1721573 (Migration)

[2018] AATA 509

1721573 (Migration) [2018] AATA 509 (6 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1721573

MEMBER:K. Chapman

DATE:6 February 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 06 February 2018 at 2:41pm

CATCHWORDS

Migration – Cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – Risk to the good order of the Australian community – Risk to the health or safety of individuals – Lengthy and varied criminal records – Emotional and financial hardship for the applicant and family members – Downplaying the seriousness of offending

LEGISLATION

Migration Act 1958, ss 116, 359, 359A, 359AA, 375A

CASES

Botha v Minister for Immigration and Border Protection (2017) FCA 362
Tien v MIMA (1998) 89 FCR 80

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated [in] August 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’).

2. The delegate cancelled the visa under s.116(1)(e)(i) on the basis that the applicant had a history of criminal offending and pending criminal charges, and therefore his presence 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 a segment of the Australian community.’ The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. [In] January 2018, the Tribunal issued a Summons to the Commissioner of the [State 1] [Police] seeking documents relating to the applicant’s criminal history. On 8 January 2018, the applicant’s representative advised the Tribunal that he had been transferred from criminal custody to immigration detention. On 11 January 2017, the Tribunal wrote to the applicant pursuant to sections 359A and 359(2) of the Act inviting him to respond to information contained in the delegate’s decision, and in [State 1] [Police] documentation returned by Summons, regarding his criminal history. For completeness, the Tribunal notes that it obtained permission from the [State 1] [Police] to release a full copy of the applicant’s ‘[State 1] Person History’ and on 22 January 2018 it reissued the invitation pursuant to sections 359A and 359(2) of the Act, enclosing that document. On 29 and 30 January 2018, the Tribunal received material from the applicant responding to the invitation including submissions, references, and supporting documentation. The aforementioned material has been duly considered by the Tribunal.

4. The applicant appeared before the Tribunal on 30 January 2018, via video link from immigration detention, to give evidence and present arguments. He confirmed he was able to hear the proceedings and agreed at the end of the review hearing that he was afforded a fair opportunity to present his case. The Tribunal also received oral evidence in person from Mrs J (who is married to, but separated from, the applicant), Ms A (the ex-wife of the applicant), Mrs C (the applicant’s sister), and Mr P (the applicant’s brother-in-law). The Tribunal notes that the applicant decided not to have a fifth witness, his brother, give evidence. The applicant was represented in person by his registered migration agent, who is a solicitor. Following the review hearing, on 2 February 2018, the Tribunal received a submission on behalf of the applicant advising he had no further response to information raised with him pursuant to s.359AA of the Act, a copy of a current Protection Order Varied Order, and information from the [State 1] [Police] confirming there were no pending criminal matters concerning him. The aforementioned material has been duly considered by the Tribunal.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   BACKGROUND

6. [The applicant], the applicant, is [an age] year old national of New Zealand. His most recent Subclass 444 visa, issued [in] July 2016, was cancelled by a Departmental delegate [in] August 2017. At that time he was held on remand at [a] Correctional Centre with multiple criminal charges pending. [The applicant] first arrived in Australia [in] February 1999 at the age of [age] years, having completed his secondary schooling in New Zealand. He came to Australia with his parents and siblings. [The applicant] has made [number] short return visits to New Zealand since his first arrival in Australia, in [specified years]. He has two Australian citizen sons and he is separated from his second wife, Mrs J, however they plan to resume their relationship.

7. [The applicant] obtained multiple criminal convictions between the years of 2001 and 2017 for matters including possessing dangerous drugs, assaulting police, using a carriage service to menace harass or cause offence, contravention of domestic violence orders, unlawful possession of weapons, and serious assault of police officer whilst pretending or is armed with a weapon (his criminal history is outlined in more detail below). [The applicant] received several sentences of imprisonment in 2017, with a head sentence of 12 months, and was in custody at [a] Correctional Centre between May and December 2017. Following his incarceration, [the applicant] was taken into immigration detention where he remains at the time of this decision.

