilty plea.
96. I accept Dr Sheridan’s evidence of the strong enduring bond between Ms Opelu and her children supports her assessment in respect of Ms Opelu’s progress in rehabilitation and the low risk of her engaging again in conduct of this kind.
97. For these reasons, on balance, I am satisfied these considerations in respect of family violence do not weigh heavily against revoking Ms Opelu’s visa.

Best interests of minor children

98. Under paragraph 8.3 of Direction 90, a determination must be made whether non-revocation under s 501CA is or is not in the best interests of each child affected by the decision. The question posed is, in effect, whether cancellation of Ms Opelu’s Visa and returning her to New Zealand is in the best interests of each affected child.
99. A decision-maker must consider the following factors:
100. Under paragraph 8.3(4), when considering the best interests of the child, the following factors must be considered where relevant:

     a) 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);

     b) 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;

     c) 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;

     d) 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;

     e) whether there are other persons who already fulfil a parental role in relation to the child;

     f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

     g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

     h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

101. Clearly enough, Ms Opelu’s children, AA, AB and AC are affected by the decision to cancel her Visa and, hence, by the Tribunal’s decision under s 501CA(4).
102. While there are other children who may be affected by the decision, including Ms Opelu’s three nephews and nieces with whom AA resides and four siblings, no evidence was adduced and no submissions were made by the parties addressing the question whether non-revocation of the decision to cancel Ms Opelu’s Visa is in their best interests. In such circumstances, it is not possible to determine or to fairly consider where their best interests lie, and there is no place for conjecture about such matters. That being so, it is the best interests of Ms Opelu’s children that must be determined.
103. The nature and duration of Ms Opelu’s relationship with AA is clearly established by the evidence of Dr Sheridan and Mr Opelu, in particular. As I have said, it is a strong and enduring relationship. Ms Opelu is in frequent and regular contact, at least daily, with AA. This is enabled by Mr Opelu and his wife by means of telephone and video calls, supplemented by in person visits when this was possible. Presently, Ms Opelu is located in immigration detention in Melbourne, far away from AA in Brisbane.
104. The Minister is correct to point out the lengthy separation of Ms Opelu from AA during the period she has been incarcerated and held in immigration detention since 6 November 2019. While any long periods of absence or limited meaningful contact arising from Ms Opelu’s incarceration and detention must be considered for the purposes of 8.3(4)(a), the direction in respect of the weight to be given is conditioned by the word generally.^[59] It can be accepted the apportionment of weight involves consideration of relevant historical facts as well as relevant prospective matters.^[60]
105. The phrase ‘long periods of absence’ is to be construed in the context of the nature and duration of the relationship that is at the heart of paragraph 8.3(4)(a). The word absence in this context refers to something more than physical separation, alone. It is absence from the relationship which must be considered. This is exemplified by common experience in a digitally networked world, especially in the context of enforced separation under public health orders in respect of the Covid-19 pandemic, in which many people maintain relationships remotely, using social media for example. Whether absence exists in the particular circumstances of any case is a matter of fact and degree.
106. I am satisfied Ms Opelu’s relationship with AA is not attended by long periods of absence. Rather, her relationship with AA involves frequent, regular and continuing contact and involvement. This is consistent with the existence of a present and enduring mother-child relationship, albeit attended by enforced physical separation interspersed with in-person visits of varying frequency. I note the break in communication between Ms Opelu and AA following the assault against him in December 2017.^[61] It is likely this lasted for a number of months and Ms Opelu re-established communication and her relationship with AA with the assistance of Mr and Mrs Herbert and her brother, Mr Opelu.
107. I am also satisfied Ms Opelu’s relationship with AA is not attended by long periods of limited meaningful contact. Mr Opelu’s evidence of the nature and content of contact between Ms Opelu and AA strong suggests the contacts are meaningful to AA. He explained their bond is strong and closer over the years. Dr Sheridan’s evidence and the evidence of Ms Corben, Ms Perrera and Ms Christian, for example, clearly reveals the meaningfulness Ms Opelu derives from contact with AA.
