Brown and Minister for Immigration and Citizenship [2009] AATA 78 (6 February 2009)

Last Updated: 9 February 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION

[2009] AATA 78

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/5492

GENERAL ADMINISTRATIVE DIVISION )

Re Maria BROWN

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date 6 February 2009

Place Sydney

Decision The decision under review is affirmed.

..................[sgd]........................
Professor GD Walker
Deputy President

CATCHWORDS

IMMIGRATION – visa cancellation – character test – whether the applicant passes the character test in s 501(6)(a) and (c) of the Act - whether the tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the minister to cancel the applicant’s visa, applying ministerial Direction No 2 – community protection and expectations considered – best interests of the children considered – other consideration – decision under review is affirmed.

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RELEVANT ACT/S:

Migration Act 1958 (Cth) (the Act): ss 499, 501

Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act): ss 40

CITATIONS

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192

Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780

Re Tran and Minister for Immigration and Citizenship [2008] AATA 82

Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56

Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313

Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209

Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234

Green v Minister for Immigration and Citizenship [2008] FCA 125

Al-Kateb v Godwin (2004) 219 CLR 562

Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766

Robtelmes v Brenan (1906) 4 CLR 395

Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054

Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458

Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133

Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608

Re Agafili and Minister for Immigration and Multicultural Affairs [2001] AATA 91

Re Takau and Minister for Immigration and Citizenship [2007] AATA 1575

Re Kelly and Minister for Immigration and Citizenship [2007] AATA 1678

Re Zhang and Minister for Immigration and Citizenship [2007] AATA 1617

Re Chor and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 766

Re Qiu and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 828

Re Ruano and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1240

Re Hadchiti and Minister for Immigration and Multicultural Affairs [2002] AATA 65

Re Dumbrell and Department of Immigration and Multicultural Affairs [2000] AATA 443

Re Braceros and Minister for Immigration and Multicultural Affairs [2001] AATA 145

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OTHER AUTHORITIES

Direction No 21

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REASONS FOR DECISION

6 February 2009	Professor GD Walker, Deputy President
Basic facts

1. The applicant Maria Brown was born in Samoa on 15 December 1965 and is a citizen of New Zealand.
2. The applicant first arrived in Australia on 29 May 1997 at the age of 31, on a visitor's visa as the holder of a Samoan passport. She left Australia on that visa on 27 July 1997, returning on 17 September 1997 as the holder of a New Zealand passport. On the basis of that passport she was granted a class TY subclass 444 special category (temporary) visa.
3. Since then she has left Australia on many occasions, until her latest arrival on 22 May 2002, always as the holder of a New Zealand passport.
4. She states she is engaged to be married to Mr Nasser Rajab, an Australian citizen.
5. She first came before the courts in Australia on 18 January 1999 at Campbelltown Local Court, New South Wales. Her criminal convictions are as follows:

Charge and Court date	Offence	Sentence
18/01/99 and 14/03/01	Goods in personal custody suspected of being stolen	12 month good behaviour bond
	Supply prohibited drug	12 month good behaviour bond
26/11/99 and 14/03/01	Intimidate police officer in execution of duty without actual bodily harm – T2	2 year good behaviour bond
	Assault occasioning actual bodily harm	12 month good behaviour bond
	Driver never held licence first offence within last 5 years	$200 fine
	Assault officer in execution of duty – T2	2 year good behaviour bond
	Intimidate police officer in execution of duty without actual bodily harm – T2	2 year good behaviour bond
	Driver fail to state name and place of abode	$100 fine
29/08/03 and 21/06/04	Unlicensed for class C/R/LR/MR – 2nd + offence	$200 fine
11/09/03 and 21/06/04	Assault occasioning actual bodily harm – T2	$600 fine and 12 month good behaviour bond
13/07/05 and 11/05/06	Supply prohibited drug	12 months' imprisonment; non-parole period 9 months; suspended on entry into 12 month good behaviour bond supervised by NSW probation service
	Supply prohibited drug (5 counts)	12 months' imprisonment; non-parole period 9 months; suspended on entry into 12 month good behaviour bond supervised by NSW probation service
14/10/05 and 16/02/06	Stalk/intimidate with intent to cause fear physical/mental harm – T2	Imprisonment 9 months commencing 16/02/06 non-parole period with conditions 3 months; appeal lodged [see below]
14/10/05 and 01/06/06	Stalk/intimidate with intent to cause fear physical/mental harm – T2	Conviction confirmed; in lieu of imprisonment 9 months non-parole period 3 months suspended on entry into 9 month good behaviour bond

6. Notice of intention to consider cancellation of her visa was sent to the applicant on 3 July 2008. She was granted an extension of time until 31 August 2008 to respond to it. She was informed by letter dated 17 July 2008 that information protected under s 503A of the Migration Act 1958 (Cth) (the Act) would be considered in relation to her potential visa cancellation, and she was invited to comment on that matter. The applicant responded to the notice of intention on 1 September 2008.
7. On 3 November 2008 a delegate of the respondent cancelled the applicant’s visa of the basis of her substantial criminal record as defined in s 501(7) of the Act. On 20 November 2008 she applied to this tribunal for review of that decision.

The summons hearing

8. On the respondent’s application, summonses to produce documents were issued, and documents were produced by Campbelltown Local Court, Downing Centre Local Court, Sydney District Court (Liverpool), the New South Wales Department of Corrective Services and the Housing Department.
9. A summons hearing was held on 19 January 2009 at which the applicant and her son Mr Prince Brown, the applicant in a factually related expedited visa matter (No 2008/5494), were invited to participate by telephone and did so. Ms Katherine Hooper represented the respondent. I explained the purpose of the hearing to the applicants.
10. At that hearing the applicant said that she wanted an interpreter because, although she could speak English, she had difficulty with “long words” and needed assistance because she had no legal representation, her lawyer having withdrawn because of her inability to pay him. She also applied for an adjournment of the substantive hearing.
11. I said the tribunal would arrange for an interpreter at the hearing and again explained the purpose of the summons hearing, asking the applicant if she had any objection to access to the documents being granted to the respondent. The applicant replied that she objected to access to the Housing Department documents on the basis that they should be excluded from consideration. She had lost her house in 2006 and had been homeless ever since, living with friends.
12. I asked her again at least once more whether she had any other objections to access being granted. She took exception to my repeating the question but did not advance any other grounds for objection. At that point Mr Prince Brown intervened and said that neither he nor his mother had any objections to access at present.
13. The respondent submitted that in view of the statutory time limits it was not possible to adjourn the summons hearing until after the date currently set for the hearing. The applicant sought access to the document for the purposes of the hearing, on the basis that the names of departmental officers and their community sources would be redacted.
14. I took the view that the applicant had not shown sufficient grounds for refusing access and granted access to the respondent pursuant to s 40(1D) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), subject to the names of Housing Department officers and their sources being redacted.

The substantive hearing

15. At the hearing, the applicant appeared in person on the first day of the hearing. On the second day she was represented by Mr Nasser Rajab, who had given evidence in her case. The respondent was represented by Ms Katherine Hooper and Mr Lenny Leerdam of DLA Phillips Fox. The documents before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G documents”), taken into evidence as Exhibit A1, together with the other documents tendered by the parties at the hearing. The applicant gave oral evidence in person. A Samoan interpreter translated for her.
16. At the commencement of the hearing the applicant renewed her application for an adjournment to 2 February to enable her to arrange for a lawyer to represent her and to examine the documents produced on summons and the statements of the three police witnesses that were not served on her until shortly before the hearing. The respondent opposed the application on the ground that the 84-day time limit expired on 6 February 2009, and added that the applicant had had legal representation at the time of the application but it had been withdrawn. If the tribunal’s decision were not published by 6 February, the cancellation decision would automatically be affirmed by operation of law. It should be noted that in that event the applicant would presumably lose her right of appeal under s 44 of the AAT Act because there would be no operative tribunal decision. The application for adjournment was refused.

Issues

17. The issues in this case are:
    • (i) whether the applicant passes the character test in s 501(6)(a) and (c) of the Act; and if not,
    • (ii) whether the tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the minister to cancel the applicant’s visa, applying ministerial Direction No 21.

