1702551 (Migration)

[2017] AATA 1415

1702551 (Migration) [2017] AATA 1415 (22 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1702551

DIBP REFERENCE(S):  BCC2016/3743949

MEMBERS:Jan Redfern (Presiding)

Alison Murphy

DATE:22 August 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 22 August 2017 at 9:24am

CATCHWORDS
MIGRATION – Cancellation - Subclass 444 (Special Category) visa – applicant suffering from mental illness – low level criminal offending – allegation of criminal gang links – whether the applicant may or might be a risk to the safety of the community – exercise of discretion in context of Subclass 444 statutory framework – relevance of department policy - impact of illness on offending - hardship to applicant and family

PRACTICE AND PROCEDURE – Fact-finding and sufficiency of evidence – procedure to be adopted where the decision under review has serious consequences – non-disclosure orders and direction under s.378 – s.375A certificate

LEGISLATION

Administrative Appeals Act 1975, s 35
Drugs, Poisons and Controlled SubstancesAct (Vic)
Mental Health Act 2014
Migration Act 1958, ss 5, 32, 48, 101 – 105, 109, 116, 140, 352(4), 358(2), 359A, 362A, 365(2), 375A, 378, 496, 499, 501
Migration Regulations 1994, Schedule 2, r 2.12, r 5.15A, r 2.43(1)(la), Clause 444.511, Clause 444.6

CASES

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

MIMA v Teoh (1994) 183 CLR 273

Shi v Migration Agents Registration Authority [2008] HCA 31

Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93

Tarrant v Australian Securities and Investments Commission [2013] AATA 926

W157/00A v MIMA (2001) 190 ALR 55

References in square brackets denote information that has been omitted pursuant to a written direction and replaced with non-identifying information: s.378(1) of the Migration Act 1958.

STATEMENT OF DECISION AND REASONS

INTRODUCTION

1. This is an application for review of a decision dated 6 February 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 444 (Special Category) visa under s.116 of the Migration Act 1958 (the Act). The applicant is twenty years old and a national of New Zealand. He has resided in Australia since he was four years old. The delegate cancelled the applicant’s visa under s.116(1)(e) of the Act on the basis that the delegate believed the applicant was or may be a risk to the health, safety or good order of the Australian community.

2. The issue for the Tribunal on review is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The first hearing was on 20 June 2017, at which the applicant, his mother, his sister and a former case manager gave evidence. Following a submission on behalf of the Secretary of the Department of Immigration and Border Protection dated 23 June 2017, there was a further hearing on 6 July 2017, with evidence from a senior officer from Victoria Police, a staff from the case management services provider, the applicant and his mother.

4. The Tribunal has decided to set aside the decision under review and substitute a decision not to cancel the applicant’s visa. Our reasons follow.

   BACKGROUND FACTS

5. The applicant first arrived in Australia on a brief trip as a baby, returning in 2001 aged four years old as the holder of a subclass 444 visa.  He was accompanied by his mother and sister and they travelled to join his father and older brother who were already living in Australia. The applicant and his immediate family have remained living in Australia since that time.  His younger brother was later born in Australia and is now an Australian citizen.  The applicant departed Australia for short periods of about three weeks over the Christmas period in each of 2010/11 and 2011/12 and on each return to Australia he was granted a further subclass 444 visa. The current visa was granted on 22 January 2012. The applicant has a three year old child born in Australia, who he sees on a regular basis.

6. The applicant was diagnosed with bipolar disorder when he was 14 years old and he has had several admissions to hospital for his psychiatric condition. As a juvenile he was charged with a number of criminal offences but was not convicted or incarcerated, his most serious offending taking place in 2010 when he was 13 years old. This was followed by a breach of his probation order the following year and two shoplifting charges (without conviction). There was a further shoplifting charge (again without conviction) when the applicant was 18 years old and a conviction for possession and use of cannabis the following year. In June 2016, the applicant was convicted of offences arising from a number of incidents in 2014 and 2015 and was placed on a community correction order for 12 months, requiring him to undertake treatment and rehabilitation during that period. In short, while the applicant was a juvenile he was charged with four offences. No convictions were recorded and he was either placed on probation or good behaviour bonds. As an adult, he was charged with numerous offences, was convicted on two occasions but was not incarcerated. At the time of the cancellation of his visa, the applicant had completed just over half of the community corrections order.

7. On 14 December 2016 a delegate of the Minister sent the applicant a Notification of Intention to Consider Cancellation (NOICC), advising him that the Department of Immigration and Border Protection intended to cancel his visa on the ground that he was or may be a risk to the health, safety or good order of the Australian community.  The grounds for the notice were the charges, convictions and penalties summarised above. A list of those charges and penalties appears at Annexure A to these reasons. Cancellation of the applicant’s visa would require him to return to New Zealand.

8. The applicant’s mother responded on the applicant’s behalf raising a number of issues about his links to Australia, his psychiatric condition and treatment and the hardship that both he and the family would face if he was forced to leave Australia. The delegate was also provided with reports from the applicant’s general practitioner and mental health practitioners about his psychiatric condition and treatment.

9. After consideration of this material, a delegate of the Minister decided to cancel the applicant’s visa. The delegate noted the evidence of the applicant’s criminal convictions and considered he had an extensive criminal history dating back to 2010. The delegate stated that the serious and repetitive nature of the charges and convictions indicated unacceptable behaviour in the Australian community and showed a disregard for Australian laws. The delegate concluded that the applicant’s presence in Australia may pose a risk to the health, safety and good order of the Australian community and that grounds existed for cancellation of his visa under section 116(1)(e) of the Act. Having found that grounds existed for cancellation, the delegate then considered whether the visa should be cancelled. The delegate noted the matters raised in the documents submitted in response to the NOICC but stated that, having weighed all the relevant factors, he was satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel visa.

10. The applicant did not apply for a bridging visa and he has been in immigration detention since this time.

    LEGISLATIVE FRAMEWORK

11. Non-citizens from New Zealand may obtain permission to travel to and stay in Australia under a special category visa, being subclass 444, the criteria for which is set out in s 32 of the Act and reg 5.15A of the Migration Regulations 1994. Relevantly, to be eligible for a special category visa, an applicant must be a New Zealand citizen who holds a New Zealand passport which is in force and is not a behaviour or health concern. The expression ‘behaviour concern non-citizen’ is defined in s 5 of the Act and in essence includes a non-citizen who has been convicted of one or more crimes and sentenced to imprisonment for at least one year, or to periods that add up to at least one year. It also includes a non-citizen who has either been found guilty or acquitted of a crime committed while of unsound mind, or has been removed or deported from Australia or another country or has been excluded from another country in certain circumstances which are not relevant to this case.

12. Special category visas may be cancelled in the circumstances set out in ss 109, 116 and 501 of the Act. The Minister may delegate those powers under the Migration Act to another person (s 496). Section 109 provides that the Minister may cancel a visa if the visa holder gives incorrect information contrary to sections 101 – 105 of the Act, provided the Minister gives the visa applicant particulars of the non-compliance and considers any response to those particulars and any prescribed circumstances. Section 501 provides for the refusal or cancellation of a visa on character grounds. The Minister must cancel a visa if a person does not pass the character test because he or she has a ‘substantial criminal record’ or if the person has been convicted or found guilty of sexually based offences involving children (s 501(3A)). Neither of these applies in this case. There is discretion to refuse or cancel a visa if the Minister reasonably suspects that a person does not pass the character test. The applicant’s visa was not cancelled on this basis. Under s.116 of the Migration Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out[1].

    [1] Section116(1)(g) provides that the Minister may cancel a visa if he or she is satisfied that a prescribed ground applies to the visa holder. Reg 2.43 Of the Migration Regulations 1994 sets out the prescribed grounds and specifically excludes special category visas from those grounds based on a conviction.

13. Relevant to this case, s.116(1)(e) provides that the Minister may cancel a visa if satisfied that:

    the presence of its holder in Australia is or may be, or would or might be, a risk to:

    (i)  the health, safety or good order of the Australian community or a segment of the Australian community; or

    (ii) the health or safety of an individual or individuals;

14. If satisfied that the ground for cancellation under s 116 is made out, the decision maker has discretion whether to cancel the visa. The decision maker must therefore proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances. The Act and Regulations do not specify any mandatory considerations that should be taken into account by the decision maker when exercising the discretion, nor has the Minister issued any directions under s 499 of the factors to be considered. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal should have regard to all relevant matters, including but not limited to, matters identified in the Department’s Procedures Advice Manual - PAM3 ‘General visa cancellation powers’. It is a long established principle that the Tribunal on review is considering the matter afresh based on the material before it and is not bound by the findings of the delegate[2]. It is also well established principle that the Tribunal should have regard to lawful government policy unless there are cogent reasons to the contrary[3].

    [2] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, also referred to in Shi v Migration Agents Registration Authority [2008] HCA 31 at [98] per Hayne and Heydon JJ.

    [3] Re Drake v Minister for Immigration and Ethnic Affairs( Re Drake No 2) (1979) 2 ALD 634 discussed in Tarrant v Australian Securities and Investments Commission [2013] AATA 926 at [19] to [21]

15. The Departmental guidelines cover such matters as:

    (1)the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia;

    (2)the extent of compliance with visa conditions;

    (3)degree of hardship that may be caused (financial, psychological, emotional or other hardship);

    (4)circumstances in which ground of cancellation arose. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control;

    (5)past and present conduct of the visa holder towards the department;

    (6)if the breach relates to a breach of r.2.43(1)(la) by a subclass 457 visa holder - mitigating, compassionate and compelling factors;

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

    (8)whether there would be consequential cancellations under s.140;

    (9)whether any international obligations would be breached as a result of the cancellation, and

    (10)any other relevant matters.