108. Enduring orders are in place under which AA is in the care of Mr Opelu until the age of 18. There is no evidence this will change should Ms Opelu be permitted to remain in Australia. That said, Mr Opelu explained his expectation (and his hope) Ms Opelu would continue to be closely involved with AA, within their family. He gave evidence Ms Opelu has matured and gives good advice to AA, and he expects she will make a positive contribution to the lives of her children in Australia.^[62] There is much support for this conclusion in the witness statements and other evidence, including the evidence of Dr Sheridan in respect of Ms Opelu’s rehabilitation and the low risk of her engaging in further serious conduct.
109. On Mr Opelu’s evidence, the greatest impact of Ms Opelu’s previous conduct on AA appears to be her physical separation from him: “he craves and requests her communication, he speaks fondly of things he wants to do with her when she is released”.^[63] This impact will be exacerbated should Ms Opelu be returned to New Zealand, where opportunities for physical interaction with AA will be limited by distance.
110. Weighing the relevant factors in respect of AA, who is presently 9 years old, I am satisfied non-revocation of the decision to cancel Ms Opelu’s Visa is not in his best interest.
111. While the circumstances of AB and AC are different to those of AA, I reach the same conclusion. Their best interests are not served by non-revocation.
112. AB and AC reside with and are in the care of their father and grandparents. No formal orders have been made in respect of their care. Mrs Robinson’s evidence is that shared care arrangements between the children’s father, grandparents and Ms Opelu will be discussed and settled within the family should Ms Opelu be permitted to remain in Australia.
113. The evidence establishes Ms Opelu has maintained frequent and regular contact with AB and AC with the facilitation of Mrs Robinson. Despite the enforced physical separation of Ms Opelu from AB and AC, I am satisfied the nature and extent of her contact with them is meaningful and not consistent with long periods of absence. Mrs Robinson and Mr Opelu gave evidence Ms Opelu includes and facilitates interaction between AA, AB and AC in her contacts with them.^[64] Dr Sheridan considered the bond between Ms Opelu and all her children to be very strong. I accept this is correct. Mrs Robinson explained Ms Opelu “is an integral part of their lives”^[65] and she contributes financially and in decision-making for AB and AC.
114. On Mrs Robinson’s evidence, AB and AC have a positive relationship with Ms Opelu and AA: “the children enjoy speaking to one another, the twins chatter about the call after it has concluded. They love speaking to her”.^[66]
115. Mrs Robinson stressed the importance of family within Samoan culture and the community in which Ms Opelu and her children are members: “connection to culture and access to our parents is crucial for spiritual, emotional and physical wellbeing”.^[67] She explained “It takes a village to bring up children in our culture” and it was always understood AB and AC would go back into the care of their parents.
116. I am satisfied AB and AC have not been subject to family violence in the past and the risk of them being exposed to such conduct in the future should Ms Opelu be permitted to remain in Australia is low.
117. I note Mrs Robinson’s oral evidence that AB has special needs. There is no medical evidence addressing this point before the Tribunal. Mrs Robinson explained Ms Opelu is aware of this circumstance and AB will benefit from her close involvement in his future care and related arrangements. Having regard to Dr Sheridan’s evidence, I accept this is correct so long as Ms Opelu refrains from substance abuse and persists with rehabilitation efforts should she be released into the community.
118. There is some force to the proposition the present arrangements for care of each of the children, AA, AB and AC, are stable and continuation of these arrangements is in their best interests. Considering the evidence of Mr Opelu, Mrs Robinson and Dr Sheridan, I am satisfied Ms Opelu may well be integrated within the existing arrangements without disruption of the children’s lives and stability. The weight of evidence suggests the lives of each of the children will be enriched should Ms Opelu be permitted to remain in Australia. I accept this is likely so long as Ms Opelu continues with her rehabilitation and remains abstinent and compliant with the conditions recommended by Dr Sheridan.
119. There is also some force to the proposition Ms Opelu’s capacity to deal with the stresses which will inevitably arise when caring for young children in the community, juggling the pressures of work and financial pressures with the needs of children while continuing to engage in rehabilitation has not been tested in the community, outside the structure environment of prison and detention. This is correct. As Dr Sheridan made clear, there is some level of risk Ms Opelu might fail in her rehabilitation efforts, but in her assessment, the risk is low or very low.
120. On balance, I am satisfied non-revocation of the decision to cancel Ms Opelu’s visa does not serve the best interests of each of the children.
121. This consideration weighs heavily against non-revocation.