8. Information obtained from the [Police] of [State 1] and [State 2] confirms the applicant has the following proven criminal history:

   -[In] 2001 – ([State 1]) Enter or in dwelling with intent to commit indictable offence (on [date]). Conviction recorded, sentenced to imprisonment for 18 months (wholly suspended for a period of 2 years) and compensation of $[amount];

   -[In] 2003 – ([State 1]) Breach bail undertaking (on [date]). Conviction recorded, fined $150;

   -[In] 2003 – ([State 1]) Enter dwelling with intent to commit an indictable offence (on [date]). Conviction recorded, fined $1,500;

   -[In] 2004 – ([State 1]) Breach of suspended sentence imposed [in 2001]. Breach proven, no further penalty imposed;

   -[In] 2006 – ([State 1]) Possessing dangerous drugs (on [date]). Conviction recorded, fined $600;

   -[In] 2006 – ([State 1]) Commit public nuisance (on [date]). Conviction recorded, fined $600;

   -[In] 2006 – ([State 1]) Obstruct Police Officer (on [date]). Conviction recorded, fined $400;

   -[In] 2007 – ([State 1]) Assault Police Officer (on [date]). Conviction recorded, probation for 7 months;

   -[In] 2007 – ([State 1]) Obstruct Police Officer (on [date]). Conviction recorded, probation for 7 months;

   -[In] 2008 – ([State 1]) Failure to appear in accordance with undertaking (on [date]). No conviction recorded, fined $500;

   -[In] 2008 – ([State 1]) Obstruct Police Officer (on [date]). Conviction recorded, probation for 2 years;

   -[In] 2008 – ([State 1]) Commit public nuisance (on [date]). Conviction recorded, probation for 2 years;

   -[In] 2008 – ([State 1]) Failure to appear in accordance with undertaking (on [date]). Conviction recorded, probation for 2 years;

   -[In] 2008 – ([State 2]) Common assault (on [date]). Conviction recorded, S.9 Bond imposed (12 months comply with AVO);

   -[In] 2008 – ([State 2]) Drive with low range PCA (on [date]). Conviction recorded, fined $300, disqualified from driving for 6 months;

   -[In] 2008 – ([State 2]) Licence expired less than 2 years before, first offence (on [date]). Conviction recorded, no other penalty;

   -[In] 2009 – ([State 1]) Breach of probation order imposed [in 2007]. Conviction recorded, fined $350;

   -[In] 2009 – ([State 1]) Breach of probation order imposed [in 2008]. Conviction recorded, fined $400. Order revoked and re-sentenced for original offences with convictions recorded and sentenced to imprisonment for 3 months (wholly suspended for a period of 18 months);

   -[In] 2010 – ([State 2]) Contravene Prohibition/Restriction in AVO (Domestic) (on [date]). Conviction recorded, fined $500;

   -[In] 2010 – ([State 2]) Contravene Prohibition/Restriction in AVO (Domestic) (on [date]). Conviction recorded, S.9 Bond imposed for 2 years;

   -[In] 2010 – ([State 2]) Contravene Prohibition/Restriction in AVO (Domestic) (on [date]). Conviction recorded, fined $500;

   -[In] 2014 – ([State 1]) Contravene direction or requirement (on [date]). No conviction recorded and not further punished;

   -[In] 2017 – ([State 1]) Using a Carriage Service to Menace, Harass or Cause Offence (on [date]). Conviction recorded, sentenced to imprisonment for 6 months with recognisance $3,000 and good behaviour period 2 years;

   -[In] 2017 – ([State 1]) Contravention of Domestic Violence Order (on [date]). Conviction recorded, sentenced to imprisonment for 6 months (concurrent);

   -[In] 2017 – ([State 1]) Using a Carriage Service to Menace, Harass or Cause Offence (on [date]). Conviction recorded, sentenced to imprisonment for 12 months with recognisance $3,000 and good behaviour period 2 years;

   -[In] 2017 – ([State 1]) Contravention of Domestic Violence Order (on [date]). Conviction recorded, sentenced to imprisonment for 12 months concurrent;

   -[In] 2017 – ([State 1]) Serious Assault Police Officer Whilst Pretending / Is Armed With a Weapon (on [date]). Conviction recorded, sentenced to imprisonment for 12 months concurrent;

   -[In] 2017 – ([State 1]) Possessing Dangerous Drugs (on [date]). Conviction recorded, sentenced to imprisonment for 14 days concurrent;

   -[In] 2017 – ([State 1]) Unlawful Possession of Weapons Category A, B or M (on [date]). Conviction recorded, sentenced to imprisonment for 7 days concurrent;