16. Each of these matters is addressed in our consideration below.

    THE REVIEW APPLICATION AND PROCEDURAL ISSUES

17. An application for review of the delegate’s decision was lodged with this Tribunal on 14 February 2017 nominating his mother as the applicant’s representative.  On 16 February 2017 the applicant’s mother advised that the applicant had been placed in immigration detention and on 2 May 2017 a migration agent was appointed to represent the applicant in the review.

18. Under s 352(4) of the Act, the Secretary is required to provide to the Tribunal each document that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.

19. The Tribunal was provided with the department files, which included the NOICC, submissions and documents provided to the delegate in response to the NOICC and the decision of the delegate. The files also included internal working documents of the department which were subject to a non-disclosure certificate pursuant to s.375A of the Act dated 17 February 2017. Section 375A provides that where the Minister has certified in writing that disclosure of a document or information would be contrary to the public interest, the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than the member of the Tribunal constituted to the review.

20. Under 362A of the Act an applicant is entitled to have access to any written material given or produced to the Tribunal for the purposes of the review.

21. On 2 May 2017 the applicant’s representative requested a copy of all written documentation and information currently held by the Tribunal pursuant to s 362A and on 5 May 2017 all documents, except those documents that were the subject of the s 375A non-disclosure certificate, were provided.  These documents were internal departmental working documents contained at folios 1-3 and 37-39 of the Departmental file.  The Tribunal notes that all information in those documents subject to the s 375A certificate that might be considered adverse to the applicant was disclosed in other documents provided by the Tribunal to the applicant pursuant to s 362A and s 359A and by the evidence of Detective Superintendent De Santo at hearing.

22. On 19 April 2017 the Tribunal summonsed Victoria Police to provide a copy of the police summaries setting out the circumstances of the offences found proven against the applicant as an adult. On 5 May 2017 Victoria Police provided un-redacted documents pursuant to that summons.  On 29 June 2017 Victoria Police provided a redacted copy of those documents which were provided by the Tribunal to the applicant.

23. On 22 May 2017 the department provided the Tribunal with a redacted letter from Victoria Police dated 17 May 2017.  Later on the same date the department provided the Tribunal with an un-redacted copy of the same letter and an accompanying non-disclosure certificate under s 375A of the Act dated 22 May 2017. That certificate stated that the disclosure of the Victoria Police letter, other than to the Tribunal, would be contrary to the public interest because it included information relating to ‘departmental investigative methods’.  The covering email correspondence made clear that the section 375A certificate applied only to the un-redacted version of the letter.

24. On 15 June 2017 the Tribunal wrote to the applicant requesting he provide any documents such as medical reports relating to his diagnosis and treatment and any documents or information in relation to his criminal sentencing. The Tribunal also attached further documents in response to the earlier application under s 362A being folios 23 and 28 of the Tribunal file which included a copy of ICSE[4] records indicating that the applicant had been identified as a member of the Apex street gang. 

    [4] Department of Immigration and Border Protection’ s Integrated Client Services Environment (ICSE) database

25. On the same date the Tribunal wrote to the applicant pursuant to the procedures set out in s 359A of the Act inviting his comment on information it considered would be the reason, or a part of the reason, for affirming the decision under review.  That information was particularised as follows:

    The information is contained in the attached letter from Victoria Police dated 17 May 2017 and attached screen shots from a database maintained by the department. 

    The particulars of the information are that:

    You are known to Victoria Police;

    You have a criminal history which includes convictions for robbery, recklessly causing injury, armed robbery, breach of probation order, theft, use cannabis, possess cannabis and obtaining property by deception;

    You have also been convicted of assaulting a police officer, resisting a police officer, resisting an emergency worker on duty and assaulting emergency working on duty and these are offences of a violent and anti-social nature;

    You are known to have links with other persons involved in serious crimes, to have used illicit drugs and to be a member of the Apex gang.

    This information is relevant to the review because it may cause the Tribunal to consider you are a risk to the safety and good order of the Australian community.  This would be the reason, or part of the reason, why the Tribunal would affirm the decision under review.

26. Attached to the Tribunal’s letter was a copy of the redacted letter from Victoria Police dated 17 May 2017.  The applicant responded to the matters contained in the Tribunal’s letter at the hearings on 20 June and 6 July 2017, the details of which are set out later in our reasons.

27. On 15 June 2017 the Tribunal wrote to the Secretary, requesting written arguments under s 358(2) of the Act in relation to the decision under review in respect of:

    ·    Whether the Tribunal should request the author of the letter from Victoria Police dated 17 May 2017 be available to give evidence about the statements in his letter concerning the applicant’s alleged membership of the  Apex gang, given the section 375A certificate imposed on the non-redacted version of that letter;

    ·    The weight that should be given to the redacted letter from Victoria Police dated 17 May 2017 given the assertions in that letter cannot be tested if the author is not available to give evidence;

    · Having regard to the terms of section 501(1), whether the Minister’s cancellation power under that section is a relevant matter that should be considered pursuant to the PAM guidelines concerning visa cancellation powers under section 116.

28. The Secretary’s written submissions on those issues were provided to the Tribunal on 23 June 2017. Attached to those submissions was a document dated 23 June 2017 signed by a delegate of the Minister revoking the s 375A certificate dated 22 May 2017 given in relation to the Victoria Police letter dated 17 May 2017.

1. In essence those written submissions contended that the letter from Victoria Police dated 17 May 2017 (now no longer subject to a s.375A certificate), being a clear statement from a senior-ranked and decorated member of the State Anti-Gangs Squad, should alone be sufficient for the Tribunal to reach a positive state of satisfaction as to the risk that may be posed by the applicant to the safety of the Australian community.  However, if the Tribunal was unable to be so satisfied, it should request the author, Detective Superintendent Peter De Santo, to provide further information, including by oral evidence.  

2. While the Tribunal does not question the seniority or integrity of Detective Superintendent De Santo, there were a number of important issues raised in the letter of 17 May 2017 that required clarification. For instance, there was no detail included in the letter setting out the basis for the assertion that the applicant had “links with other persons involved in serious crimes, to have used illicit drugs and to be a member of the Apex gang”. The Tribunal had the Police Fact Sheets for the last convictions in June 2016 but the information in the Fact Sheets did not suggest that the applicant was a ‘violent offender’.

3. The issue of whether the applicant’s visa should be cancelled is a serious matter that has serious consequences regardless of the outcome. If the applicant’s visa is cancelled he will be forced to leave Australia, where he has lived for 16 years and where the rest of his family and child live. If the applicant’s visa is not cancelled and he is allowed to stay, there may be serious consequences if his continued presence is or may be a risk to the safely of the Australian community.  This is the critical issue for determination in this case. As observed by the Full Court in Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 (Flick and Perry JJ) at [120]

   …..When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached. The absence of any cross-examination on the evidence and the absence of any indication being given to a party that such evidence is under challenge, may well be factors taken into account initially by the Tribunal and thereafter this Court on “appeal”.

4. Given the importance of establishing the facts on which to properly base our assessment, firstly, on whether the ground for cancellation is established and, secondly, how the discretion should be exercised, the Tribunal invited Detective Superintendent De Santo to appear before it to give evidence in relation to the matters raised in his letter. Detective Superintendent De Santo attended the resumed hearing on 6 July 2017 and provided oral and documentary evidence. 

   EVIDENCE AND SUBMISSIONS PROVIDED FOR THE REVIEW

5. The Tribunal was provided with the department file which included the applicant’s response to the NOICC, comprising documents and a written submission from the applicant’s mother dated 10 January 2017. According to the submission, the family had moved to Australia in April 2001 when the applicant was just four years old and had lived in Australia since that time. The applicant was raised with his siblings and extended family in [suburb 1] and completed all his education at local schools in that area. The family had built strong connections with Australia, with most of their extended family also living locally, and participated in local community cultural groups, sporting clubs as well as working and volunteering in their local area. The applicant had no knowledge of New Zealand and no family, support or connections except those here in Australia. He relied on her to navigate services and life choices due to his diagnosis of bipolar disorder and there was a clear correlation between the applicant’s mental illness and the offences listed in the NOICC, which could be confirmed by his mental health workers.

6. According to the applicant’s mother, the family went through some extremely traumatic events in 2007 which led the applicant to have contact with services when the applicant had difficulty coping. Despite several attempts to have the applicant assessed and supported for these traumatic events, the family was given little or no support or intervention until he was officially diagnosed with bipolar affective disorder in 2013. Since commencing treatment the applicant had shown good progress and was of little or no risk to the community. If the applicant’s visa was cancelled, it would have serious consequences for his family and his child. She asked that the applicant be allowed to retain his visa and remain in Australia.

7. The applicant’s mother provided the documents in support of her submission, including letters of support from the applicant’s siblings, a birth certificate for the applicant’s three year old son, letters from the applicant’s general practitioner, mental health clinician and service provider about the applicant’s mental health, diagnosis and treatment.