Expectations of the Australian community

122. The Government’s statement of Australian community expectations is set out in paragraph 8.4 of Direction 90. The general expectation is that non-citizens obey Australian laws while in Australia and:

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

123. In terms, as a norm, it is adverse to any non-citizen who has engaged in serious conduct in breach of those expectations.^[68]
124. Nevertheless, paragraphs 8.4(1) and (2) should not be construed to direct the decision a decision-maker must make under s 501CA(4)(b)(ii) in any particular case. The expectations of the Government must be considered on the facts and weighed against other relevant considerations, noting that primary considerations generally are to be given more weight than other considerations. The expectations should not be construed in a manner that is inimical to the exercise of the discretion conferred upon the decision-maker.^[69] It is necessary to consider any serious character concerns and to determine what is appropriate in the particular circumstances, as Stewart J said in FBYR’s case at [102]:

     It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be. That is why the decision-maker must assess what is “appropriate” in the particular circumstances. Nevertheless, an adverse character assessment is necessarily against a visa applicant, to some degree or other; no one will be awarded a visa because they are of bad character.

125. Ms Opelu’s violent offending conduct, particularly in December 2017 and in October 2019, is a serious character concern. The circumstances of her offending conduct are set out in police statements of facts and in the sentencing remarks of Chowdhary J and Devereaux DCJ. In making an assessment of Ms Opelu’s character, there are two further contextual considerations.
126. On Dr Sheridan’s evidence, Ms Opelu’s offending conduct was occasioned by unprocessed childhood trauma and substance abuse, both of which are bear upon the risk of her re-offending.
127. It is not necessary to discuss the factual background of Ms Opelu’s traumatic experiences as a child in detail. I accept she was exposed to sexual abuse and domestic violence in New Zealand. Following her arrival in Australia with her mother at the age of 11, she was subjected to further violent abuse at home and came to the attention of child safety officers. By the age of 14 she had run away from home and left school for fear of being returned to. She was homeless for a time and turned to substance abuse, including sniffing glue. She was impecunious and unable to access youth support payments without parental approval. This exacerbated the difficult circumstances she experienced which led to involvement with the justice system. AA was born in June 2013, when Ms Opelu was 16 years old. Things did not go well thereafter. Put simply, when she attained adulthood, her life at that time was spiralling out of control into substance abuse and criminal offending. AA was removed from her care on child safety and neglect grounds. It was several months after AA was returned to her care, a toileting incident occurred in which Ms Opelu lost control and violently assaulted AA. At the time of the offence, Ms Opelu was little more than a damaged child bringing up a child. On the evidence of Ms Nottage and Dr Sheridan, Ms Opelu lacked parenting skills, knowledge, understanding and support. This is evident in the records of child safety concerns in the materials before the Tribunal. At the age of 22, Ms Opelu acted to change her circumstances before giving birth to AB and AC in October 2018. She sought assistance from her brother but, once again, struggled to cope. She “went on a bender” and committed the serious offences which led to her incarceration and, ultimately, to the decision under review in these proceedings.
128. It is Dr Sheridan’s opinion Ms Opelu has engaged in rehabilitative courses and other activities to address her aberrant conduct and she has engaged with support services to obtain counselling and assistance with resilience and coping strategies to modify her response to stresses and triggers that might arise in the future. It is on this basis Dr Sheridan considered the risk of Ms Opelu re-offending is low or very low.
129. When these features of Ms Opelu’s case are viewed through the prism of community expectations, reasonable minds may differ about what is appropriate in the particular circumstances. On the one hand, Ms Opelu’s acts of family violence against AA and the serious crimes she committed against the female victim of the house she invaded on 28 October 2019 are such that the community would expect the privilege of her remaining in Australia to be withdrawn and the cancellation of her Visa not to be revoked.
130. On the other hand, there are mitigating circumstances which the community would expect to be taken into account, which may render it inappropriate for her Visa to remain cancelled and for her to be removed to New Zealand. These include:

     (a) Ms Opelu’s relative youth and immaturity at the time she committed the offences of serious concern;

     (b) her strong and enduring relationship with her 3 young children;

     (c) her background of unprocessed trauma and difficult circumstances; and

     (d) her efforts to turn her life around by engaging in rehabilitation and abstaining from substance abuse since being taken into custody on 6 November 2019.