   -[In] 2017 – ([State 1]) Possessing Dangerous Drugs (on [date]). Conviction recorded, sentenced to imprisonment for 7 days concurrent;

   -[In] 2017 – ([State 1]) Possess Utensils or Pipes etc. That Had Been Used (on [date]). Conviction recorded, sentenced to imprisonment for 7 days concurrent;

   -[In] 2017 – ([State 1]) Using a Carriage Service to Menace, Harass or Cause Offence (on [date]). Conviction recorded, sentenced to imprisonment for 3 months with recognisance $3,000 and good behaviour period 2 years;

   -[In] 2017 – ([State 1]) Contravention of Domestic Violence Order (on [date]). Conviction recorded, sentenced to imprisonment for 3 months concurrent;

   -[In] 2017 – ([State 1]) Common Assault Domestic Violence Offence (on [date]). Conviction recorded, sentenced to imprisonment for 3 months concurrent;

   -[In] 2017 – ([State 1]) Unlawful Use of Motor Vehicles, Aircraft or Vessels (on [date]). Conviction recorded, sentenced to imprisonment for 3 months concurrent; and

   -[In] 2017 – ([State 1]) Receiving Tainted Property (Between [two dates]). Conviction recorded, sentenced to imprisonment for 3 months concurrent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. Under s.116 of the Act, the Minister may cancel a visa if he is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, these include the ground set out in s.116(1)(e) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

10. A visa may be cancelled under s.116(1)(e) if the Minister or the Tribunal 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 a segment of the Australian community; or the health or safety of an individual or individuals.

11. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

    Section 375A Certificate

12. The Tribunal notes that a Certificate pursuant to s.375A of the Act dated 15 September 2017 was contained in the Departmental file with respect to folios 1-13, 20, 23, and 34. The Certificate indicates disclosure of the material would be contrary to the public interest because it contains ‘folio 1-13: [External party information – [State 1] Police, Referral Internal DIBP processes]’ and ‘folio 20, 23, 34: Internal email communication DIBP, Internal process.’ The Certificate is unsigned. During the review hearing, the Tribunal provided a copy of the s.375A Certificate to the applicant and invited submissions upon its validity. The Tribunal expressed its view that the Certificate was not valid as no public interest ground is specifically stated in it, rather there is a mere description of the material. Accordingly, the Tribunal released the material to the applicant, with personal identifiers redacted. The Tribunal advised that it proposed to place no weight upon the material at folios 1-2 as it contained a superseded [State 1] Person History which was no longer relevant to the review given it referred primarily to pending charges which were now finalised. Further, the Tribunal advised that it proposed to place no weight upon the material at folios 3-5, 12-13, 20, 23, and 34 of the file as it contains documents of an administrative character which are not relevant to the review. There being no objection from the applicant, the Tribunal has placed no weight upon the aforementioned documents.

13. The Tribunal advised the applicant that the material at folios 6-11 might be relevant to the review, as it contained information from the [State 2] [Police] concerning offences proven against the applicant between 2008 and 2010. Although a summary of that material was put to the applicant in the s.359A correspondence prior to the review hearing, the Tribunal also put this material to the applicant during the review hearing in accordance with the procedures in s.359AA of the Act. On 2 February 2018, the Tribunal received submissions from the applicant’s representative stating, “In relation to the documents provided to the Tribunal subject to a Certificate under s 375A, the Applicant does not consider that this material discloses any new, adverse information that has not already been addressed in the Applicant’s written submissions and oral evidence.” The Tribunal has duly considered that submission.  

    Evidence at the review hearing

14. The applicant’s oral evidence, which was provided by video link from immigration detention, may be summarised as follows. He confirmed that his statement of 29 January 2018 is true and correct. The Tribunal discussed with the applicant the matter of any pending criminal charges. Following receipt of post hearing submissions on 2 February 2018, enclosing updated information from the [State 1] [Police], the Tribunal is satisfied that there are no pending criminal charges in relation to the applicant. Accordingly, no weight is placed upon prior information from the [State 1] [Police] indicating that two charges are outstanding.   