Relevant law and policy

18. Under s 501(2) of the Act, the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test (s 501(2)(a) and (b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are paragraphs (a) and (c), as follows:

...
For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7); or
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(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; ...
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19. “Substantial criminal record “ is defined in s 501(7)

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(7) For the purposes of the character test, a person has a substantial criminal record if:
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(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;
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20. Under s 499(1) of the Act, the Minister may give written directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes this tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238; (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
21. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

The applicant’s evidence

22. At the hearing the applicant adopted her written statements made on approximately 2 December 2008 (part Exhibit A3) and approximately 28 December 2008 (Exhibit A2), in which she detailed the course of events and circumstances of her detention at a friend's home on 14 November 2008. She said that she had repeatedly asked why she was being detained and that the officers kept replying that her visa had been cancelled. They asked her to sign some documents, but she refused to do so before speaking to a lawyer. The man who had asked her to sign the papers had not shown her any identification.
23. Her lawyer advised her not to sign any documents and not to say anything. She and her son were then taken to Villawood, where her family had told her on the telephone that they saw her on television in a half-dressed state, which made her embarrassed and angry, as it reminded her of a television program she saw concerning Cornelia Rau.
24. About a half an hour after she and her son were taken to Villawood, two women had come to see her and asked her to sign some documents saying that they were going to appeal for her son and herself. On that basis they had signed the documents but she was greatly disappointed when she realised that the two women were trying to have them deported from Australia.
25. An immigration officer named Sylvia whom she had met on her first day at Villawood introduced her to her case officer, Vivienne Ellis. Shortly afterwards, she asked Ms Ellis what she could do to appeal to remain in Australia, as she did not know she had been given a visa, having come to Australia on a New Zealand passport with all her children. She had then been told it was too late, as the appeal had to be lodged with the Administrative Appeals Tribunal (the AAT) by Friday. She had not previously known that she needed to lodge an application form to help her get out of Villawood. She believed the department should have arranged for her to have an interpreter and that they deliberately misled her by giving her false information and withholding information.
26. At a very late hour her daughter-in-law organised for the necessary documents to be lodged.
27. The applicant believed that the department and Campbelltown police had deliberately and callously set out to discredit her and her family for reasons known only to them.
28. Between 1999 and 2006 she had lived at 24 Teeswater Place, Airds, New South Wales, in a housing department house with her children. She had never had any problem with the housing department, always paying her rent on time and in advance.
29. Nevertheless, during her whole time in Airds, she had been intimidated and harassed by the police. She had been humiliated because she was a single mother and wanted to live her life with her children.
30. One day she had gone to the housing department offices and asked if they could send a pest controller to rid the house of cockroaches. Subsequently two men arrived and introduced themselves as the pest controllers sent by the department. After they did their work, without her knowledge they planted two hidden video surveillance cameras in her house. On 13 July 2005 she was attacked by almost 20 Campbelltown police officers and taken to the police station. At that time they removed the cameras.
31. She was released on 26 August 2005 and returned home, on instructions to report the next day to Campbelltown police station.
32. At the time she was undergoing great stress, merely in order to get out of jail before Christmas.
33. In late December 2005, she was sitting in her backyard having coffee and a cigarette when she saw a young man who lived in the next street walking through the alleyway near her backyard, holding a baby in his arms. He looked very disconsolate and she asked if she could help him. He told her that he thought his girlfriend was dead and that she was at their house. She offered to help him and walked with him to their house, and while they were walking he confided that he wanted to commit suicide. He agreed to take her advice and she took him to the police station and explained the position to a female officer. She received no thanks for what she had done for saving the man from suicide and reporting the body in the house but was only intimidated all the more by the police.
34. Subsequently, she received a letter from the housing department stating that she would have to appear at a tribunal in Campbelltown as she would be evicted from the house on 31 August 2006. On the day of the tribunal hearing she was taken by 10 police officers to a room and was told by another man to move out of the house and find other accommodation. The department would help to cover her bond. She found it really difficult to apply for another house and kept being rejected.
35. From 31 August 2006 she lost her house and had been homeless until now. She was ashamed on 14 November 2008 when the police removed her from her friend’s home to Villawood and was upset by the articles in the press and footage of her on television news. The false allegations made about her had destroyed her life. She asked how her neighbours could feel threatened by her when she had been homeless since 2006 and had been living with friends and family. At present she is on medication because of stress and is worried about her children and her grandchildren outside. Her whole family is in Australia.
36. She asked that the tribunal help with her situation as she would like to live in Australia where all her family is. She had lost everything because she had been accused of supplying drugs and had received a 12-month good behaviour bond. A camera hidden in her house had not found anything, nor could the authorities prove anything. She had endured much and wanted her life, house and children back with honour and respect.
37. She wrote, “I want to know why me and my son are locked up, for what reason? I haven’t been in jail at all. I want to know what have I done wrong, on what grounds?”.
38. She said she planned to sue the police and the immigration department for defamation. She was just a single mother wanting to live her life with her children. She was planning to marry next month. She had a good reputation in her community at Airds and had never had a problem with anyone there.
39. In cross-examination the applicant said she had met Mr Nasser Rajab in about 1991 in New Zealand. He is a New Zealand citizen and had been living there at the time. They had been friends for about nine years and had become partners nine months ago, in about April 2008, becoming engaged on his birthday, 8 July, five days after the date of the notice of intention to consider cancellation of her visa. Mr Rajab knows about her criminal convictions and was present when the police arrived on 3 July 2008 in connection with service of the notice. He had, however, known about her history before that because of other circumstances and was concerned about it. He had never been convicted of any offence and she was unaware whether he had ever supplied drugs. She did not know whether he would move to New Zealand with her if her Australian visa were cancelled, and he had not returned to that country since moving to Australia. She agreed that she had previously said they would marry in December [2008] but had not done.
40. The applicant was then asked about a number of her criminal convictions. She had pleaded guilty to goods in custody (charge number H6131027) on 14 March 2001, receiving a bond, but could not understand why she had been convicted. The police had searched her house and taken some things, but she did not know what. Told that the goods included jewels and money (Exhibit R2, p1), she replied that the jewels were hers and the money ($481) represented funds she had raised on behalf of her son’s school. She had pleaded guilty, but said she was not sure whether or not she had been represented by a lawyer on that occasion.
41. On 14 March 2001 she had also been convicted of supplying marijuana. At first she refused to say whether she had pleaded guilty to that charge, saying that she needed a lawyer before answering, then admitted she had pleaded guilty but said she could not recall the circumstances of the offence. She also denied offering the police a bribe (Exhibit R2, p25), saying that the police had offered to pay her to work for them. She had simply been in the wrong place at the wrong time when the police had arrived.
42. Asked if she had in fact begun supplying drugs when she first came to Australia in 1997 and by 1999 was a well-established drug dealer, she did not reply but asked why she had not been imprisoned if she had been dealing in drugs.
43. She agreed that she had been convicted on 11 May 2006 on six counts of supplying prohibited drugs (charge number H24651943). She had pleaded guilty on all counts (Exhibit R3, pp25-26), because she had a legal aid lawyer who told her to plead guilty. In relation to most of the counts she had not, however, been guilty but had only pleaded guilty because she had been told to do so. She had already been punished for some of the offences.
44. Ms Hooper then asked the applicant about the evidence collected through a listening device and camera installed into her house at 24 Teeswater Place, Airds, under the Listening Devices Act 1984 (R4 pp21-34). She said the police were always picking on her and her children and she could not recall ever seeing the letter of termination of her lease dated 18 August 2005 sent to her at Silverwater Correctional Centre (R4 pp29-34). She demanded to see the camera and proof before she would answer any questions about the matters recorded. She did not know if a foil of marijuana was one gram and denied ever selling marijuana from the Teeswater Place premises, adding rhetorically that if the offences could be proved, why had she not been sentenced to imprisonment instead of a bond?