131. On balance, in the circumstances of this case, I am satisfied the weight to be given to the adverse assessment of Ms Opelu’s character is not decisively against her. Considering this through the lens of community expectations as a whole, in the terms expressed in paragraph 8.4(1) and (2) of Direction 90, and considering what is appropriate in all the circumstances, I am satisfied this consideration does not weigh heavily for or against revoking Ms Opelu’s Visa.

Other Considerations

International non-refoulement obligations

132. This is not a relevant consideration in this case.

Extent of impediments if removed

133. The matters set out in subparagraph 9.2 must be considered:

     Decision-makers must consider 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:

a) the non-citizen's age and health;

b) whether there are substantial language or cultural barriers; and

c) any social, medical and/or economic support available to them in that country.

134. It is not controversial Ms Opelu will face some impediments if she is returned to New Zealand.
135. Ms Opelu is 26 years old. I accept her evidence she could establish herself anywhere. Considering the country information in Exhibit 15, there is a great deal of complementarity between legal, health and social welfare systems in New Zealand and Australia.
136. The impediments Ms Opelu is likely to face relate to her family relationships and her community, principally the loss of close physical contact with her immediate family members. While it can be accepted she would be able to maintain relationships with her children remotely, using electronic communication technologies as she has done since November 2019, her ability to maintain physical interactions with them would be substantially impeded. On Mrs Robinson’s evidence, this would be limited to occasional visits when family members travel to New Zealand from time to time. Mr Opelu’s family does not have contact with relations in New Zealand, as all close relatives are in Australia.
137. This consideration weighs in favour of revoking the decision to cancel Ms Opelu’s Visa, but only lightly.

Impact on victims

138. The relevant consideration under subparagraph 9.3(1) of Direction 90 is the impact of the decision under s 501CA on members of the Australian community, including victims of the non-citizen’s criminal behaviour. Properly understood, the focus is squarely placed on the visa decision on members of the Australian community, including but not limited to victims of the non-citizen’s criminal behaviour and their families.
139. There is little evidence before the Tribunal from victims of Ms Opelu’s past criminal offending or other serious conduct she has engaged in. Importantly, there is no probative or compelling evidence of the impact a decision under s 501CA(4)(b)(ii), one way or the other, might have on members of the Australian community.
140. I note Ms Opelu’s letter to the female victim of her offences on 28 October 2019 and the sentencing remarks of Chowdhary J. I also note the comment about AA not wanting to meet with Ms Opelu on 7 March 2018.^[70]
141. Importantly, impact cannot be assumed without evidence.
142. This consideration can go no further. It does not weigh for or against revocation of the decision to cancel Ms Opelu’s Visa.

Links to the Australian community

143. It is necessary to consider the strength, nature and duration of Ms Opelu’s ties to Australia under subparagraph 9.4.1, and any impact on Australian business interests under subparagraph 9.4.2.

Strength, nature and duration of ties to Australia

144. Subparagraph 9.4.1 is in the following terms:

     (1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

     (2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non­ citizen has to the Australian community. In doing so, decision-makers must have regard to:

a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i. less weight should be given where the non-citizen 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.

b) 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.