8. The department file also included the applicant’s National Police Certificate recording his disclosable court outcomes and records of the delegate’s communications with the applicant’s representative and other government agencies.

9. On 14 and 19 June 2017 the applicant’s representative provided the Tribunal with written submissions and documents. These documents included statements from the applicant and a number of his family members, a copy of the birth certificate of the applicant’s son and education and medical records relating to the applicant as well as a number of letters from staff members at the Youth Support and Advocacy Service (YSAS).

10. The statements from the applicant’s family members indicate the applicant has a supportive extended family in Melbourne, including his mother, siblings, aunt, uncle and cousins.  The applicant has a young son aged 3 who lives with his mother (the applicant’s former partner) and both his son’s mother and grandmother have provided letters of support for the applicant. The education documents confirm the applicant attended primary and secondary school in Melbourne and played rugby league for his local club.

11. The medical records include records from his general practitioner and Monash Health’s Recovery and Prevention of Psychosis Team (RAPP Team) and indicate the applicant has long-standing mental health issues for which he receives ongoing psychiatric treatment from Monash Health and requires constant care from his mother.  He has been engaged with the RAPP Team at Monash Health since 2013 and is currently receiving psychiatric treatment under a community treatment order due to expire on 27 November 2017. 

12. YSAS is described as a youth specific community service organisation providing clinical services for young people experiencing serious problems The YSAS documents report the applicant has been engaged with that service since March 2010 because of his complex trauma history, much of which is due to his experiences as a witness and a victim of domestic violence. Through that service the applicant has participated in a home-based withdrawal program as well as outreach and day program activities. 

13. The YSAS documents state that organisation has assisted the applicant to manage his social connections and substance abuse and have connected him with mental health supports.  However YSAS reports his mental health deteriorated quickly before his diagnosis with bipolar disorder in 2014 and a further deterioration in the last two years caused staff to express concerns for his safety.  It is reported that when mentally well the applicant demonstrates a deep capacity to reflect on his behaviour and acknowledge the damage done to his family and friends and appears to be carrying an enormous level of confusion and guilt related to his mental health. The Director of Services and the Team Leader of the Day program both indicated that should the applicant be released from detention, YSAS will continue to work with and support the applicant and his family, noting the applicant is “brilliantly” supported by his mother, despite her own exposure to trauma.

14. At the hearing on 20 June 2017 the applicant’s representative provided the Tribunal with further documents including records of his treatment under the Mental Health Act 2014, orders of and correspondence from the Mental Health Tribunal, medical records from [name], Centrelink and the RAPP team, a statement to police made by the applicant on 10 August 2012 and other correspondence with Victoria Police as well as a statement from the applicant’s YSAS support worker apparently written for the Magistrates’ Court in July 2015.

15. On 4 July 2017 the applicant’s representative provided to the Tribunal further written submissions and certified extracts of the orders of the Magistrates’ Court of Victoria at [suburb 1] on 6 July 2015 and 6 June 2016.  On 11 July 2017 the applicant’s representative provided to the Tribunal further written submissions about the evidence of Detective Superintendent de Santo on 6 July 2017.

    THE APPLICANT’S CAPACITY TO PARTICIPATE IN HIS HEARING

16. Medical evidence before the Tribunal indicates that the applicant has been treated for mental illness since at least June 2013 and was diagnosed with bipolar affective disorder in 2014.  He was first admitted to hospital for psychiatric treatment in November 2013 and has since had five further admissions, the most recent being in August 2015.  He has been the subject of involuntary treatment orders under the Mental Health Act 2014 since at least May 2015 and is currently being treated pursuant to an order set to expire on 26 November 2017.  Reports from his authorised psychiatrist dated 19 November 2015 and Monash Health’s Recovery and Prevention from Psychosis team dated 29 April 2014 indicates that treatment includes medication, assertive case management and follow up in the community as well as assistance to attend his medical and Centrelink appointments and to participate in recovery programs and pre-employment activity.

17. A medical report by the applicant’s authorised psychiatrist, [Dr F], dated 19 November 2015 indicates that at times during his illness the applicant suffers from auditory and command hallucinations, delusions, tangential and disordered thoughts, disorganised behaviours, pressured speech, poor concentration, incoherent speech and significant memory impairment.  In November 2015 it was noted that the applicant was currently stabilising on his medication but still exhibiting significant symptoms. It was reported that he is an extremely complex patient who is likely to have an extended recovery period if he is to achieve complete remission. 

18. At hearing the applicant told the Tribunal he was currently being treated with Aripiprazole by injection every four weeks, but that he was not given his medication when he was first taken into detention on 16 February 2017. He told the Tribunal he had been given two or three injections during the time he has been held in immigration detention.           

19. The Tribunal observed the applicant made every effort to give evidence and answer the Tribunal’s questions at the hearings. However at times the applicant appeared to be agitated and unable to concentrate. Some of his evidence was tangential and difficult to understand and he appeared to have no recollection of some of the incidents in his past. The medical evidence indicates that the applicant has significant memory impairment related to his hospital admissions and previous treatment and may also have a cognitive deficit with decreased attention span and concentration. We have been mindful of these matters when assessing his evidence and conducting the hearing.  Ultimately, we were satisfied that the applicant understood the purpose of the review and the questions put to him at the hearings.  The Tribunal is satisfied the applicant was able to participate in the hearing, particularly given he was represented by a qualified migration agent at those hearings.

    THE HEARINGS - SUMMARY OF THE EVIDENCE

20. Hearings were held on 20 June 2017 and 6 July 2017.  At each hearing the applicant was present and was represented in relation to the review by his registered migration agent.

    The hearing on 20 June 2017

21. At the hearing on 20 June 2017 the Tribunal received oral evidence from the applicant, his mother, his sister and his youth worker, [Mr E]

22. The applicant gave evidence about his personal background, his criminal offending and his mental illness. He did not dispute that he had been charged and convicted with the offences set out in Annexure A. He told the Tribunal that his earliest offences took place in 2010 when he was 13 or 14 years of age.  He stated he was picked up by his older friends who were supposed to take him to an internet café in [suburb 1] but instead took a detour.  He was given a knife by his friend who asked him if he had his back and he ended up supporting his friend in a “stupid crime”.  He spent a short time in juvenile detention for that offence and was placed on probation for 12 months.

23. His next offence took place in 2011 when he was charged with breaching the probation order made in respect of his 2010 offences.  He stated he was with two people in their twenties and he chose to stick with them because, in his mind, they could take care of him.  He stated he wasn’t sleeping much at this time and was smoking and doing drugs and spending a lot of time on the streets, attending school only periodically. 

24. The 2013 incident related to a shop lifting offence when he was with two other young men. He was caught by an undercover security officer.  The applicant was unable to recall the incident in July 2015 which led to him being charged with theft from a shop.

25. The offences in 2016 related to the applicant’s use of cannabis which he stated helped him “synchronise” his thinking, put things in their right order and socialise with others.  In 2016 he was in the city when he was chased by police officers who ordered him to turn out his pockets and hand over the synthetic cannabis he was carrying.  He denied assaulting a police officer, stating they took him to hospital and not to the police station.

26. [Mr E] is a specialist alcohol and other drugs case manager who was the applicant’s case manager at YSAS between March 2010 and December 2015 before he left that organisation for other employment.  He gave evidence that he started to see a decline in the applicant’s mental health in late 2013 and his issues were made more complex by the combination of his psychosis and use of illicit substances.  He stated that the applicant and his family have been experiencing a period of adjustment since the applicant’s diagnosis with bipolar disorder in 2014, which in his experience commonly follows a diagnosis with a serious mental illness.  He gave evidence that by the time he left his employment with YSAS in December 2015, the applicant’s engagement with that service was fairly sporadic. 

27. [Mr E] gave evidence that in his observation, the applicant’s earliest offences in 2010 and 2011 were enmeshed with his substance abuse, but his later offences correlated with periods in which he was mentally unwell.  His observation of the applicant’s deterioration in 2014 and 2015 was that his mental state caused him to become very isolated as his friends struggled to understand his mental health issues.

28. The applicant’s mother told the Tribunal she holds a Diploma of Social Services and works as a support worker at [name] , a children’s services organisation.  She gave evidence about the applicant’s background and illness and his relationship with his son.  She told the Tribunal the applicant took the train to [suburb 2] to be with his son’s mother at his birth, but her family rang her to tell her he was very unwell while he was there.  When he returned home his mental health became even worse and not long afterwards he was diagnosed with bipolar disorder.  She gave evidence his son’s mother later returned to live in a nearby suburb of Melbourne and the applicant has since had open access to his son, that access being supervised by his mother.  His son often sleeps at their house and, since the applicant was granted youth allowance, he has given $100 per payment to his mother for the things his son needs when he visits.  His son has visited the applicant in detention and stays with the family three nights per fortnight.

29. The applicant’s mother told the Tribunal she had never heard it suggested the applicant was involved in the Apex gang until she received the Tribunal’s letter dated 15 June 2017 with the attached letter from Victoria Police. She gave evidence that the charges in December 2015 occurred after the applicant missed his depot medication in November 2015 and he was picked by police in [suburb 1] on a 42 degree days, dehydrated and shirtless and behaving very oddly.  She stated he was taken before a judge the next day and the more serious charges were dropped because the CCTV footage did not support them.  The magistrate ordered he be released on the condition he was taken straight to the Emergency unit at [a] Hospital.  She gave evidence she was in court in June 2016 when the applicant was sentenced and the sentencing magistrate stated there was no benefit to imprisoning him, placing him on a therapeutic order for 12 months.