45. She was then asked specifically about Offence 3 (R4 p22) on 6 July 2005 when she had been filmed supplying marijuana to two separate visitors while two infant children were inside the room and watching. She said there was no proof that she had committed the acts described.
46. She could not explain why the police had asked her to become a paid informer for the purposes of identifying her supplier, as she had never dealt in drugs and was a well-respected person. If she had information about others, it was not her business to pass it on to the police.
47. She also denied the supplying offence of 10 July 2005 (Exhibit R4, p24), which noted that for that transaction to take place the applicant had to be woken by her eight year-old son. She said that nothing had happened and that there was no proof. When it was then pointed out to her that she had in fact viewed the video tapes depicting the various drug transactions (Exhibit R4, p24), she replied that the police had found nothing. She could not recall ever admitting that she had once supplied cannabis as a favour to a friend.
48. She said she had never taken drugs, although she had started to use a little in order to cope with stress. She had told a psychologist that she had been using marijuana once a day but no more. She had no problem with the drug, which a doctor had told her had calmed her nerves. When her attention was drawn to the pre-sentence report of 11 May 2006 (Exhibit R3, p23), she admitted that she had at that time been using marijuana for about four years and had been taking it approximately three times a day, but she had reduced her intake and eventually stopped. She refused to say who had supplied the marijuana to her, saying that it had been some friends and she could not give out information or mention their names.
49. She had never spent any money on drugs and had never developed a drug habit. She had received her supplies free of charge from friends when they had it. She could not recall whether she herself had ever supplied drugs to friends. It was not possible to go back and fix the past.
50. Asked if her denials that she had ever supplied marijuana meant that it was more likely that she would re-offend, she stated that she had already been punished and had pleaded guilty although she had not done anything. They had said she did it and there was nothing she could do. Ms Hooper then asked her if she was in fact guilty and she replied that she was. Ms Hooper then asked her why she had spent all that morning denying that she guilty, to which she replied that she could not do anything but that she had not supplied marijuana.
51. Ms Hooper then turned to an incident reported to have occurred on 11 June 1999 at the Airds shopping village (Exhibit R2, pp36-37). The report stated that the applicant had twice threatened one Georgina Horne, who was at the shopping village with her nine year-old son, and had then punched her in the face. It was reported that the victim and the defendant had been friends for about a year but that their friendship had ended as a result of the victim’s being a witness against the applicant’s son in an assault.
52. The applicant said they had never been friends and that she did not know Georgina Horne at all. Ms Horne had accused the applicant of being a drug dealer and had embarrassed her in front of the “cop” (actually a security guard from the Jewel supermarket). She said she had punched Ms Horne with good reason, then corrected herself and said she had simply slapped her once.
53. She said she could not recall the incident described in a police fact sheet (Exhibit R2, p28) stating that she had abused and threatened two police officers and had spat in the face of one of them (this related to charge number H9852783, which resulted in certain convictions, bonds and fines on 14 March 2001).
54. She said she could not recall the episode at all, except that she had not been driving on that occasion as alleged. She could not recall spitting in a constable’s face and said that much had been fabricated by the police. She had not heard that the police had called for backup but thought that they could do that and then make up an incident to justify it. She had not hidden from them when they had come to arrest her. When it was pointed out to her that she had pleaded guilty, she replied that it was in the past, and why bring it up. She did not recall whether she had pleaded guilty or not or whether she had been represented by a lawyer.
55. The assault occasioning actual bodily harm for which she had been convicted on 21 June 2004 (charge number H18887167) occurred because she had been provoked by an undercover officer. She could not recall other details and replied “no comment” when asked about her statement that she had really meant to kill him when she struck him in the face and ran to find something else with which to hit him (Exhibit R5, p23).
56. She denied the offence of stalking or intimidating with intent to cause fear or physical or mental harm for which she was sentenced to nine months' imprisonment (suspended on appeal) on 16 February 2006 (charge number H25236745), saying that the woman police officer she had stalked or intimidated had made up the allegations. She added that she had not been convicted of the offence and said she could not recall whether at the time it was committed she had been on bail for a number of drug offences (Exhibit R11, p29).
57. She agreed that she had been given lenient treatment and a number of chances, but some other people had done worse things. She had never committed murder or paedophilia, for example, and did not deserve to be dragged away in front of the television cameras. She had never touched a police officer in her life.
58. She denied assaulting a 14 year-old and striking another teenager with a baseball bat as described in a witness statement and an incident report (Exhibit R4, pp16-17, 20) and when asked about her admission that she had “slapped” the boy in the latter incident, replied that she could not recall the incident at all and would admit it if she had done it. She had not threatened the victims to make them withdraw the complaints. By saying that she had “fixed up the boys”, she had meant that she had simply advised them to stay away from drugs and had offered them food and other assistance. She also denied the three incidents of abuse of housing department officers recorded in incident reports (Exhibit R4, pp55-58, 77-78).
59. As regards the housing department incident report stating that she had said it was due to her telling people not to fire-bomb their offices that they were still there, she said she had no idea about it and would never say such a thing. She did not know why her housing department lease had been terminated but it had not been because she had been dealing in drugs. The police had found no drugs or anything else.
60. The applicant was then referred to the housing department records (Exhibit R4) reporting that their Campbelltown office had been informed that the applicant had stood over one of the elderly residents in Airds and occupied his property against his will. That had resulted in legal action against the tenant concerned and a substantial debt being placed on his rental account. The applicant had now vacated the premises (Exhibit R4, p50). There had also been “countless allegations made against Ms Brown and her aggressive, abusive and threatening behaviour towards other tenants, housing NSW contractors and other members of the public” (Exhibit R4, p51). The applicant denied standing over other tenants or attempting to move into the houses of others and said that friends had helped her because she was homeless. She had never threatened anyone or invaded their premises.
61. Asked about her claim that she had never had any problems with the housing department (Exhibit A2), she said she had never had any problem until the police had become involved. She had only helped people in Airds and did not know what she had done wrong.
62. The applicant’s attention was then drawn to the witness statement of Detective Inspector Galea of Campbelltown (Exhibit R14) stating that numerous community sources had reported that the applicant had been threatening prosecution witnesses in the murder trial of John Thompson and that the witnesses threatened with violence would not be giving evidence at the trial for fear of reprisals from her (para 10). She denied the allegation and said that Detective Inspector Galea had made it up.
63. She had not been shown the closed circuit television (CCTV) recordings of the brawl at Smithfield RSL Club but had seen some of the stills. Asked whether she had been present at the time, she said “no comment” and denied all the allegations connected with the episode.
64. In relation to the photograph (Exhibit R10) in which she appeared to be swinging at someone or throwing something, she said she had simply been gesturing to her son to urge him not to come near the brawl.
65. She said her son Ben is a New Zealand citizen and lived there until he was aged about six months, returning on perhaps two occasions. He has no contact with his father in Australia. She denied that Ben had seen her supplying and using drugs and using violence. She agreed that she had influenced her son Prince and that he had many convictions, but said they were incurred when he was young. He had been “naughty” but she had never allowed him to do those things or to offend against the law.
66. She could supply a good environment for Ben, but the police had been harassing him since he was young. She denied the intelligence report (Exhibit R14, annexure 1) that she had assaulted her son Matthew in full view of the public at the Airds youth community centre, saying that she had simply growled at him and told him to be good.
67. She said her siblings in Australia work in factories or tyre shops. Her brother and her former sister-in-law Dora had given her the funds to enable her to undertake two of her overseas trips. She denied a press report that she had announced her intention to keep the present proceedings going in the courts for years.
68. By way of re-examination the applicant said she wished to apologise for what had happened. She respected the police and wanted to work hard and move on. She asked to be forgiven if she had done wrong. She would like to work with children and youth in the community, and perhaps undertake a TAFE course to prove herself and do the right thing.