145. Mr Opelu, Mrs Robinson and other members of Ms Opelu’s family who gave letters of support but where not called to give oral evidence support Ms Opelu being permitted to remain in Australia. Mr Opelu and Mrs Robinson gave evidence about the negative impact Ms Opelu’s removal to New Zealand would have on AA, AB and AC.
146. I accept these considerations weigh in favour of revoking the decision to cancel Ms Opelu’s Visa.
147. The Minister submits Ms Opelu’s mother and her siblings (other than Mr Opelu), and the father of AB and AC did not give oral evidence in support of her case. The Minister did not go so far to assert an adverse inference should be drawn. I understand members of Ms Opelu’s immediate family were unable to participate as they had pre-booked a holiday which coincided with the hearing. In a case of this kind which is subject to stringent time limits under s 500(6L), there is only limited opportunity to delay hearing dates. In this case, the hearing was extended on 2 occasions to accommodate witnesses and in order to ensure procedural fairness to the parties. No application was made to further delay the hearing to accommodate other members of Ms Opelu’s family. I draw no inference from their lack of involvement as witnesses at the hearing.
148. Ms Opelu is 26 years old. She has resided in Australia from the age of 11, having first arrived in 2008. While her conduct as a child involved dysregulated and aggressive behaviour, it must be recalled her childhood years in Australia were attended by violent abuse, unprocessed trauma, homelessness, impecuniosity and lack of support.
149. The Minister asserts Ms Opelu has not contributed positively in any real degree to the Australian community. I do not agree. There is evidence Ms Opelu was employed for a time in a clothing warehouse. There is also evidence (which was not challenged) she engaged in volunteer activities in the community through her church. I understand and accept this involved providing food to homeless young people and other youth support activities. Furthermore, Ms Opelu was instrumental in organising and leading a prayer group while incarcerated during period in which Covid-19 restrictions were in force which limited visitation and group activities.. I note, too, Ms Opelu has been in employment during the term of her imprisonment, and she has the offer of full-time employment in an Australian business should she be released. To my mind, while these contributions to the Australian community may not be of great magnitude, they should be considered, nonetheless
150. On balance, I am satisfied Ms Opelu has strong and enduring links to the Australian community through her family, her cultural community and her church community. She has spent most of her life in Australia. The evidence does not suggest she has any meaningful contact with anyone in New Zealand.
151. These considerations weigh in favour of revoking the decision to cancel his Visa.

Impact on Australian business interests

152. This consideration is not presently relevant in the circumstances of Ms Opelu’s case. I note Ms Opelu has been offered employment by Australian Framing Solutions.^[71]

Conclusion

153. On balance, weighing the primary and other relevant considerations in accordance with the Objectives, the Principles and the guidance given in subparagraph 7 in Direction 90, I am satisfied the balance tips in favour of revocation.
154. While considerations relating to protection of the Australian community are attended by risk, the risk is tolerable, and the seriousness of her conduct is mitigated by her evident remorse and rehabilitation efforts. This is especially so, as Ms Opelu remains subject to the conditions of her release on parole should she be returned into the Australian community.
155. I am satisfied considerations relating to the protection of the Australian community weigh against revoking the decision to cancel Ms Opelu’s Visa, but not heavily or decisively.
156. I have found consideration of family violence do not weigh heavily against revocation of the delegate’s decision. Ms Opelu’s most serious family violence conduct involved a single incident, the seriousness of which is mitigated by her efforts to engage in rehabilitation, as well as by her remorse and what I accept is a deep sense of guilt and shame. These considerations weigh against revoking the decision to cancel her Visa, but not decisively.
157. I am satisfied non-revocation of Ms Opelu’s Visa is not in the best interests of AA, AB or AC. Their best interests are served by revoking the Visa and permitting Ms Opelu to return to the supportive embrace of her family, as offered by Mr Opelu and Mrs Robinson, in order to positively contribute to the lives and care of her children. These considerations weigh strongly in favour of revoking the decision to cancel her Visa.
158. The expectations of the Australian community do not weigh heavily for or against revocation. For reasons I have explained, concerns about the adverse assessment of Ms Opelu’s character based on her record of serious conduct are tempered by the particular circumstances of her case. Having carefully considered relevant factors through the lens of community expectations the Government has expressed, I am satisfied it is not appropriate to require her removal from Australia in the particular circumstances. Nevertheless, on balance, these considerations do not weigh strongly for or against revocation of the delegate’s decision.
159. While Ms Opelu will face some impediments should she be returned to New Zealand, these do not weigh heavily in the balance. They weigh in favour of revocation, but only lightly.
160. Ms Opelu’s links to the Australian community are strong and enduring. Her immediate family members are all in Australia (with the possible exception of her father with whom she is estranged and has no contact). The Samoan cultural community of which she is a member is located in Brisbane, as is the church community to which she belongs. She has spent most of her life in Australia, having arrived as a child. These considerations weigh strongly in favour of revoking the decision to cancel her Visa.
161. Giving the primary consideration greater weight than other relevant considerations, I am satisfied the balance weighs in favour of revoking the decision to cancel Ms Opelu’s Visa.
162. That being so, even though I am satisfied Ms Opelu fails the character test, there is another reason to revoke the decision to cancel her Visa for the purposes of s 501CA(4)(b)(ii) of the Migration Act.