15. The applicant confirmed to the Tribunal that he is the subject of a Protection Order with respect to his separated wife, Mrs J, and her four children from another relationship (his step-children). A copy of this Order was not provided to the Tribunal at the time of the review hearing. The applicant told the Tribunal he was “almost positive” that their own biological son, Master K (who is now approximately [age]), is not included in that Order. When asked by the Tribunal to describe the circumstances leading to this Order, the applicant advised that he was using drugs at the time (specifically Methamphetamine) and going through a relationship breakdown with Mrs J. He told the Tribunal that he did not physically hurt Mrs J, but verbally abused her. The applicant told the Tribunal that he threatened to kill her. He advised that his four step-children and his son were in the house at the time of this incident and would have heard him. Mrs J then called the police and the Protection Order was subsequently made. His written statement dated 29 January 2018, and submissions on his behalf, indicate that Mrs J is seeking to have the Protection Order vacated.

16. When asked by the Tribunal if he was subject to any other Protection Orders, the applicant advised such an Order was placed upon him in around 2009 with respect to his ex-wife, Ms A. That Order had since expired and they were in contact since that time. They have a biological son together, Master N, who is now aged [age]. When asked by the Tribunal to explain the circumstances leading to that Order, the applicant explained that he went to Ms A’s residence to collect Master N for a visit, she did not allow this, an argument ensued and he took the boy without the consent of Ms A. The police (in [State 2]) were called and intervened to return the boy to Ms A’s care. The applicant advised there was no physical struggle during the incident and the Order had since expired. The Tribunal notes that information from the [State 2] [Police], put to the applicant pursuant to both s.359A and s.359AA of the Act, indicates he was convicted of ‘common assault, drive with low range PCA and licence expired less than 2 years before (first offence)’ in relation to conduct [in] July 2008. Further, the applicant’s statement of 29 January 2018, at paragraph 32, confirms that his conduct [in] July 2008 concerned the incident when he took Master N against the wishes of Ms A. It reads, “On [a date in] July 2008 I was convicted of common assault in [State 2]. That incident involved [Ms A]. I had gone to her house to pick up [Master N] but she’d refused to let me take him. I bumped into her and plead guilty to common assault.”  

17. The Tribunal raised with the applicant that the circumstances of these Protection Orders might tend to suggest that his presence 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 a segment of the Australian community’, inviting his comment. He did not wish to comment in reply. The Tribunal raised with the applicant that the aforementioned circumstances might tend to weigh in favour of cancelling his visa, inviting his comment. He did not wish to comment in reply. Following the review hearing, on 2 February 2018, the applicant submitted a copy of a Protection Order Varied Order made [in] January 2018 by the [Town 1] Magistrate’s Court. It orders the applicant to be of good behaviour and not commit domestic violence, amongst other restrictions, against Mrs J, Master K and the four step children. That Order remains in force at the time of this decision.

18. Discussion turned to the applicant’s proven criminal history, noting that this had been put to him in s.359A correspondence prior to the review hearing. The Tribunal took the applicant through his various criminal offences, which are listed above in this decision record. When asked by the Tribunal of the circumstances surrounding his convictions in 2017 for using a carriage service to menace, harass or cause offence, the applicant explained that he sent abusive messages to Mrs J using his mobile phone with the intention of causing her emotional hurt. He stated that he had naked photographs of Mrs J and threatened to send these to others. He indicated he threatened to physically harm Mrs J in the messages if she did not let him see his son, Master K. He confirmed he received sentences of imprisonment ranging from 12 months, 6 months and 3 months in relation to these offences. The Tribunal raised with the applicant that the sentences imposed tended to suggest the Court took these offences quite seriously and invited his comment. The applicant declined to comment.

1. When asked by the Tribunal of the circumstances surrounding his convictions in 2017 for contravening a Domestic Violence Order, the applicant explained this concerned his conduct towards Mrs J. He confirmed he received sentences of imprisonment ranging from 12 months, 6 months and 3 months in relation to these offences. The Tribunal raised with the applicant that the sentences imposed tended to suggest the Court took these offences quite seriously and invited his comment. The applicant responded that the day before he went to prison he texted Mrs J threatening to kill her and for this he received the 12 month sentence.