30. The applicant’s mother gave evidence that if the applicant was released from detention, he would receive support from YSAS, the RAPP team and his large family who live locally and regularly check up on him on the streets and at the local shopping centre and will notify her if there appears to be a problem.  She gave evidence that if the applicant has to return to New Zealand, she will have to go with him to care for him and take her youngest son, currently in year 8 at school.

31. The applicant’s sister gave evidence that she lived with her mother, the applicant and her two children aged 7 and 5.  She stated the applicant is a role model to her children, playing with them and reading to them and always friendly and well-behaved.

    The hearing on 6 July 2017

32. The hearing was resumed on 6 July 2017 when the Tribunal received oral evidence from Detective Superintendent Peter de Santo from Victoria Police, represented by Counsel. The Tribunal also received further evidence from [Mr EA] and [Mr O] of Youth Support and Advocacy Service (YSAS) as well as further evidence from the applicant and his mother. 

33. Detective Superintendent De Santo produced to the Tribunal a document titled ‘Target Profile Report’ prepared by the Criminal Intelligence Group, Echo Taskforce Crime Command, Victoria Police dated 29 June 2017 which he told the Tribunal was based on a variety of internal police intelligence sources that Victoria Police wished to remain confidential. The report noted:

    Profile prepared in response to Department of Immigration and Border Protection request for Victoria Police material to be presented as part of an application before the Administrative Appeals Tribunal to cancel visa of [the applicant]. 

34. It was submitted on behalf of Victoria Police that the report could be provided to the Tribunal, the applicant and his representative for the purposes of the hearing provided that all copies were returned to Detective Superintendent De Santo at the conclusion of the hearing.  It was further submitted that the Tribunal had the power to make such an order pursuant to section 35 of the Administrative Appeals Act 1975.  Section 35 of that Act does not apply in relation to a proceeding in the Migration and Refugee Division of the Tribunal[5]. While section 378 of the Migration Act gives the Tribunal powers to restrict publication of certain matters in a Part 5 review, those powers do not extend to preventing or limiting the disclosure of information or documents to the applicant or his representative.

    [5] Section 35 of the Administrative Appeals Act 1975 is contained in ‘Part IV of the AAT Act – Reviews of the Tribunal of Decisions’.  Section 24Z sets out the scope of operation of that Part and provides that with some exceptions not relevant here, the provisions of Part IV do not apply in relation to a proceeding in the Migration and Refugee Division.

1. Given these limitations, the Tribunal adjourned the hearing for a short period to review the report and to make a ruling on the most appropriate course that would provide the applicant with notice of the allegations made against him yet preserve the confidentiality of any ongoing investigations being undertaken by the Victoria police.

2. The report was in two parts – part one containing information relating to the applicant and part two containing information about other persons who were said to be his known associates. The first part of the report comprised a combination of factual information and opinion evidence or conclusions said to be based on source documents which were not produced to the Tribunal but were referred to in footnotes to the report. After discussion with Detective Superintendent De Santo and his counsel, the Tribunal directed that a redacted version of part one, being a redaction of the footnotes which referred to source documents or other reports, be released to the applicant and his representative without restriction, while part two would be released subject to a direction under s.378 that its contents should not be published except to the applicant and his representatives. A redacted copy of part one of the document was produced by the Tribunal and the un-redacted copies returned to Detective Superintendent De Santo at hearing. The Tribunal retained a redacted copy of part one and an un-redacted copy of part two on the Tribunal file.

3. Pursuant to s.365(2) of the Act, and being satisfied it was in the public interest to do so, the Tribunal directed that the evidence of Detective Superintendent De Santo be taken in private and the applicant and his representative be present when the oral evidence was given.

4. During the hearing the Tribunal also made orders under s.378 of the Act restricting the publication of parts of the oral and documentary evidence provided by Detective Superintendent de Santo. After the hearing and with the consent of both parties, the Tribunal varied the orders made at hearing to the following:

   Pursuant to s.378 of the Act, and being satisfied it is in the public interest to do so, the Tribunal directs the redacted version of the ‘Target Profile Report’ prepared by the Criminal Intelligence Group, Echo Taskforce Crime Command, Victoria Police dated 29 June 2017 should not be provided to any person except the applicant and his representative.

   Pursuant to s.378 of the Act, and being satisfied it is in the public interest to do so, the Tribunal directs the redacted version of the ‘Target Profile Report’ prepared by the Criminal Intelligence Group, Echo Taskforce Crime Command, Victoria Police dated 29 June 2017 and the oral evidence of Detective Superintendent De Santo may be referred to in the Tribunal’s reasons provided that no person named in that report or oral evidence, other than Detective Superintendent de Santo, shall be identified in the Tribunal’s reasons.

5. The ‘Target Profile Report’ provided by Detective Superintendent De Santo included a section under the heading ‘Analyst comments’.  In summary this section records that:

   (1)the applicant’s criminal activity is likely to be linked to funding his alcohol or illicit drug use as he is a regular cannabis user who has been spoken to on multiple occasions while drug and/or alcohol affected, which in many cases has required police intervention, either as a welfare concern or involving criminal charges;

   (2)he is both a single opportunistic offender and as part of a group and his primary aim seems to be cash remuneration or financial gain;

   (3)it is highly likely serious offences by the applicant will involve associates and to date he has taken lead role in groups involved in serious offences of armed robbery with his social group generally identified as co-offenders;

   (4)intelligence has linked both the applicant and his associates to 'Apex' and other youth gangs;

   (5)offences where he has acted alone are generally minor, do not involve violence and are associated with low value spontaneous or opportunistic thefts.  This strongly suggests his links with a wider youth group associated with regular criminal offending will increase risk of his involvement in violent crime, and will see him taking a leading role in violent activity;

   (6)it is likely the applicant’s offending is related to youth gang activity associated with Apex and other similar groups in the [suburb 1] area as he is cited as an associate of these groups. Offending attributed to such groups includes involvement in aggravated burglaries to steal cars for cash payment when delivered to third party. Motivations of these offenders include a sense of belonging, disengagement from school, and no fear of consequences;

   (7)while not reflected in his criminal history, there are suggestions he has been involved in reported serious criminal activity which cannot be attributed directly to him on evidentiary basis;

   (8)efforts at intervention and rehabilitation are unlikely to have been successful in curtailing offending behaviour as continued evidence of drug use exists, even while on Community Corrections Order (CCO);

   (9)the applicant has on four occasions been found drug affected during the period of the most recent CCO, the first within 3 months of CCO imposition. Repeated court sentencing referrals to Youth Support & Advocacy Service (YSAS) have been made during course of offending since 2010; despite this further offending has continued. There is little indication of reconnection or engagement within family, social improvement, employment or education environments;

   (10)the effect of family violence in Apr 2009 which saw the dissolution of his family unit likely acted as a catalyst for the applicant’s offending. Within 3 months, he was reported as a missing person and his first offending detected in April 2010.

6. This report was said to form the basis for the statements made in the letter of 17 May 2017 and, together with the details of the applicant’s criminal history and Facts Sheets provided by Victoria Police, comprised the evidence before the Tribunal relevant to the question of whether the applicant is or may be a risk to the safety or good order of the Australian community or a segment of the Australian community. Given the importance of this report, the Tribunal questioned Detective De Santo about the basis of a number of the statements made in the report. In cases where the statements were attributed to a source document, Detective De Santo reviewed each reference when questioned and answered after examining documents in a file that he brought with him to the hearing but did not produce. The Tribunal was greatly assisted by the Detective Superintendent’s evidence, which was provided in an open and helpful manner. A summary of his evidence follows:

   (1)The applicant was well known to police and there were 26 recorded field contacts with him between July 2007 and February 2017, the most recent of which was on 10 February 2017 when he was observed by police approaching vehicles. It was recorded that the police considered the applicant’s actions indicated he was getting ready to commit robbery or theft because this was a known car theft area.  The applicant was not charged in respect of any of those field contacts;

   (2)The applicant was subject to a banning order on 9 December 2016 when he was banned from licenced premises in circumstances where he was ejected three times, attempted to return and unsuccessfully attempted to assault a security officer because he was overpowered.  The applicant was not charged as a result of these events;

   (3)One of the source documents recorded that the applicant was not taking his prescribed medication but taking synthetic cannabis and alcohol and on three occasions he had been aggressive towards police and ambulance services. There was only one convicted recorded relating to such conduct, being the conviction recorded in June 2016 in relation to the events of November 2015;

   (4)The assessment that the applicant seeks easy, opportunistic targets was based on information obtained from the police database that the applicant has been identified as being present in areas known for volume crime such as theft from motorcars with no good reason.  The records noted that on 16 October 2015 the applicant told police when stopped that he was looking for money and had stolen a wallet and alcohol.  It was noted that the applicant displayed strange behaviour.  When interviewed the applicant made admissions about occasionally breaking into cars, referred to himself in the third person and told police he was diagnosed with bipolar but was not taking his medication.  He denied having a problem with alcohol but admitted to heavy use of cannabis.  The applicant was not arrested, charged or convicted in relation to this police interaction;