Decision

163. The 15 September 2022 decision of the Minister’s delegate is set aside and in substitution, the Tribunal revokes the cancellation of Ms Opelu’s Class TY Subclass 444 Special Category (Temporary) visa.

I certify that the preceding 163 (one hundred and sixty-three) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

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

Associate

Dated: 9 December 2022

Date of Hearing: 23, 24, 25 November and 6 December 2022

Representative for the Applicant: Eve Watts, Inclusive Migration

Solicitor for the Respondent: Matthew Hawker, Sparke Helmore

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^[1] In materials before the Tribunal, Ms Opelu is referred to by other names, including ‘Roweena’, ‘Rose’ and ‘Woofi’.

^[2] See Exhibit 1, G24, page 126 and Exhibit 4, page 4, for example.

^[3] Exhibit 2, R4, pages 118 and 157.

^[4] Ibid, R2, page 71.

^[5] Ibid, R4, page 129 and 130.

^[6] Ibid, page 130.

^[7] See Exhibit 1, G28, folio 152.

^[8] Exhibit 2, R1, page 1; R2, page 75; and R3, pages 84-85.

^[9] Exhibit 1, G14.

^[10] Ibid, G15, G16, G17 and G18.

^[11] Ibid, G19.

^[12] Exhibit 1, G3, folio 9.

^[13] Ibid, G1.

^[14] [2022] FCAFC 23.

^[15] Ibid, at [36]-[38].

^[16] See discussion of relevant principle in The Applicant and The Regulator [2019] AATA 4683.

^[17] Exhibit 1, G5, folio39.

^[18] Ibid, G4, folios 34-36.

^[19] Ibid, folio 36.

^[20] Ibid.

^[21] Ibid.

^[22] Ibid, folio 35.

^[23] Exhibit 2, R1, page 22.

^[24] Ibid.

^[25] Ibid.

^[26] Ibid.

^[27] Ibid.

^[28] Ibid, pages 69-70.

^[29] Ibid, page 66.

^[30] Exhibit 2, R2, page 75.

^[31] Exhibit 2, R3, pages 88-89.

^[32] Exhibit 1, G5, folio 42.

^[33] Exhibit 2, R4, page 134 for example.

^[34] Ibid, pages 118-119; see R1, page 22, for example.

^[35] Ibid, R4, page 134.

^[36] Exhibit 1, G8 and G10; Exhibit 2, R2 pages 60-68.

^[37] Exhibit 2, R2, page 67.

^[38] Ibid, pages 71-74.

^[39] Exhibit 1, G13, folio 62.

^[40] Exhibit 14, page 10.

^[41] Ibid, pages 10-11.

^[42] Ibid, page 11

^[43] Exhibit 1, G24.

^[44] Exhibit 1, G11 and G23, folios 114-124.

^[45] Exhibit 1, G25, folio 125.

^[46] Exhibit 2, R4, page 142.

^[47] See the history recorded by Dr Sheridan in Exhibit 14, page 8.

^[48] Ibid, R2, page 67.

^[49] Ibid, R4, page 143.

^[50] Ibid, R2, pages 72-74.

^[51] Exhibit 14, page 8.

^[52] Exhibit 8, page 2.

^[53] Exhibit 2, R3, pages 88-89.

^[54] Exhibit 14, page 7.

^[55] Exhibit 2, R3, pages 88-89.

^[56] Exhibit 2, R3, page 88.

^[57] Exhibit 2, R4, page 118.

^[58] Exhibit 2, R4, page 142.

^[59] Healey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2002] FCAFC 188 at [30]- [31].

^[60] Ibid, at [33].

^[61] Exhibit 2, R4, page 129.

^[62] See Exhibit 5, pages 1 and 4.

^[63] Ibid, page 3.

^[64] Exhibit 6, page 3.

^[65] Exhibit 6, page 2

^[66] Ibid.

^[67] Exhibit 6, page 2.

^[68] FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FBYR’), per Charlesworth J at [75] and Stewart at [89].

^[69] Ibid, per Charlesworth J at [73] and Stewart J at [90]-[92].

^[70] Exhibit 2, R4, page 129.

^[71] Exhibit 1, G25, page 128.