2. When asked by the Tribunal of the circumstances surrounding his conviction in 2017 for common assault – domestic violence offence, the applicant advised he was going through a relationship breakdown with Mrs J who had advised him she was in a relationship with another person. He indicated he was devastated, crying, grabbed her by the jacket and pushed her against a car, adding “…and that’s what they call assault.” When asked by the Tribunal if he thought it was an assault, the applicant stated “the definition of assault these days is just touching someone without their consent…[Mrs J] would never call that assault normally”, adding that it was the Police who wrote the report and charged him. The Tribunal raised with him that he pleaded guilty and was sentenced to 3 months imprisonment, which tends to suggest the Court took this offence quite seriously and invited his comment. The applicant declined to comment. The Tribunal raised with him that his previous comments might be regarded as him downplaying the seriousness of his offending and invited his comment. The applicant declined to comment.

3. When asked by the Tribunal of the circumstances surrounding his conviction in 2017 for serious assault of a police officer whilst pretending or is armed with a weapon, for which he was sentenced to 12 months imprisonment, the applicant advised that the police were looking for him in relation to breach of a Domestic Violence Order and for failure to appear. He was distraught due to events of the previous day when Mrs J informed him she was in another relationship. He told the police officer to “piss off” and threatened to shoot him. The applicant stated he was never armed. The Tribunal read to the applicant verbatim a portion of the facts from the [State 1] [Police] Court Brief, which had been sent to him via the s.359A correspondence of 22 January 2018, concerning the conviction for the aforementioned offence (at page 47 of the Tribunal file):

   “At approximately 8:40am on [a date in] May 2017 police attended the offence location [redacted], in attempt to locate the defendant [applicant name] in relation to an incident that occurred on the evening of the [previous day].

   On approaching the address the defendant refused to let police enter the dwelling or surrender himself. The defendant stated to police that he was armed with a gun and to leave the address, as a result of this threat, the [officer] attempted to contain the defendant in the dwelling and directed him to surrender to police. The defendant [applicant name] continued to refuse to leave the dwelling or comply with police directions, wilfully obstructing police. Due to police suspecting the defendant was armed with a firearm, police [response] Team and negotiators were deployed.

   A siege situation ensued with the defendant continually refusing to comply with directions by negotiators. At approximately [time] the defendant informed police that he would put a knife to his room mate [redacted] throat and use her as a shield, and that police would have to shoot him.

   At approximately [time] [redacted] exited the address. At approximately [time] on the same date the defendant surrendered himself to police and was taken into custody. The defendant was arrested on outstanding matters and transported to [a location]. The defendant was subsequently charged and is due to appear in [a] Magistrates Court on [a date in] May 2017.”       

4. The applicant explained that he was never armed during the incident. The Tribunal raised with the applicant that the conviction and sentence tends to suggest the Court took the matter seriously and invited his comment. He responded that he could provide a statement from the female he held in the siege to confirm that she was never in danger of having a knife put to her throat. The Tribunal advised the applicant that it would consider any post hearing material he wished to submit, however he must note that it could not look behind the convictions of the Court. At the time of this decision, no such statement was received. For completeness, the Tribunal accepts that the facts basing the conviction concern the applicant threatening to shoot police and threatening to put a knife to his room mate’s throat, and further it is accepted that he did not actually shoot police or stab his room mate in the throat. However, the Tribunal considers this offending to be extremely serious, particularly given that the applicant was sentenced to 12 months imprisonment for this conduct.

5. When asked by the Tribunal of the circumstances surrounding his convictions in 2017 for unlawful possession of weapons, possessing dangerous drugs, possessing utensils or pipes etc., unlawful use of motor vehicles/aircraft or vessels, and receiving tainted property, the applicant explained that he had a mate who was in a car chase who led police to his residence, although he himself was not involved in that car chase. Thereafter, the police entered the residence and found the items for which he was convicted of the aforementioned offences. When the Tribunal asked the applicant to describe the unlawful weapons located, he replied that “it was just a little BB gun” and he didn’t realise it was against the law to possess it. The Tribunal notes that he pleaded guilty to that particular offence.

6. The Tribunal raised with the applicant that between 2001 and 2014 he was convicted of more than 15 offences in [State 1], with some of these matters involving obstructing or assaulting Police Officers, inviting him to outline the circumstances of this offending. The applicant stated “I’ve never physically tried to assault or obstruct a Police Officer”, citing that on one occasion he was out at night and “hugged a Police Officer…but it was taken as an assault.” The Tribunal raised with the applicant that his answer seemed to downplay the gravity of his conduct, inviting his comment. He replied, “That’s exactly how it happened.”