   (5)The assessment in the report that the applicant was involved in offences characterised by violence was based on the armed robbery in 2010. The applicant was said to be the main aggressor in that incident. There were no other instances recorded in which the applicant was involved in armed robbery;

   (6)The applicant was recorded as being ‘involved’ in serious driving offences with other associates, including a pursuit involving a car on the wrong side of the road.  While the applicant was recorded as being present it is not clear from the sources whether he was in the car or the nature of his involvement.  The applicant was not charged;

   (7)There is a record of an incident in February 2016 referring to drug trafficking to school children where warrants were executed by police on premises on [a] Highway in [suburb 1].  The applicant was at the premises when the warrants were executed. There was no further detail provided of the applicant’s involvement in these alleged offences. The applicant was not charged;

   (8)Victoria Police believe the Apex gang is currently dissolved, but back in 2015 it started with a group of individuals from Apex St [suburb 1] which grew into a larger group that committed serious crimes against members of the public in concert. The structure of the Apex gang comprised the ringleaders or leadership group, a middle management group and a group of youths and juveniles.  They committed crimes of violence against the community including organised home invasions, armed robberies, high speed pursuits and ram raids and assaults; Victoria Police have incarcerated the main leaders and middle management and the Apex gang as it was two and a half years ago no longer exists, however there remains linked network offending by youth offenders because as senior members are removed, some of the middle management step up to the leadership and some of the underlings step into middle management roles.  While the Apex gang has been dispersed, police still observe similar problems and offending;

   (9)Apex gang members do not identify themselves as such to Victoria Police, rather the process of identification is based on linking persons and entities through their associates and patterns of offending. The assertion in the letter dated 17 May 2017 that the applicant is a member of the Apex gang is based on police intelligence reports and products that were referred to in the report.  While there is no evidence that the applicant was a ringleader or within the middle management of the Apex gang, he is believed to be a member because of his association with people believed to be gang members, some of whom are now incarcerated. For instance: 

   ·An information report from July 2015 makes reference to two individuals with whom the applicant has been linked being gang members.  When asked how they were known to be gang members, Detective Superintendent De Santo stated that it was by the types of offences, such as robberies, theft from motorcars and other crime sprees;

   ·It was reported that on 27 July 2015 the applicant met with an individual who is a member of the Apex gang and who had charges pending for aggravated burglary and theft of motorcar;

   ·On 8 May 2016 the applicant was reported to have met with another individual who was assessed to be associated with or attached to the Apex gang and who had prior history for 22 offences and 22 outstanding charges.  The applicant and this individual were the only persons present;

   ·On 11 April 2016 possible gang related contact was reported where the applicant was found in company with six others who had prior criminal history and possible gang activity.  One of those six persons was involved in heroin trafficking;

   ·In February 2016 the applicant was present when a warrant was executed at premises from which it was believed that persons were trafficking drugs to school children (being the incident referred to in (7));

   ·Of the listed associates in part two of the report, the applicant had contact with one person in 2016 who has been incarcerated.  One other person on that list was present with the applicant at the drug raid at premises on [a] Highway in 2016 (which resulted in the applicant’s second conviction as an adult), a further person was present with the applicant at premises where a search warrant was executed in December 2015 (being the incident which led to his convictions for use and possession of cannabis on 6 June 2016).  Three other persons were present with the applicant at an incident in which a vehicle was intercepted in July 2015 (being the incident referred to at (6)).  Another known associate was present with the applicant and others when they were caught spraying graffiti the side of a restaurant.  Several other persons in the associates list had ‘historical contacts’ with the applicant.

7. The applicant agreed that he knew all of the people identified by Detective Superintendent De Santo in the report as being ‘associates’, but stated they were not to his knowledge members of the Apex gang.  He said they had been good to him when he was on the streets and he considered them his ‘friends’.  He knew one of those people had since been imprisoned.  He denied having particular knowledge of the Apex gang other than that Apex St was a street near his own street in [suburb 1].

   SUBMISSIONS OF THE APPLICANT’S REPRESENTATIVE

8. The applicant’s representative submitted in summary:

   (1)That the applicant’s mental health issues are flagged at the front of the report, but are not discussed throughout the remainder of the document.  Bipolar and substance abuse commonly co-occur and the added burden of substance abuse disorder raises the risk profile of the disorder and complicates treatment options. The applicant’s drug and alcohol abuse should not be viewed in isolation outside of the context of his mental health and bipolar disorder.  His bipolar and mental health should be at the fore of the assessment of his circumstances, motivations and potential for rehabilitation and integration into the Australian community;

   (2)The characterisation of the applicant as ‘extremely violent’ in the report is unwarranted, given that his convictions for violent offences occurred when he was 13 years old (and cannot be said to be reflective of his current character) and at the end of 2015 when he was involved in a scuffle with police when they tried to move him on in the CBD.  On that occasion he was not properly medicated which caused his fear of the police;

   (3)The report states the applicant is ‘cited as taking a violent and aggressive leading role in serious offending as part of a group’, but this at best refers to instances that occurred six to seven years ago when the applicant was thirteen years of age and cannot be characterised as current activity;

   (4)In relation to references to the applicant attending an entertainment venue in [suburb 1] to purchase synthetic cannabis, synthetic cannabis was not illegal in Victoria until the amendment of the Drugs, Poisons and Controlled SubstancesAct (Vic) earlier in 2017;

   (5)The positive statement in the letter of 17 May 2017 that the applicant ‘is a member of the Apex gang’ is not substantiated by the report or the source documents referred to in the report and the evidence of Detective Superintendent De Santo. Deputy Commissioner Shane Patton of Victoria Police gave evidence to a Parliamentary Inquiry into Migrant Settlement Outcomes in April 2017 that the Apex gang are a non-entity in terms of a gang and the applicant does not ever appear to have been charged with nor convicted of gang-related criminal activity;

   (6)The applicant has been a resident of [suburb 1] for many years, the street on which his family home is crosses over and intersects with Apex Street and as such it is not difficult to imagine that he would know of and at times associate with people who may consider themselves members of the gang.  The applicant is not a member of the Apex gang or any other crime gang;

   (7)The analyst comments in the report indicate that the primary aim of the applicant’s offending is cash remuneration or financial gain and offences where he has acted alone are generally minor, non-violent and associated with low value, spontaneous or opportunistic thefts.  It is unclear why the analyst makes the assertion that his alleged links with a wider youth group associated with regular criminal offending will see him take a wider role in criminal offending;

   (8)The applicant cannot be attributed with any criminal activity that lacks evidentiary basis and where it is not reflected in his criminal history, that activity should not be considered by the Tribunal in the course of its consideration as to whether he constitutes a threat to the safety and good order of the Australian community;

   (9)Irrespective of whether the applicant has in the past engaged in behaviour in Australia which may cause him to be regarded as a risk to the health, safety and good order of the Australian community, there are strong compelling and compassionate reasons to revoke the cancellation of his visa. These include his ties to Australia and the hardship to him and his family if he is forced to return to New Zealand

   CONSIDERATION – DOES THE GROUND FOR CANCELLATION EXIST?

   Section 116(1)(e) - risk to Australian community or individual

9. The applicant’s visa was cancelled under s 116(1)(e) of the Act.

10. A visa may be cancelled under s.116(1)(e) if the Minister or his delegate is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or individual(s).

11. The Department’s Procedures Advice Manual (PAM3) sets out that when considering whether the ground set out in s.116(1)(e) is established, delegates must have regard to the nature of the offence and draw a logical or rational link to how the alleged offending poses a risk to the health, safety or good order of the Australian community or an individual(s). Relevantly PAM3 provides:

    For example, if a visa holder is charged with the commission of a violent offence, delegates must draw a connection between the nature of the alleged offence and the specified risk to health or safety that it poses. Property offences are not likely to pose a risk to the health or safety or good order of a segment of the Australian community or to the health or safety of an individual or individuals. . .

    For the ground at s.116(1)(e) to be made out, it is for the delegate to clearly identify the risk that the person’s presence in Australia poses to the health, safety or good order of the Australian community (or a segment of the Australian community, or to the health or safety of an individual or individuals). Delegates need to articulate the specific details or particulars of the risk.

1. In our view this statement represents an appropriate and accurate summary or guide on how the s 116(1)(e) should be interpreted and applied rather than policy. It is clearly intended to be used as a guide for delegates in exercising the power and is consistent with our view of the law.

2. In this case, the delegate does not differentiate between the three types of potential risk encompassed in s.116(1)(e), nor does he identify any individual or segment of the community to whom the applicant is stated to pose that risk. We are not confined to the matters considered by the delegate and indeed to do so would be an error. The Tribunal has assessed each of those matters separately.

   Risk to the health of the Australian community or individual

3. PAM3 sets out that having (active) tuberculosis is the most common reason a visa holder would be a risk to the health of the Australian community.  It also sets out that a person who publicly advocates something which is against Australia’s health interests may be a risk to the health of the Australian community, for example, by advocating against childhood immunisation or actively discouraging people from participating in the Australian Government’s Immunise Australia Program.  Nothing in the material before the Tribunal indicates the applicant is or may be a risk to the health of the Australian community, a segment of that community or any individual(s) and the Tribunal finds he is not.