Observations on the applicant’s evidence

69. The applicant was a voluble witness given to making long and unresponsive replies to straightforward questions. Sometimes she answered in English and sometimes in Samoan through the interpreter. At first I allowed some latitude towards the untranslated discussions she was having with the interpreter, but the problem soon grew out of hand and I directed the interpreter to translate everything the applicant said.
70. Throughout her evidence the applicant maintained the position that she was the victim of police harassment and was innocent of any wrongdoing. “I’ve lost everything because I have been accused for supplying drugs” (Exhibit A2); “I want to know why me and my son are locked up, for what reason? I haven’t been in jail at all. I want to know what have I done wrong, on what grounds?” (part Exhibit A3). Asked whether she was a well-established drug dealer by 1999, she replied by asking why she had not been locked up if she was dealing drugs. She had pleaded guilty only because the police had not found anyone else at the scene.
71. At one point she refused to say whether or not she had pleaded guilty to certain drug charges detailed in Exhibit R2, saying that she would not answer the question before consulting with her lawyer (she had no lawyer at the proceedings).
72. She denied guilt for the offences for which she had been convicted, even when she had been legally represented, had been recorded on videotape committing them and had viewed the tapes herself. She said that her lawyer had told her to plead guilty even though she was not, an implausible claim.
73. She claimed inability to recall the circumstances of drug charges or of an attempt to bribe a police officer. Indeed, on at least 15 occasions she replied that she was unable to recall events that were noteworthy and that she would be likely to remember. Twice she replied “no comment” in response to material questions and refused to say who had supplied her with drugs, stating that she could not give out that information, as if it were somehow protected by privacy legislation.
74. In addition to the implausible answers instanced above, the applicant also claimed that she had never spent any money on drugs and had never had a drug habit, although at other times she admitted using marijuana three times a day and had given the probation and parole officer, Ms Campbell, in 2006 a history of using cannabis daily for the previous four years (part Exhibit R3).
75. The applicant’s evidence was that she had never worked in Australia, nor, it appears, has she ever been the dependant spouse or de facto of a person who was working. She had been supported from the outset by Centrelink payments and benefited from public housing. Despite that modest legitimate income for herself and her young son Ben, she managed to travel overseas on 13 occasions between 1997 and 2002, including four times in 2000 and five times in 2001.
76. Asked how she could afford to do so, she explained that in her culture relatives and friends help one another financially. When further asked which relatives and friends paid her overseas travel expenses, she said that her brother and her sister-in-law Dora had paid her fares on two occasions. Given her evidence that her siblings in Australia were working in factories and tyre shops, that claim might in itself not be easy to accept, but in any event it leaves unexplained the 11 other overseas visits.
77. Her evidence about her relationship and engagement to Mr Rajab differed from his. She said they had met in New Zealand in 1991 when he was living there. He said they met in 2001 in Campbelltown and that he had never been to New Zealand. She said she was unaware if he had ever supplied drugs, he admitted that he had been sentenced to 18 months' imprisonment and had been released in April 2008, at the time when they had become partners. She said he had no criminal record, he admitted to the 2006 conviction and did not contradict Detective Inspector Galea’s evidence that he has a long criminal record dating back to 1983. She said he had no children, he said he had two, one aged 16 and one whose age was not stated, but is still living with her mother. She claimed he was a New Zealand citizen, he said he was not. These inconsistencies were put to Mr Rajab, but he offered no explanation for them. Ms Hooper also raised them in her submissions, but Mr Rajab did not comment on them in his. It is possible that she thought Ms Hooper’s questions about Mr Rajab’s New Zealand origins and citizenship related to Benjamin’s father, Mr Filipo, although it was made clear that they concerned Mr Rajab. There was plainly no such confusion about the other questions, however (digital audio transcript 22 January 2009, 10:58-11:10).
78. Her numerous implausible claims, evasions, inconsistencies, pleas of poor memory and denials of the undeniable make it impossible to treat the applicant as a reliable witness.

Applicant’s supporting witnesses

79. Mr Brian Garven at the hearing adopted his statement dated 17 November 2008 (part Exhibit A3) stating that he had known the applicant for a few years as an honest, trustworthy and reliable person. The applicant had helped him in more ways than one, taking him into the family home a few times for a shower, a cooked meal and a bed. She is a kind and loving person who is the mother-figure in his life (better than his own mother) and is kind and supportive. She would quite often pull him up and into line if he was doing something wrong or irresponsible. She had never tried to stand over him or intimidate him.
80. Asked about her pulling him up if he was doing stupid things, he admitted that he had been charged with fraud, resisting arrest and assault, but denied any drug charges. The applicant had made sure that he attended court and dealt with the charges honestly.
81. He had never asked the applicant if she had been convicted of any offences and did not know if she had. He had known her to smoke marijuana to relieve stress and to relax, however. He knew that it was illegal, but added, “What’s wrong with it? God made it”. He was a cannabis user himself but did not obtain his supplies from the applicant.
82. Mr Garven would sometimes smoke it with her, about once a week. On those occasions there could be a number of her sons present, but the youngest, Ben, was “usually outside playing”.
83. An Airds resident, Ms Kathryn Ledbrook, adopted her statements of 11 August 2008 (G p93) and 15 November 2008 (part Exhibit A3) in which she described how the applicant had introduced herself to her at a time when she was receiving few visitors and invited her for coffee, saying that nobody should be alone. She thought the applicant is very misunderstood, partly because her English was not the best initially. She had done nothing but help people with her time, money and support, but in return those people had turned on her. People use her name as an excuse to move out of Airds.
84. The applicant’s inability to convey her feelings in what we call a civilised manner is misinterpreted as violence and anger, but it is frustration and pain. The applicant is not a saint but she is a great mother and should not be judged by her appearance, in that “she looks intimidating and scary tough”. Underneath she is a kind, soft, caring person. She was enriching the lives of her friends and family with her culture. Her son Prince had been “a terrific mentor to the youth”.
85. Although the applicant and her son had done wrong in the past, they had been punished under our law and had paid their debt to society.
86. While on paper the applicant and her son might sound unworthy, Ms Ledbrook interacted with them daily and could state that they are worthy, kind, loving and respectful people who deserved to stay in Australia.
87. In cross-examination Ms Ledbrook said she had never seen the applicant intimidate anyone or use drugs. She did not believe the applicant had drug-dealing convictions and would be surprised to learn it. Asked what would make her believe it, she repeated that she did not believe it and that it was hearsay.
88. The applicant had befriended her in July 2005 when Ms Ledbrook had cancer and spent much of her time inside. When it was pointed out to her that in July 2005 audio and video surveillance devices showed her engaged in drug dealing, Ms Ledbrook said she was surprised by all of this but that it did not change her view.
89. Miss Anastasia Lui adopted her letter dated approximately 2 November 2008 (part Exhibit A3) in which she apologised for the trouble the applicant had caused and acknowledged that you (presumably the authorities) “are getting really frustrated with her”. She was really sorry for all that the applicant did to lead to the decision to cancel her visa. But she thought it was rude to detain the applicant in the presence of television cameras. She asked that the applicant be given a second chance.
90. Miss Lui appeared to be very young, but it was not until cross-examination that it emerged that she is only 11 years old. She repeated her apology for the applicant’s conduct, but when asked about the “trouble” she had caused, replied that she did not know what it involved.
91. I accept that Miss Lui is fond of her aunt and would not like her to be removed to New Zealand. Beyond that, I question the benefit, indeed the propriety, of calling an 11 year-old child to give character evidence in this kind of case.
92. The applicant also tendered a number of letters of support (part Exhibit A3). One was from Ms Raewyn Leota, administrative assistant at the Workventures local enterprise centre at Airds, who said that the applicant was active in supporting the youth of the community and trying to make Airds a better place. She was a committed resident always ready to help her community and a highly valued member of it.
93. Paul and Melissa Hiron wrote that they had read the press reports of the applicant’s activities but had never witnessed any criminal behaviour or violence. They thought the Brown family were friendly, social and family-oriented people who had been wrongly judged by the press and some Airds residents.
94. Sarah Allan (mentioned as an associate of the applicant’s in Exhibit R13) described how when she was a young girl with no parents, the applicant had taken her in as her own child. She regarded the applicant and Prince Brown as role models. Now a mother of two, Ms Allan did not think she could have coped as a mother without the applicant’s help.
95. Erika Dougall said that she had never met a more loving mother to her children and a more loyal and faithful friend and neighbour. The applicant had offered support and encouragement to her at the time of her separation and divorce.
96. The applicant’s former sister-in-law Dora Marinopoulos knows the applicant to be very outspoken but thought it would be sad if she were to leave Australia. She knew there had been a great deal of bad publicity about her but thought it was out of proportion.
97. Kirsty and Michael Chmielewski wrote that they had never had any problems with the applicant or been intimidated by her, regarding her as an outstanding mother.
98. Michelle Sutton also knew the applicant to be a good mother and grandmother, always willing to help the community. She had helped Ms Sutton's children’s father to recover a stolen bicycle “with no drama involved”.
99. Deborah Dawe said that as a single mother with a young child, the applicant had come to her with offers of help if she needed it. She regarded the applicant as a good friend and would vouch for her character any time.
100. Mariam Saleh remarked on the applicant’s positive attitude towards her as well as others. She found it hard to see the image that had developed around the applicant.
101. Glenn Mayhew had always found the applicant to be a pleasant person who had tried to become an integral part of the Campbelltown community.
102. Phillip Muuda wrote that he had known the applicant for almost 10 years and she had always helped him in his time of need. They had also helped local residents of Campbelltown and were well known in the community of Airds.
103. Judy Moore had always found the applicant to be a pleasant and friendly person who had nothing but respect for the elderly in the Airds community. She had never witnessed the applicant being unsavoury or aggressive towards anyone.
104. Kiri Trieblmyer had likewise never known the applicant to be undesirable, threatening or aggressive towards anyone on the Airds community. In fact she used to help with talking to the Samoan youth when they were in trouble.
105. Charlie Mansour, a shop owner in Airds, said the applicant “is a very nice and respected woman but I suppose everyone has their moments. She would never hurt anyone unless defending herself, family or friends. I suppose that is why she’s where she is right now”.
106. There were several other letters from unidentified persons with illegible signatures, and a petition bearing 81 signatures and stating that the signatories were all concerned about the applicant’s visa being cancelled. They all believed that she was of good character and would make a model citizen.
107. As Exhibit 4 and part of Exhibit A3, the applicant also tendered copies of six media reports and one police press release conveying the opposite impression of her and her son. A Macquarie network item reported the New South Wales Police Commissioner, Andrew Scipione, as stating that:

...
This woman and her son are responsible for a number of robbery and drug offences and have been terrorising the community of Airds for years – and police have had enough .... Anyone who comes to live in New South Wales has to abide by the laws of this state.
...