   Risk to the good order of the Australian community or individual

4. In respect of the risk to ‘good order of the Australian community’, PAM3 sets out that ‘good order’ is concerned with activities which have an impact on public activities or which manifest themselves in a public way:

   A delegate may be satisfied that a person’s presence in Australia poses a risk to the good order of the Australian community or a segment of the Australian community if:

   ·     there is evidence that a visa holder in Australia is inciting people in the community to violence; or that a visa holder outside Australia is intending to come to Australia to incite people in the community to violence;

   ·     there is evidence that a visa holder in Australia is publicly advocating violence against a particular social group (such as women) or a visa holder outside Australia is intending to come to Australia to publicly advocate violence against a particular social group (for example, hate-preachers).

   This is because inciting or advocating violence could be said to be disruptive to the proper administration or observance of Australian law, in that certain persons might act on such calls; or that by publicly inciting or advocating violence they are creating difficulties or public disruption in relation to the values, balance and equilibrium of Australian society in that certain members of society may react negatively to such public advocacy.

   In order for this ground to apply, there should be some action that the visa holder is intending to undertake or has undertaken that could cause the risk to exist – for example, holding public rallies, or speaking at public conferences.

5. The material before the Tribunal does not indicate the applicant is or may be a risk to the good order of the Australian community and the Tribunal finds he is not.

   Risk to the safety of the Australian community (or individual(s))

6. The evidence before the Tribunal about the applicant’s criminal offending was contained in the departmental file, documents produced under subpoena by Victoria Police and the oral evidence of the applicant and Detective Superintendent De Santo.  The applicant’s witnesses also made reference to his criminal offending in their evidence to the Tribunal.

7. We accept the applicant has been associated with a number of people who are known or believed by Victoria Police to be members of the Apex gang.  As to his own involvement with the Apex gang, his suspected membership is based on his association with gang members and his pattern of offending.  The report states that the extent of his offending as part of wider Apex and youth gangs “is not fully identified, although strong indications exist”. Those indications are the matters set out or referred to in the report through the footnote references. Relevantly, a disclaimer to the report states the interpretations and conclusions contained in it are made on the balance of probabilities and are not evidence, but a basis for consideration.

8. The Target Profile Report contains a number of statements or, at best, observations, which are not substantiated or are general or speculative in nature.

9. For instance, under the heading in the report "It is highly likely serious offences by [the applicant] will involve associates" it is acknowledged that offences where the applicant has acted alone are "generally minor, do not involve violence and are associated with low value spontaneous or opportunistic thefts" yet the opinion that follows this statement concludes as follows:

   [the applicant's] links with the wider youth group associated with regular criminal offending will increase risk of his involvement in violent crime, and will see him taking a leading role.

10. Based on the material before us, that opinion has no foundation and can therefore be given no weight.

11. Firstly, the evidence establishes that the applicant has had ad hoc interactions with persons who may be associated with criminal activity rather than meaningful or enduring associations. He is described as a loner and because of his mental health issues, his attraction to drugs and his proximity to youth groups on the streets, he is reported to have had interactions with others who are known to Victoria Police. This does not evidence close associations or involvement and there is considerable force to the submissions of the applicant's representative that these interactions would not be unexpected given the applicant's circumstances. It is clear from the report and Detective Superintendent De Santo's evidence that Victoria Police have actively monitored the applicant over the past few years. Detective Superintendent De Santo provided evidence about the nature and results of those reports. There was no evidence that the applicant was involved in criminal offending arising out of these interactions or that he has been charged or convicted of any serious criminal offending in this period.

12. Secondly, the most significant violent offence identified is the armed robbery in 2010. This was a serious offence but assessing whether the applicant is or may be a risk to the safety of the community based on this offending must be approached with caution. The applicant was 13 years old and there is evidence of trauma in his family as well as serious mental health issues which were undiagnosed at this time.

13. Since that criminal offending, the only incidents which are said to involve violence are the eviction of the applicant from the licensed premises, for which there was no charge or conviction, and two incidents on 21 August and 27 November 2015.  No documents were produced by Victoria Police in response to the Tribunal’s summons in relation to the incident on 21 August 2015, however the certified extracts of court orders produced by the applicant’s representative indicates that an incident on that date led to the applicant being convicted on 6 June 2016 of a number of offences.  Those that may be considered to have involved violence include resisting and assaulting a police officer.

14. The nature of the offending in relation to the incident in November 2015 is set out in the preliminary brief produced by Victoria Police. This brief states that police attended the Melbourne CBD after reports of an aggressive beggar who was described as being unsteady on his feet.  It reports police were speaking to the applicant when he tried to push past them and then struggled against the officers who took hold of him, kicking out at the persons restraining him several times. He was subsequently charged with a number of offences, including resisting and assaulting an emergency worker on duty. The certified extracts of court orders produced by the applicant’s representative indicate that on 6 June 2016 he was convicted of a number of offences arising out of the incidents of 21 August and 27 November 2015 and sentenced to a Community Corrections Order for 12 months, requiring him to undergo treatment and rehabilitation.

15. It is stated in the Target Profile Report that "it appears likely that [the applicant's] offending is related to youth gang activity associated with Apex and with other similar groups in the [suburb 1] area". It is further opined that there has been in “increased offending” by the applicant since 2015 and that the applicant's "motivation for offending reflect those associated with the wider social group".  These statements are not only speculative but are inconsistent with other evidence about the nature of the applicant's offending and his mental state from 2015. During 2015, the applicant was the subject of an involuntary treatment order under the Mental Health Act 2004.  His case manager at the time, [Mr E], gave evidence that the applicant’s criminal offending at this time correlated with periods of being extremely unwell.  This evidence suggests that any increase in the applicant's criminal activities was related to his mental health rather than an association with a ‘wider social group’. Moreover, the statement "there are suggestions [the applicant] has been involved in reported serious criminal activity which cannot be attributed directly to him on evidentiary basis" is highly speculative.  Detective Superintendent De Santo was questioned about the various reports of other activities said to involve the applicant and his evidence about the nature and extent of the applicant's alleged involvement is summarised above. Relevantly, the applicant was not convicted or charged in relation to any of these matters.

16. The applicant has not as an adult been convicted of any offences identified by Detective Superintendent De Santo as being typical of gang offending including organised home invasions, armed robberies, high speed pursuits and ram raids and assaults.  While the applicant has a conviction for armed robbery, it dates from 2010 when he was 13 years old. Since that time the majority of his convictions relate to non-violent property offences and minor drug offences.  The exceptions are the offences that occurred in August and November 2015 set out above.  We note the applicant was subject to an involuntary treatment order under the Mental Health Act at that time.  On the evidence before us we are not satisfied the applicant is a member of the Apex gang.

17. As to whether the applicant is a risk to the safety of the Australian community, PAM3 states that the risks from which the Australian community are to be protected include injury, danger and other forms of harm (such as physical harm).  In this case there is uncontested evidence that the applicant has been convicted of a number of criminal offences between 2010 and 2016. 

18. PAM3 specifically provides that property offences are not likely to pose a risk to the health or safety or good order of the Australian community.  Given it is not suggested the theft from shop convictions in 2013 and 2015 involved violence, we consider those offences do not indicate the applicant poses a risk to the Australian community.

19. The applicant was convicted of the serious offences of armed robbery, recklessly cause injury and robbery on 20 August 2010.  Detective Superintendent De Santo’s evidence that the applicant was the main aggressor and the most violent of the offenders during that incident is particularly concerning.  Weighed against this are the applicant’s circumstances at the time and Detective Superintendent De Santo’s evidence that he was not aware of any other instances in which the applicant had been involved in an armed robbery, whether or not charges were laid. 

20. The applicant was convicted of a number of offences including resisting and assaulting a police officer and an emergency worker in June 2016 relating to events that took place in August and November 2015. Detective Superintendent De Santo’s evidence indicates that the applicant has on other occasions been reported to be aggressive towards police or security staff but he has not faced any charges in relation to those matters.

21. The applicant suffers from a serious mental illness which has seen him admitted to hospital for psychiatric treatment on multiple occasions since November 2013.  The medical evidence before the Tribunal indicates that in November 2015, the applicant was assessed by his treating team as being of serious risk to himself and others when unwell.  While the applicant is currently receiving treatment for his illness, his condition is not yet stabilised and he remains subject to an involuntary treatment order under the Mental Health Act.  The applicant, his mother and his youth worker all gave evidence that the applicant’s mental health issues contributed to his criminal offending.

22. The applicant’s representative submitted that had the courts considered the applicant a risk to the safety of the Australian public, they would have sentenced him to a custodial sentence. However, the material that was before the court and the factors considered by the court when sentencing the applicant are not known to the Tribunal. In any case s.116(1)(e) provides that a person’s visa may be cancelled not only where the visa holder’s presence in Australia ‘is’ or ‘would be’ a risk to the safety of the Australian community, but also where it ‘may’ or ‘might be’.

23. Based on the evidence before the Tribunal it is evident that the applicant's mental health issues present the most significant risk, not only to the applicant himself but to others. This has been the source of his criminal offending, including his association on the streets with others. On the evidence before us we are not satisfied that the applicant is a risk to the safety of the Australian community because there has been no recent history of violent offending and his offending in 2015 was low level, as evidenced by the sentence and facts as set out in the criminal brief.  The applicant is currently subject to an involuntary treatment order, which provides a level of treatment and support for the applicant when he is living in the community. There is also evidence that the applicant’s mother and family are supportive and that there are service providers and case management services available to assist him.