108. An item from the Samoa Observer quoted Mr Scipione as stating that:

...
People who do not respect the laws of this country do not deserve to enjoy the privilege of living here .... Since arriving 11 years ago this woman has accumulated a long criminal history for offences including drug supply, assault and intimidation .... They are well known to police, well known to various government departments and well known to the people of Airds – who, no doubt, will be happy to see the last of them.
...

109. Another item quoted Assistant Commissioner Frank Menelli as describing the pair as serial violent offenders, adding that:

...
This mother and son have been involved in intimidating, assaulting and drug supply and police have been continually arresting them.
...

110. A comment posted by a person self-described as “part Samoan” stated that he or she had to say:

... that this mother and son combo are a disgrace to the whole Samoan community in Australia. The govt should have deported her years ago .... The majority of us Samoans are a friendly easy-going Christian people who love living here and contributing to Australia. There will always be a few bad eggs and it’s good to see the bad ones dealt with.
...

111. A Daily Telegraph item headed “Samoan Mother and Son from Hell” stated that their visas had been cancelled “for destabilising an entire Sydney suburb”. The report stated that among the allegations against them was forcing housing department families from their homes. A police officer was quoted as saying that, “They would simply walk in and tell everyone to leave and take over the house. People were too afraid to complain”. The item continued:

...
Residents who lived near the pair were still too afraid to give their names yesterday, fearing retribution. She’s got a lot of friends. They’ll come burn my house down, one resident said ... she chased a bloke out of the pub with an iron bar because he owed her money for drugs once.
...

112. An article in the 11 December 2008 Daily Telegraph (Exhibit A4) quoted the applicant as saying, “I’m proud to be an Australian. We’ll fight this all the way”. According to the report, she went on to add, “I’ve never been found guilty of anything. Not that I know of .... It’s all gossip and a little copper trying to make a name for himself”.
113. The basis on which the applicant tendered those reports, and the inferences that she expected the tribunal to draw from them, are not clear. Presumably, however, they are meant to be examples of what the applicant claims are the false allegations that have been made against her. Having been tendered and admitted, however, they are evidence for all purposes, subject to relevance and weight.
114. The applicant’s petition (part Exhibit A3) makes no mention of her encounters with the criminal law. For the most part the letters of support, apart from the one from her niece Anastasia, reveal no awareness of the applicant’s criminal history or of her record with the housing department or else are in denial about them.

Respondent’s additional evidence

115. In addition to the G documents, the respondent relied on additional evidence obtained by way of summons. Parts of it have been referred to above. The respondent also called three police witnesses.
116. Detective Senior Constable Michael Mannah described in his affidavit (Exhibit R6) how he obtained CCTV footage of a brawl at the Smithfield RSL Club on 6 June 2008. The applicant and her son Prince Brown were identified from the footage as a result of a station memo being circulated. They were subsequently charged with affray and are due go to trial at Fairfield Local Court on 17 March 2009.
117. The witness tendered a CCTV disc (Exhibit R7) and indicated a number of points at which the tribunal could view relevant material. He also tendered three stills taken from the footage, Exhibits R8, R9 and R10. Exhibit R10 showed the applicant apparently swinging at someone or throwing something.
118. The CCTV footage was not shown at the hearing and there is no clear evidence to show that the applicant has actually viewed it or had the opportunity of doing so. In those circumstances procedural fairness requires that it be given no weight, on the principles stated in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at 95. The stills may, however, be taken into account, as they were shown to the applicant.
119. Senior Constable Camille Alavoine, information manager within the intelligence unit, Campbelltown local area command, in her statement (Exhibit R12) and oral evidence, outlined the sources and methods she used to compile a POI (person of interest) profile of the applicant on 21 November 2008.
120. She explained the meaning of the various prefixes (U, E, I and H) used to identify various classes of information source and how reports are generated. The profile listed the applicant’s key associates and criminal history. A summary of intelligence history listed 63 intelligence reports and was followed by this intelligence assessment:

...
In summary, BROWN’s intelligence revolves around drug supply and intimidation within the local Airds community since 1999 to present. BROWN’s intimidation ranges from verbal threats of violence to actual acts of violence (physical assaults and malicious damage) against those who she perceives cause her grief. This included government authorities (NSW Police, Department of Housing).
...

121. A detailed statement of her criminal history was followed by a threat assessment, which reads:

...
Ongoing reports of threats, intimidation, physical violence over the past 10 years against members of the public, crown witnesses and police officers. BROWN appears to have no fear or respect for authority.
...

122. Finally, a detailed intelligence assessment described that applicant as “a dominant personality who appears to have a desire to ‘control’ the local community”. The assessment made a number of points in summary, including:

...

• will use other persons (suspected to be family members, specifically BROWN’s sons) to commit offences of an intimidatory type (E 24642377)
• will openly and loudly abuse local community members, calling them dogs if she believes they have provided information to police – another form of intimidation (E 32006340)
• whilst there are several reports made by members of the public claiming to have been assaulted, victimised, threatened by BROWN, most wish only for a record to be made, usually because of fear of retribution (E 23213258). It is also suspected that there are many more within the Airds local community that have not reported the assaults, intimidation and harassment committed by BROWN.
• Example of assaulting male Police Officer (E 18305648 03/09/03)
• Example of assaulting a female outside Campbelltown court house because she claimed they were looking at her (E 12166989 12/12/00)
• Intimidation campaign by Maria and her son Matthew against an Airds local in 2005 saw that person move immediately out of the area. The local had his vehicle fire bombed (E 24642377) then several days later an incendiary device was thrown into the victim’s home causing extensive damage to the kitchen (E 24118952). Matthew was charged with the latter, however the matter was dismissed at Bidura Children’s Court.

...

123. The prefix “E” refers to what is termed a standard report on the Computerised Operational Police System (COPS) database.
124. In cross-examination Senior Constable Alavoine acknowledged that the police had received a negative report from Samoa (ie, not showing any criminal convictions), but added that it was not clear what name the applicant had used when she had lived in that country. The sources marked “I” (intelligence reports) were sometimes hearsay but sometimes factual. The reports were not mere allegations but were sometimes facts.
125. Detective Inspector Con Galea, Crime Manager at Campbelltown local area command described in his statement (Exhibit R14) the strategic management position he holds and his responsibility for the development and management of criminal investigations and crime reduction strategies in the area.
126. The statement outlined the circumstances of the applicant’s various convictions and offered as another example of the applicant’s propensity for violence and intimidation an intelligence report dated 24 October 2007 in which:

... information has been supplied by numerous community sources stating that BROWN has been threatening crown witnesses in the murder trial of John THOMPSON. THOMPSON has been charged with the murder of Fallon BAKER and that matter was set down for trial at Sydney Supreme Court on 12 November 2007. It was revealed in this intelligence report that those witnesses threatened with violence will not be giving evidence at that trial for fear of reprisals from BROWN.
...