24. Notwithstanding this, the wording if s 116(1)(e) is clear. It is sufficient for this provision to be engaged if the Tribunal is satisfied the applicant ‘may’ or ‘might’ be a risk to the safety of the Australian community. The expressions ‘may’ or ‘might’ should be given their ordinary English meaning. In our view, there is a possibility that the applicant will undertake behaviours that present a risk to others if his mental condition remains unstable and if he ‘self-medicates’ through the use of drugs. However, we assess the risk as low based on the nature and extent of the applicant’s criminal offending over the past few years and the potential for intervention by mental health professionals under the provisions of the Mental Health Act.

25. For these reasons the ground for cancellation in s.116(1)(e) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    CONSIDERATION – HOW SHOULD THE DISCRETION BE EXERCISE?

26. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 -  ‘General visa cancellation powers’. Not all the specified factors are relevant to the circumstances of the applicant.

    The purpose of the visa holder’s travel to and stay in Australia: whether the visa holder has a compelling need to travel to or remain in Australia

100.   The applicant travelled to Australia as the holder of a subclass 444 visa. The visa permits the holder to remain in Australia while they are a New Zealand citizen[6]. That visa was first granted to the applicant on 14 February 1997 when he was four years old.  That visa ceased to operate each time he departed Australia and a new visa granted to him each time he re-entered Australia on 29 April 2001, 11 January 2011 and 22 January 2012. Had the applicant’s visa not been cancelled, it would have continued to permit him to remain living in Australia indefinitely.

[6] Clause 444.511 of Schedule 2 of the Migration Regulations 1994

101.   The applicant has resided in Australia with his family since 1997.  He has completed all of his schooling in Australia and played rugby league with a local club.  He lives with his mother, younger brother and elder sister and her two children and has an older brother living nearby.  He is father to a [young age] son who is an Australian citizen and uncle to his sister’s young children.  He suffers from a serious mental illness and is cared for by his mother.  He has not resided in any country other than Australia since he was four years old. 

102.   We consider the applicant has a compelling need to remain in Australia given his illness and the care he receives from his mother.  He is the father to a [young age] Australian citizen child and has a close relationship with his siblings and their families.  We give this consideration significant weight against the cancellation of the visa.

The extent of compliance with visa conditions: whether the visa holder has otherwise complied with visa conditions now and on previous occasions

103.   There are no conditions attaching to a subclass 444 visa[7].  We give this factor no weight for or against the visa cancellation.

[7] Clause 444.6 of Schedule 2 of the Migration Regulations 1994

The degree of hardship that may be caused to the visa holder and any family members

104.   We accept that the cancellation of the visa will cause significant hardship to the applicant and his immediate family.  The applicant suffers from a serious mental illness which has seen him hospitalised on six occasions since November 2013.  He is currently the subject of an involuntary treatment order under the Mental Health Act. Pursuant to that order, he resides in the community and is cared for by his mother.  He has been receiving treatment for his mental illness from [a] Recovery and Prevention of Psychosis (RAPP) team since 2013.

105.   We accept his mother’s evidence that if the applicant is forced to return to New Zealand, she will accompany him in order to continue to provide care to him.  This will require her to leave her job at [name], where she is currently employed as a youth worker.  It will also require her to be separated from her daughter and her daughter’s two young children with whom she currently lives.  Her youngest son will accompany her and the applicant to New Zealand. He is an Australian citizen who is currently in year 8 of high school. The applicant will also be separated from his three year old son, who lives with his Australian citizen mother in Melbourne. 

106.   We consider this factor weighs significantly against the cancellation of the visa.

The circumstances in which the ground for cancellation arose

107.   PAM3 requires the Tribunal to consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing. It states that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder.

108.   PAM3 also makes specific reference to the cancellation of a visa in circumstances where a visa holder suffers from mental health issues.

Visa holder’s capacity to understand and engage

In all cases, particular care should be exercised if there are concerns that a visa holder lacks mental capacity - for example, due to mental health issues - to understand and engage in the cancellation process. In these circumstances, it may be inappropriate or even unlawful to cancel the visa. Delegates should seek legal advice (email LOHD) about such cases before issuing a s119 notice.

109.   The Departmental file does not indicate any such legal advice was sought in this instance, even though the applicant was subject to an involuntary treatment order under the Mental Health Act 2004 at the time his visa was cancelled.

110.   Copies of orders of [a] Magistrates’ Court dated 6 June 2016 state that on that date the applicant was convicted of a number of offences, other offences were withdrawn or struck out and the Court made the following orders about treatment and rehabilitation as part of the Community Corrections Order that was made on that date:

Undergo the following treatment and rehabilitation:

-     Assessment and treatment (including testing) for drug abuse or dependency as directed

-     Mental health assessment and treatment as directed

-     Offending behaviour program/s as directed

This condition starts on 6/6/16 and goes on for 12 months

111.   The applicant gave evidence that he did not receive the treatment and rehabilitation set out in that order, nor did he know where he could go to get that treatment.  [Mr EA] gave evidence that responsibility for ensuring the applicant was directed to those services lay with the Department of Community Corrections, which should have issued a referral to an agency such as YSAS to undertake the assessment, treatment and programs referred to in the court order.   [MR EA] gave evidence that he couldn’t say whether that referral had ever been made, other than to say it hadn’t been made to YSAS which was just one of the organisations that accepted such referrals.  He gave evidence that it may not have been issued because of widely known resource issues in the adult corrections regime, where a corrections officer might be responsible for 60-80 clients at once.

112.   We consider it significant that a court ordered the applicant undertake treatment and rehabilitation in June 2016, but that it appears no action was taken in respect of the court order before the applicant’s detention in February 2017.  Since his detention, he has not received any treatment and rehabilitation pursuant to that order.  Nor is it possible for his treating team at Monash Health to continue to treat the applicant under his involuntary treatment order while he remains in immigration detention.

113.   We find that the applicant’s mental illness is a significant extenuating factor in his criminal offending. In making this assessment we note the evidence of [MR E], the applicant’s former case worker from Youth Support and Advocacy Centre who has known him since March 2010 and worked closely with the applicant and his family until the end of 2015.  He gave evidence that in 2013, he and other workers in YSAS started to see a significant decline in the applicant’s mental state leading to his diagnosis with bipolar disorder in 2014.  His diagnosis required a significant period of adjustment for the applicant and his family while his treating team tried different medications and treatment options.  His treatment was made more complex by his substance abuse and the medication caused significant periods of heightened depression and low motivation.

114.   [MR EA] gave evidence that while the applicant’s early criminal offending was enmeshed with his substance use, he observed his later offending correlated with periods in which the applicant was particularly unwell.  A letter from the applicant’s mental health clinician at Monash Health [RAPP] confirms the applicant requires ongoing psychiatric treatment and therapeutic intervention to maximise his recovery and prevent relapse.

115.   [MR EA] of YSAS gave evidence that if the applicant was released from detention, he would be eligible for an intensive program of support which would involve multiple contacts per week and which would enable YSAS to also offer support to his mother and family.  He would be allocated a case worker and have access to a suite of program activities through YSAS’s day program, as well as a range of other services including residential rehabilitation, drug and alcohol counselling and mental health services.  His case worker would assist him in meeting the obligations of his Community Corrections Order and Involuntary Treatment Order and would support him to attend the various health and welfare appointments that he needed.  [MR EA] gave evidence that these services are part of a new program that was not previously available to the applicant and are not time limited.  He gave evidence the applicant could be assisted in this way until he is 25 years old.

116.   For the reasons set out earlier in this decision, we have concluded that the applicant’s criminal offending has not generally been violent, with the notable exception of the 2010 offences when he was aged 13. In 2015 he was convicted of resisting and assaulting a police officer and emergency worker in the circumstances set out above.  

117.   We consider that the applicant’s mental illness and ongoing treatment constitute significant extenuating circumstances beyond the control of the applicant that weigh against cancellation of the visa.

The applicant’s past and present conduct towards the department

118.   The delegate’s decision indicates there is no information to indicate any past or present adverse behaviour towards the department. The applicant has engaged with the Department by responding to the NOICC and providing information relevant to these proceedings.  We give this factor some weight in the applicant’s favour.

Whether there are mandatory legal consequences

119.   As a result of the visa cancellation, the applicant’s continued presence in Australia became unlawful and he was taken into immigration detention on 16 February 2017 where he remains.

120. Section 48 of the Migration Act provides that certain applicants who have had their visas cancelled may only apply in Australia for certain classes of visas as prescribed in r 2.12 of the Migration Regulations. Otherwise, visa holders who have had their visas cancelled may apply for a visa offshore, although relevantly there may be a time restriction of three years preventing the grant of certain visas for the applicant. To date the applicant has not been granted any other visa and we consider his ongoing detention, particularly in light of his mental illness, weighs in favour of the visa cancellation being set aside.

Whether there would be consequential cancellations under s.140

121.   The material before the Tribunal does not indicate that there would be any consequential cancellations under s.140 as a result of the applicant’s visa cancellation.  We give this factor no weight for or against the visa cancellation.

Whether any international obligations would be breached as a result of the cancellation

122.   PAM3 requires the Tribunal to have regard to Australia’s obligations under relevant international agreements that would be breached as a result of the visa cancellation.  Australia is a signatory to the UN Convention on the Rights of the Child 1989 (CROC) and the International Convention on Civil and Political Rights 1996 (ICCPR), both of which protect the rights of children and families. 