127. Other information received spoke of community unrest generated by a power struggle in the suburb of Airds between the Aboriginal community and the Pacific Islander community revolving around the drug trade. The applicant was believed to be a significant player in the Airds drugs trade and the general community were intimidated by her and her two sons Prince and Matthew.
128. The statement concluded by saying that the “vast and extensive intelligence holdings” relating to the applicant maintained by the police predominantly consists of information provided by members of the public who are often too afraid or intimidated to make an official complaint to police as a victim or witness to criminal acts perpetrated by the applicant and her sons, for fear of reprisal. That had led to a significant disproportion between the number of charges and criminal convictions in relation to the number of intelligence reports. That was the reason there had been a limited number of prosecutions involving the applicant.
129. At the hearing Detective Inspector Galea explained that Airds, which consists mainly of housing department accommodation, has a large majority population of Pacific Island and Aboriginal people. According to intelligence, the applicant was a major dealer, and when there is a major dealer, competitors may be forced to pay a percentage of their takings to that dealer or face violence.
130. There had been few drug intelligence reports relating to Airds since the applicant and her son had been detained in Villawood. Violent assault and robbery had ceased and there had been a reduction in the drug trade and social tension. The applicant had in the past taken over the residences of others by agreement or force, and if she were released that would continue.
131. This was a high profile case and the outcome was relevant to the question of general deterrence. The applicant had escaped imprisonment and therefore appeared to operate with impunity. Visa cancellation would have an immediate impact on the Pacific Islander population and other non-citizens. People would feel safer and would be more likely to report crimes. The demand on police resources would be much reduced.
132. The applicant claimed to be the victim of a police vendetta. While it was true that she was a target of police attention, that was because she had been identified and profiled in relation to criminal activities. She was the subject of investigations but not of a vendetta.
133. The disproportionality between the number of intelligence reports and the relatively small number of charges brought stemmed from the reluctance of victims to complain because they had to live in the area. Prosecutions became impossible because the applicant interfered with prosecution witnesses, leading to a higher incidence of crime and people generally feeling unsafe.
134. The applicant’s fiancé Nasser Rajab was now selling drugs from a new address. He had an extensive criminal history, including drug offences, dating back to 1983.
135. Cross-examined by Mr Rajab, Detective Inspector Galea agreed that the crime commission had not taken proceedings to seize the applicant’s assets or money but added that it was because she had no assets to seize. She would not necessarily have funds on hand that could be sequestrated.
136. Some types of crime had dropped since the applicant and Prince Brown were detained. There had been no reports of aggravated robbery in the Airds area since then.

Psychiatric and psychological evidence

137. The only psychiatric or psychological evidence as such is a brief letter dated 27 July 2008 from Ms Leonie Parker, a psychologist (G p95), stating that the applicant has been attending regular counselling since January 2008 (with what frequency is not stated). Ms Parker stated:

...
From my perspective, Maria is reliable and honest but does become confused particularly when she is anxious. Maria appears very keen to do the right thing. It is my understanding Maria has six children and four grandchildren living in Australia and therefore strong ties to the community.
...

138. Actually, the applicant said in evidence that two of her six children were given up for adoption and live in New Zealand. The letter indicates no awareness of the applicant’s criminal record or of her attitude of denial towards it, nor does it attempt to assess the risk of recidivism.
139. There is also a pre-sentence report prepared by a probation and parole officer at Campbelltown, Ms Trish Campbell, dated 11 May 2008 (part Exhibit R3, pp23-24). The report has this to say about the applicant’s drug history:

...
Ms Brown has given a history of using cannabis for the past 4 years and up until her arrest stated that she was using it every day but has now reduced this to 3 or 4 times per week. During the course of the preparation of this report Ms Brown was referred to the Community Health Drug and Alcohol counsellor. The counsellor’s opinion was that Ms Brown does not believe that she has a problem with the drug. The counsellor believes that she does have a problem but that Ms Brown is in denial about how much this affected her life or her family.
...

140. The report notes that the applicant did not agree with the charges and that she denied selling drugs. The applicant was deemed suitable for a medium to high level of intervention by the Probation and Parole Service, commensurate with the assessed risk. The individualised case plan would include strategies to address the criminogenic need constituted by her drug problems. She could be referred to the drug and alcohol addiction program and the relapse prevention program, although her literacy problems could be an impediment. Her drug problems were thought to make her unsuitable for a community service order.

Applicant’s submissions

141. On behalf of the applicant Mr Rajab submitted that the applicant had never claimed to be above the law. The references she had tendered contradicted the claims that she had been dominating the Airds area, while the police intelligence reports were hearsay that could not be confirmed. The applicant was the subject of a vendetta.
142. Until now, as a single parent, she had been unable to work. If released they plan to leave the area and rent accommodation elsewhere, having no need for housing department assistance. The applicant had no assets and no money and could not be a big player in the manner claimed by the respondent.
143. The tapes of the fracas at Smithfield RSL showed that her actions there were taken in self-defence. Community support for her was high. Shopkeepers and others were asking if she was returning to the area. She denied the charges brought against her because she was not a drug supplier, although she did have drugs in her possession. She had pleaded guilty because she had no choice, given the amounts involved.
144. If the applicant had been a serious offender she would have been imprisoned. The police and the housing department were scapegoating her. She had no criminal record in New Zealand or Samoa but was being harassed in New South Wales on the basis of her appearance and cultural tattoos. She was a family-oriented woman who had kept him away from relapsing into drugs.
145. Her removal from Australia would be a great loss to all, including her grandchildren. Telephone contact would be no substitute and she deserved one more chance. She would not re-offend.
146. His proposal of marriage to her had nothing to do with cancellation of her visa. If the decision were affirmed he would have to choose between her and his own family, who are all in Australia.
147. The applicant was established here and he could not believe that she was a major drugs player – if she were, money should have been found. She apologises for her past, and will find employment and make a new start. He would himself obtain employment. He has been here for 40 years. He believed they could both prove themselves.
148. In reply Ms Hooper said she had no comment to make in relation to the applicant's submissions but noted that the rest of Mr Rajab’s address consisted of evidence.

Application of the Law and Findings of Fact

149. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(a) and (c)(i) and (ii), the applicant passes the character test. The application of the character test is by reference, first, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs 1999 FCA 1277; (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:

...
The concept of “good character” in section 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry...
...

In Re Msumba and Department of Immigration and Multicultural Affairs [2000] AATA 87; (2000) 31 AAR 192, the Tribunal said, at paragraph 37:

...
The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).
...

150. On the other hand, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness (Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780 at 781).
151. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that the applicant does not pass the character test, I must consider whether to exercise the discretion in s 501(2) to cancel the applicant’s visa. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
152. In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case is paragraph 1.9(a), which directs the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law.
153. Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed.
154. In this case the applicant fails the character test as enunciated in ss 501(6)(a) and (7) because of her sentences of 12 months' imprisonment imposed on 11 May 2006.
155. As regards past and present criminal conduct within the meaning of s 501(6)(c))i), she had repeatedly over the years from 1999 to 2006 been convicted of offences of violence, intimidation and drug dealing, incurring several bonds and fines and three custodial sentences, two of 12 months concurrent and one of nine months, all of them suspended.
156. The evidence from police intelligence shows a continuing pattern of similar behaviour. Housing Department records, including at least seven reports of separate incidents by Housing Department officers and numerous complaints from public housing residents paint a similar picture (part Exhibit R4).
157. There are no sentencing remarks available that might point to the existence of mitigating circumstances.
158. The applicant herself does not advance any such circumstances, her approach being a general denial of all guilt and responsibility. She has taken the same approach in another forum. At a hearing before the Consumer, Trader and Tenancy Tribunal on 17 July 2006, she told the tribunal that she had been found not guilty of the drug dealing charges brought against her. In fact she had pleaded guilty and had been convicted and sentenced (Exhibit R4, pp39-41). Her explanation for that false denial was that she was by herself and that there were 10 police officers there. As a result of her behaviour she was declared ineligible for public housing (Exhibit R4, pp48-49). Her explanation at the hearing for being declared ineligible was that it was because she had done what the department had told her to do, thus seeking to blame the department.
159. As regards past and present general conduct within the meaning of s 501(6)(c)(ii), the criminal convictions and criminal conduct described above indicate contempt or disregard for the law or for human rights within the meaning of para 1.9(a) of Direction No 21. There are also the unresolved charges (Direction No 21, para 1.10(a)) of affray that are set down for hearing in March 2009 that are consistent with the applicant’s pattern of conduct.
160. Under this heading the tribunal is also to consider recent good conduct. I accept Ms Ledbrook’s evidence concerning the applicant’s acts of kindness towards her when she had cancer in 2005 and of the gratitude Ms Sutton and Ms Allan feel over the help she gave to them as single mothers. I also accept the assurances by the others who wrote letters of support that she has been friendly and helpful towards them.
161. It is clear that the applicant can be a good neighbour to some people, and very supportive on occasion, but that does not compensate for the pattern of drug-dealing and lawless violence and intimidation disclosed by the remainder of the evidence.
162. That evidence includes the Housing Department memoranda from the Campbelltown team leader dated 20 February and 26 February 2008 reporting that the applicant had recently stood over one of the elderly residents in Airds and occupied his property against his will. At the hearing she denied ever having forced anyone to leave and explained that it was a case of friends helping her.
163. That evidence also included records made of the applicant’s conduct towards department officers, including sustained abuse, refusal to leave the office, threats and threatening behaviour and threatening language alluding to fire-bombing of the office (Exhibit R4, pp55-58, 75, 77, 83).
164. Also to be placed in the balance are the numerous complaints against the applicant by other public housing tenants reporting physical assaults, abuse, threats, and general harassment (Exhibit R4, pp67-74). One tenant gave the department notice of intention to vacate saying that there was too much violence in the area and that the applicant was causing all the trouble. Her husband had witnessed a child being bashed with a bat but he would not give a statement to police while still living in Airds. The applicant had arranged for local children to throw stones at her house the previous night. She had not called the police as she was frightened of reprisals from the applicant (Exhibit R4, p70).
165. Another tenant telephoned to inform the department that she had abandoned her home and wanted to hand in the keys to the office. She had fled in fear of her life stating that she was sick of being intimidated and physically abused by the applicant. She was too afraid to contact police because if the applicant found out she would kill her (Exhibit R4, p74).
166. A department briefing note (Exhibit R4, p88) recorded that:

...
Families at 16 and 24 Teeswater Place Airds causing major damage to properties. Terrorising tenants, physical abuse and intimidation. As a result of this activity tenants are continually requesting priority transfers, abandoning their homes and are living in fear. We have several major fires and home invasions with claims directed at Maria Brown and her son Prince and various visitors to both properties. Miss Fiti and Maria Brown are sisters.
...

167. The note also records a number of fire-bombings, mentioning that “It is our understanding that Maria Brown also burned out [redacted] where a rival drug ring was operating. We understand that fire at [redacted] was also as a result of the actions of Maria Brown” (Exhibit R4, p88).
168. None of those reports constitutes direct evidence in this case and one must assume that their quality is variable. Nor can one rule out the possibility that some reports may be malicious falsehoods. Nevertheless, when there is a substantial number of reports from a wide variety of sources all detailing similar conduct, the probability that the picture created is true markedly increases. In this instance there are 63 such reports, most of them in the last three years (part Exhibit R12, POI profile, p4).
169. On the basis of the evidence I therefore find that the applicant fails the character test under ss 501(6)(a), (c)(i) and (c)(ii) or any one or more of them.
170. I must therefore consider whether to exercise my discretion under s 501(2) to decide whether or not to cancel the applicant’s visa. In exercising that discretion, the tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

...
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
...

171. Paragraph 2.3 sets out the primary considerations:

...
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
...

Paragraph 2.4 explains:

...
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.
...

172. Examples of what the government views as serious offences are set out in paragraph 2.6. This includes, in subparagraph (f), crimes of violence against persons. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
173. With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.11, general deterrence, “aims to deter other people from committing the same or a similar offence”.

Protection of the Australian Community

174. The first issue to be discussed under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on this tribunal, states in paragraph 2.6(a) that trafficking in illicit drugs, and in paragraph 2.6(f) that crimes of violence against persons, are to be treated as very serious.
175. In this case, the applicant has been convicted on two separate occasions of supplying prohibited drugs, the most recent conviction (on 11 May 2006) comprising six counts. She has also been convicted on two separate occasions of assault occasioning actual bodily harm, as well as intimidating a police officer in the execution of his or her duty (twice), assaulting an officer in the execution of his or her duty, resisting an officer in the course of his or her duty and stalking or intimidating with intent to cause fear of physical or mental harm. Three of the offences attracted custodial sentences, although they were suspended. Pursuant to Direction No 21, such offences are to be regarded as very serious.
176. The respondent submitted that the fact that some of the applicant’s victims were police officers executing their duties was an aggravating factor, relying on Re Tran and Minister for Immigration and Citizenship [2008] AATA 82 at para 48.
177. The extent of the applicant’s criminal record is relevant to assessing the seriousness and nature of her conduct (Direction No 21 at para 2.7(a)). In this case, the applicant’s criminal record aggravates the seriousness of her offending. She has multiple convictions spanning the period between 1999 and 2005, her first offences taking place less than two years after she first arrived in Australia.
178. The tribunal is also to take into account any relevant matters provided by the applicant as mitigating factors (para 2.8(a)). They should be viewed in the context of the applicant’s entire record (Green v Minister for Immigration and Citizenship [2008] FCA 125 [25]-[26]). In this case, the applicant did not advance any mitigating factors, her basic approach being categorical denial of all guilt or wrongdoing, despite her many pleas of guilty. I note, however, in relation to her conviction for stalking or intimidating with intent to cause fear or physical or mental harm on 16 February 2006 that on appeal Blanch CJ thought the fact that it was an experienced female police officer who was the subject of the offence placed it towards the bottom end of the scale. His Honour confirmed the conviction and sentence but suspended the term of imprisonment (1 June 2006, G pp66-67).
179. The next issue for the tribunal to consider is the risk of recidivism. The applicant’s pattern of re-offending suggest an unacceptably high risk of recidivism. The threat of imprisonment has not deterred her from repeated offending. She has been given many chances, by way of good behaviour bonds and suspended sentences. She acknowledged at the hearing that she had received lenient treatment. That lenity did not, however, prevent her from committing further criminal acts. Indeed, she repeatedly claimed that her success in avoiding having to serve a custodial sentence proved that she was innocent.
180. The applicant's overall criminal history is highly relevant in assessing her risk of recidivism (Direction No 21, para 2.10). Because she has several previous convictions in Australia, she must be considered to have an increased risk of recidivism on that criterion alone (para 2.10(b)). As President Mathews J said, “Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending” (Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51]).
181. While there are some gaps between the applicant’s convictions, she had demonstrated that a substantial period since an earlier conviction is not a reliable indicator that she will not re-offend (Direction No 21, para 2.10(b)).
182. She enrolled for the YWCA personal support program, aimed at working with people who have barriers and obstacles preventing them from attaining long-term employment. The caseworker, Ms Kimber, reported on 21 August 2008 (G p94) that she had been a willing participant. The role of being a good mother and grandmother was of the utmost importance to her. To enable her to continue her progress, it was imperative that she remained local to her family and had continued access to her support networks.
183. She has also been attending psychological counselling since January 2008 (G p95). The psychologist, Ms Leonie Parker, seems hopeful about the applicant's prospects but does not attempt to estimate the risk of recidivism and, like Ms Kimber, does not actually claim that the applicant has made substantial progress.
184. She remains in denial about her drug problem. There is no evidence of remorse, indeed she insists that the allegations made against her are false. It is settled law however, that in evaluating an applicant's criminal record and recidivism risk, the tribunal is not at liberty to impugn any convictions recorded or sentences imposed: Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313 at 325-326; Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 42 ALR 209 at 215-216; Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234 at 240, 243, 244-245. The applicant clearly fails to appreciate the seriousness of her conduct and takes no responsibility for her actions. She also seeks to blame the Housing Department for her ineligibility for public housing.
185. The applicant has never had any employment in Australia and appears to have no marketable skills. She says she is engaged to marry Mr Rajab, but previously had said they would be getting married in December 2008, but did not.
186. The applicant has had several opportunities to demonstrate that she can be trusted to be a law-abiding member of the community. She has continued to betray that trust.
187. The pre-sentence report implies (part exhibit R3, p24) a moderate to high risk of recidivism at the time it was made, and nothing in the evidence gives any ground believing that the risk is any less today. If the applicant were released into the community and free to return to her established position and role in the Airds-Campbelltown area, which she says is her home, there is a serious risk that her previous behaviour would resume. Indeed, given her tendency to view lenient treatment as a vindication of her conduct, its intensity might increase.
188. In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction No 21 paragraph 2.11. The deterrent effect of a particular decision is impossible to prove in advance. The concept can perhaps also be expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community.
189. Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results. While visa cancellation is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does.
190. As Callinan J observed in Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 at 659, “Deterrence may be an end in itself unrelated to a criminal sanction or a punishment. Deterrence can, for example, be an end of the law of tort”.
191. Ms Hooper submitted that while general deterrence is normally a matter of inference from human experience, in this case there is specific evidence on the matter. Detective Inspector Galea was able to state from personal experience that certain categories of violent and drug crime had diminished markedly in the Campbelltown area since the applicant and her son had been detained at Villawood under threat of visa cancellation. He predicted that affirming the decision would act as a significant deterrent to crime among non-citizen groups in the area and would restore public confidence and tranquillity. Ms Hooper contended that the case had attracted much publicity, and setting aside the decision would be a victory for the applicant, showing that she could continue to operate with impunity.
192. I accept that affirming the decision could have some general deterrent effect. While that cannot be a decisive, or even substantial, consideration, it is one that must be taken into account.