123.   Articles 3 and 9 of CROC state:

3. In all actions concerning children … the best interests of the child shall be a primary consideration.

. . .

9. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. . .

124.   Article 23 of the ICCPR states:

The family is the natural and fundamental group unit of society and is entitled to protection by society and the state.

125.   Consistently with these international obligations, PAM3 sets out that in a situation where there are children in Australia whose interests could be affected by the cancellation the best interests of the children are to be treated as a primary consideration[8]. 

[8] PAM3 – Visa cancellation instructions - General visa cancellation powers (s109, s116, s128, 134B & s140) - Australia’s international obligations – Non-refoulement obligations; MIMA v Teoh (1994) 183 CLR 273.

126.   In this case there are a number of Australian citizen children who are affected by the decision to cancel the applicant’s visa, being his 3 year old son, his thirteen year old brother and the two young children of the applicant’s sister, aged seven and five. The Australian courts have held that not only are their interests as children to be assessed as a primary concern, but also their interests as Australian citizens[9].

[9] W157/00A v MIMA (2001) 190 ALR 55 per Lee J at 81

127.   The applicant was aged  [age] when his son was born.  He travelled to [suburb 2] to be present at his birth and continued to have regular contact with his son until he was detained.  His family remain on good terms with his son’s mother who lives in a nearby suburb and they have care of the applicant’s son for about three days per fortnight, including overnight care.  Up until the time the applicant was placed in detention, his mother was taking $100 from his newstart allowance each fortnight to pay for items for the applicant’s son.  His son’s mother and grandmother have each provided letters of support to the Tribunal. His son’s mother states that although she and the applicant are no longer together, he is still able to spend time with their son and she feels if he were to be deported it would have a huge impact on their son.  His son’s grandmother states that she believes it is important that the applicant is able to reside in Australia to help raise his young son and it would be a huge disadvantage for both father and son if he were deported.

128.   The applicant’s mother gave evidence that should the applicant be deported back to New Zealand, she would have no choice but to return with him as his carer.  In those circumstances, she would take her youngest son, who is currently in high school.  He is an Australian citizen who was born and has always resided in Australia and is highly integrated into the Australian community.

129.   We are satisfied that it is in the best interests of the applicant’s son and his sister’s children that they continue to have close contact with their father, grandmother and uncle.  We accept that if the visa cancellation is not set aside, the applicant’s son will be separated from his father, grandmother and uncle who will relocate to New Zealand.  His sister’s young children in Australia will also be separated from their grandmother and uncles. His younger brother will be uprooted from his home and school and separated from his elder sister and extended family in Australia. We are satisfied it is in his younger brother’s best interests that he remain living in Australia with his mother and extended family as is currently the case.

130.   We consider this factor weighs significantly against the cancellation of the visa.

Any other relevant matters

131.   As noted above, the applicant travelled to Australia as the holder of a subclass 444 visa, being a visa available to New Zealand citizens holding a valid New Zealand passport who are neither a ‘behaviour concern non-citizen’ nor a ‘health concern non-citizen’[10].  A ‘health concern non-citizen’ is defined in s.5 of the Act as person who is suffering from a prescribed disease or physical or mental condition, the only prescribed disease currently being tuberculosis.

[10] Section 32 of the Migration Act

132.   A ‘behaviour concern non-citizen” is also defined in s.5 of the Act.  Sub-paragraphs (a) and (b) of that definition include a person who has been convicted of one or more crimes and sentenced to imprisonment for at least one year, or to periods that add up to at least one year.  We note that the applicant has not been sentenced to imprisonment in relation to any of his criminal offences and therefore would not meet the requirements of a ‘behaviour concern non-citizen’ on the bases set out in sub-paragraphs (a) and (b).  The material before the Tribunal does not indicate that he has been found guilty or acquitted of a crime while of unsound mind as set out in sub-paragraph (c) of that definition, nor that he has been removed, deported or excluded from Australia or another country as set out in sub-paragraphs (d) and (e). 

133.   While the applicant’s criminal offending forms the basis for the cancellation of his visa, it does not reach a level of severity as would permit the refusal of the visa under sections 5 and 32 of the Act. Nor does it reach the level of offending that provides for refusal or cancellation under s 501 where the visa holder has a ‘substantial criminal record’[11]. The Minister may cancel a visa if he reasonably suspects that the visa holder does not pass the character test and the visa holder does not satisfy him that the visa holder passes the test (s 501(2)). A person will not pass the character test based on the matters set out in s 501(6) which, relevant to the matters alleged in this case, includes the Minister having a reasonable suspicion that the visa holder has been or is member of a group and that group has been or is involved in criminal conduct. Having regard to the evidence before us, we are not satisfied that the applicant is or has been a member of the Apex gang.

[11] Section 501(7) provides that a person has a substantial criminal record where they have been sentenced to death, imprisonment for life, imprisonment for at least one year, or to periods that add up to at least one year or where a person has been found guilty or acquitted of a crime while of unsound mind.

134. The decision of the delegate was not made by reference to s 501 and on one view this provision is not relevant to our consideration. However, it is relevant that there is a statutory regime for New Zealand citizens who have been granted special category visas which is different from other visas. For instance, criminal convictions of New Zealand citizens on a special category visa will not enliven the power of cancellation under s 116(1)(g) because those visas have been specifically excluded under r 2.43. The disqualifying criteria under s 32 for the grant of a special category visa sets a standard for criminal offending which is similar to the character test provided for under s 501 based on a substantial criminal record.

135. While we accept that the Minister may proceed to cancel a special category visa under s 116(1)(e) rather than s 501, we are of the view that the level of risk and severity of the criminal offending is a relevant matter to be taken into account in exercising the discretion.

136.   This weighs against the cancellation of the visa.

CONCLUSIONS

137.   We consider that the applicant’s criminal offending has at times been serious, although most of his convictions are not for crimes of violence.  We have accepted he has been associated with a number of people who are known or believed by Victoria Police to be members of the Apex gang, although we have not accepted he himself is or has been a member of that gang. 

138.   We note the applicant’s most serious criminal offence took place seven years ago when he was aged 13 and that his offending since that time has generally not involved crimes of violence, with the exception of resisting and assaulting a police officer and emergency worker in August and November 2015.  However we accept there have been a number of other occasions between 2007 and 2017 when the applicant has had contact with police but not charged and we accept on some of those occasions he was reported to be aggressive.  We accept his behaviour remains of concern and he remains at risk of re-offending, particularly in view of his serious mental illness.  All of these matters weigh towards cancellation of his visa.

139.   Weighing against these matters are the applicant’s long residence in this country, the fact his immediate family all reside here and the hardship that will be caused to the applicant and his family if his visa is cancelled. He will be separated from his three year old son and two nephews and their interests as children and as Australian citizens are to be treated as a primary consideration.  We consider that the applicant’s mental illness has been a significant factor in his criminal offending since at least 2013 and to that extent, the circumstances in which the ground for cancellation arose were beyond his control. 

140.   He has not been sentenced to a jail term for any of his convictions and as such his criminal offending is not serious enough to put him in the category of a ‘behaviour concern non-citizen’ or to fail the character test in s.501. While a court ordered on 6 June 2016 that he receive treatment and rehabilitation as part of his Community Corrections Order, we have found that court order was not implemented. We are satisfied that if the applicant is released from immigration detention, he will be eligible for a program of intensive support by YSAS including day programs, residential rehabilitation and drug and alcohol counselling.  This is a level of support that the applicant and his family have not received in the past. He also remains the subject of an involuntary treatment order under the Mental Health Act and we are satisfied he will continue to receive treatment for his bipolar disorder if he is released from immigration detention. Pursuant to that order he will be treated with depot medication as well as assertive case management and follow up in the community by the Monash Health RAPP team and will have access to recovery programs and pre-employment activities.

141.   Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

DECISION

142.   The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

Jan Redfern
Deputy President

Alison Murphy
Member

Annexure A – Convictions and Penalties Imposed

Court	Court Date	Offence	Penalty
[a Magistrates Court]	6 June 2016	Assault police officer Resist police officer Commit indictable offence whilst on bail granted (2 charges) Use abusive words in public Contravene police direction to move on Obtain property by deception Resist emergency worker on duty Assault emergency worker on duty	Convicted and a community correction order for 12 months. The order commences on 6/06/2016.
[a Magistrates Court]	6 June 2016	Possess cannabis (two charges) Use cannabis	Convicted and discharged
[a Magistrates Court]	6 July 2015	Theft from shop	Without conviction, adjourned to 05/07/2016
[a Children’s Court]	2 August 2013	Theft from shop (shop steal) (2 charges)	Without conviction, adjourned to 1/8/2014. The offender is released upon entering a good behaviour on the amount of $300. The offender is to be of good behaviour during the period of the good behaviour bond.
Melbourne Children’s Court	22 June 2011	Breach of probation order Breach re 20/08/2010 robbery, recklessly cause injury, armed robbery	Without conviction, the accused is placed on probation for a period of 12 months to 21/06/2012
[a Children’s Court]	20 August 2010	Robbery, recklessly cause injury, armed robbery	Without conviction, the accused is placed on probation for a period of 12 months to 19/8/2011