Expectations of the Australian Community

193. With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:

...
Visa refusal ... may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.
...

194. It has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner. Historical, economic and other reasons have been advanced for that position: Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766 at [90] to [99].
195. In Al-Kateb, Hayne J observed that in one of its earliest decisions (Robtelmes v Brenan [1906] HCA 58; (1906) 4 CLR 395), the High Court had held that it is an attribute of sovereignty that every nation state is entitled to decide what aliens shall or shall not become members of its community (219 CLR at page 632).
196. Callinan J added that entering aliens are taken to know and accept “as a term of admission” that restraint to the extent necessary to enable deportation to be imposed on them (at p658).
197. At the same time, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]). A further limiting factor is that one should attribute to the community knowledge of the whole of the evidence before the tribunal (Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458, at para 7(m)).
198. In my view the community would expect that the visa of a person with such a serious and sustained criminal record, is at significant risk of re-offending and who shows little evidence of rehabilitation should be cancelled.

The Best Interests of the Child

199. The third primary consideration is the best interests of the child. The tribunal is guided on this question by the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration”. I also note paragraph 2.16 of Direction No 21, which sets out considerations that the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).
200. The applicant has one child under 18, Benjamin Filipo, who was born in New Zealand in November 1996. He is a New Zealand citizen and first travelled to Australia with the applicant in August 1997. Since then he has made several overseas trips with the applicant (G p25), presumably to New Zealand.
201. Benjamin’s father lives in Australia, but as the applicant confirmed in cross-examination, there has been no contact between them.
202. While I presume that Benjamin might prefer to remain in Australia and not undergo the upheaval of moving to New Zealand, there is no evidence to suggest that he would suffer any hardship by doing so. He was born in New Zealand and is a citizen of that country. He has travelled to New Zealand in the past and has relatives living there. There would be no language barrier and cultural differences are minor. He would have access to educational and health services comparable to those available in the Australia: Re Agafili and Minister for Immigration and Multicultural Affairs [2001] AATA 91 at [91]; Re Takau and Minister for Immigration and Citizenship [2007] AATA 1575 at [72]; Re Kelly and Minister for Immigration and Citizenship [2007] AATA 1678 at [126]. At the age of 12, he would be able to adapt to living in New Zealand.
203. On the other hand, it would be in Benjamin’s interests to be removed from the applicant’s Airds domain. Although the applicant denies supplying drugs to users in his presence, the evidence establishes that she has done so. On one occasion Benjamin had to awaken her so that she could perform such a transaction. She has probably also used illicit drugs in his presence. Mr Garven was only prepared to say that when he was smoking marijuana with the applicant, Benjamin was “usually” outside playing.
204. While Benjamin’s best interests are a primary consideration, in cases where there has been serious offending behaviour and little evidence of rehabilitation, the tribunal has in the past held that community protection and expectations have outweighed the best interests of the child: see, eg, Re Zhang and Minister for Immigration and Citizenship [2007] AATA 1617; Re Chor and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 766; Re Qui and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 828; Re Ruano and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1240; Re Hadchiti and Minister for Immigration and Multicultural Affairs [2002] AATA 65.
205. Further, in this case any detriment to Benjamin’s best interests is at least partly offset by the benefit to his interests in removing him from his present environment.
206. At the hearing the applicant said she had two children living in New Zealand who were being raised by an aunt (whether their aunt or hers was not made clear). She did not indicate their ages. It may be noted that although the applicant has six children, the only one she mentioned on her personal details form, whether as under 18 or over, was Benjamin (G pp90-91).
207. The applicant has five grandchildren living in Australia, two of them being Prince’s and three Andrew’s, aged between two months and five years (G p90). There is no evidence from their parents and little evidence of any kind to show the existence of a close relationship, but all appear to be living with both their parents (the position of Prince’s children will be affected by the outcome of his review application). Moves by grandparents are a common occurrence in children’s lives and many children never know all their grandparents. In the absence of cogent evidence of a close relationship, and also in view of their ages, there is no reason to think that the interests of Joselyn (aged 5), Janeice (3), Prince (3), Lorita (2) or Sia (2 months) would be adversely affected by visa cancellation. The applicant also has a number of nieces and nephews in Australia, but their ages were not given and there is no evidence of a close relationship with the applicant such that their interests should be assessed under this criterion.

Other considerations

208. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.
209. The applicant has no business or similar ties to Australia. She has, however, two uncles, three aunts, 20 nieces or nephews and 32 cousins here, as well as her two adult sons and their children. I accept that they would probably prefer that the applicant not relocate to New Zealand. There is, however, no evidence that any of the applicant’s relatives living in Australia would suffer hardship if the applicant should return to New Zealand. They could maintain contact through visits, telephone and the internet, and indeed that appears to be the primary means whereby the applicant currently stays in contact with many of her Australian relatives.
210. The applicant would not be without family support in New Zealand, where she has two children, one uncle, two aunts and 10 cousins.
211. The letters of support and statements from friends and acquaintances suggest in a general way that the applicant has developed ties to her local community during the period she has been living in Australia. Those statements, however, either fail to acknowledge, or mention only in passing, the applicant’s criminal conduct and in some cases express total denial of it. They do not command great weight and are in any event contradicted by the evidence from the Housing Department files and the police intelligence reports referred to above.
212. The applicant and Mr Rajab say they are engaged to be married. The applicant had previously said they were to undergo the ceremony in December 2008, but they had not done so. Mr Rajab said they had not proceeded at that time because they did not want people to think that they were entering into a marriage for the purposes of s 501. That explanation suggests a delicacy of sensibility that is not easy to reconcile with the rest of the evidence.
213. The differences between the applicant’s and Mr Rajab’s accounts of his record and circumstances, have been outlined above and raise some questions about the nature of the relationship. Also relevant to evidentiary credibility on the issue is a police report of a visit to the residence of Maria Fiti (apparently the applicant’s sister) at Ms Fiti’s Campbelltown residence. Ms Fiti had said that the applicant was at 17 Gundowringa Place, Airds, where police located the applicant and detained her. While they were talking with her, the report states, “RAJAB came out of the premises stating that he lived at the address and Brown was his wife” (Exhibit R14, attachment p5). In cross-examination Mr Rajab said he did not remember saying that and was at the premises visiting a friend. Why would he say that, he asked rhetorically, as he did not live there. He then continued, “If I said it, it was probably out of ....”, but did not complete the sentence. That evidence does nothing to enhance Mr Rajab’s credit in relation to the matter.
214. Assuming that the relationship is genuine, however, the evidence does not show that there is any obstacle to Mr Rajab’s relocating to New Zealand to be with the applicant. He says he would prefer not to have to choose between his family in Australia and his intended marriage to the applicant. Asked what he would do if she were removed to New Zealand, he replied that it would take serious thought and that he had not yet crossed that path.
215. In assessing the compassionate claims of Mr Rajab, the tribunal is required by Direction No 21, para 2.17(b) to consider the circumstances in which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship: Re Dumbrell and Department of Immigration and Multicultural Affairs [2000] AATA 443 at [35]; Re Braceros and Minister for Immigration and Multicultural Affairs [2001] AATA 145 at [46].
216. As was stated above, the circumstances in which the parties first became acquainted are the subject of conflicting evidence between them, but it is clear that at the time they became partners in April 2008, Mr Rajab was aware of the applicant's criminal history. His claims, if genuine, would therefore command correspondingly reduced weight.
217. It does not appear that the applicant has previously been warned of the possibility of visa cancellation. Although she has undertaken the YWCA course referred to above, there is little evidence of rehabilitation or recent good conduct and her persistent self-identification as the innocent victim of harassment by police and the Housing Department do not suggest a reformed character. She has never worked while in Australia and appears to have no work skills. She has no offers of employment and has taken no steps other than the YWCA program to undertake work training.
218. The cases referred to above show that in a case of serious and sustained wrongdoing, the primary considerations of community protection and expectations can outweigh the best interests of the child and the other considerations. This is such a case.
219. The decision under review is affirmed.

I certify that the 219 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed: ........................[sgd]..................................

Renee Wallace, Associate

Date/s of Hearing: 22 and 23 January 2009

Date of Decision: 6 February 2009

Solicitor for the Applicant: Self-represented / Mr Nasser Rajab

Solicitor for the Respondent: Ms K Hooper & Mr L Leerdam, DLA Phillips Fox