7. The Tribunal referred to the Departmental delegate’s visa cancellation decision, which was sent to him pursuant to the s.359A invitation of 22 January 2018, indicating that in 2010 in [State 2] he received fines and a Bond regarding contravention of Domestic Violence Orders on three occasions, and also to the applicant’s statement of 29 January 2018 noting these matters. When asked by the Tribunal for the circumstances of this offending, the applicant advised they related to the time when he was ‘splitting’ from Ms A and when he was not allowed to make contact with his son.

8. The Tribunal raised with the applicant that his criminal history, as reflected in the documents sent to him pursuant to s.359A of the Act, might tend to suggest that his presence 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 a segment of the Australian community’, inviting his comment. He replied, “I don’t know what to say.” The Tribunal raised with the applicant that the aforementioned circumstances might tend to weigh in favour of cancelling his visa, inviting his comment. He responded that a lot of his criminal history was in the earlier part of his life when he was young, growing up and learning. He added that there was more to this history most recently when he was with his kids and had relationship issues. For completeness, the Tribunal notes that it put information to the applicant regarding his [State 2] criminal history, pursuant to the procedures in s.359AA of the Act, as has been previously described.

9. The Tribunal discussed with the applicant his background and family circumstances. He advised that he arrived in Australia in 1999 as [an age] year old with his parents and siblings. The applicant confirmed he had completed his secondary schooling in [New Zealand] prior to arriving in Australia. He has travelled back to New Zealand occasionally on short trips and confirmed he returned to Australia most recently [in] July 2016 as he lived in this country. He has lived in Australia since 1999. The applicant indicated that he has never failed to comply with Australian visa conditions. His mother passed away in [City 1] during 2014, his father lives in [Country 1], he has [siblings] who live in [City 1].

10. The applicant’s ex-wife, Ms A resides with their son, Master N. The applicant remains married to Mrs J, although they are separated. Mrs J and Master K live together. None of Mrs J’s four other children live with her. Two are adults and the two minors reside with Mrs J’s [relative]. The applicant did not know why Mrs J’s other children did not live with her. He advised that he did not have a close relationship with these four step-children as it “had been too hard” with the Domestic Violence Order and his imprisonment. When asked by the Tribunal, the applicant confirmed that he currently had no contact with the step-children. The Tribunal raised with the applicant that his lack of knowledge as to why the step-children did not live with Mrs J might suggest he did not have a close relationship with her, inviting his comment. The applicant responded that they were not his children, he didn’t have much to do with them and he is “not really interested in them.”

11. The applicant advised he wants to take steps to continue his relationship with Mrs J and they are talking about this. He confirmed he last saw Master K on [a date in] May 2017 (which is the day prior to him being taken into custody following the siege situation), when the child was [age] old. The applicant advised he was separated from Mrs J when he went into custody and that he only resumed contact with her in November 2017, towards the end of his time in prison. This contact resumed after Ms A suggested to the applicant that Mrs J was willing to get back in touch. The applicant advised that he spoke with Mrs J twice per week for 5 weeks until he was transferred from prison to immigration detention, thereafter talking almost every day. The Tribunal raised with the applicant that his resumption of contact with Mrs J in November 2017 might tend to suggest he had only limited recent contact with her, inviting his comment. The applicant agreed this was the case. He indicated that he and Mrs J were taking things “day by day” and “trying to sort things out.” They have discussed resuming co-habitation, “if she gets her mind around it.” The applicant advised that in December 2017 Mrs J commenced proceedings to amend the Domestic Violence Order. When asked by the Tribunal why there was a flurry of activity concerning him and Mrs J from the end of 2017, the applicant advised it was because they were still in love. When asked by the Tribunal how long he had lived in the same residence as Master K, the applicant indicated about 5 months before the relationship with Mrs J broke down due to domestic violence.

12. The applicant explained that Ms A, his ex-wife, is the full time carer for their son, Master N. The applicant had contact with Master N every second weekend and one week day when he lived [in City 2]. When he moved to [City 1] in 2013 he maintained this frequency of contact until he went to prison. The applicant advised he had regular contact with Ms A and Master N whilst he was in prison, received regular visits from them, and was visited by them in immigration detention in [State 1]. He informed the Tribunal that his son attends [school] and plays [a sport]. Master N also used to engage in [other sports]. The applicant told the Tribunal that Master N was not involved in any of the domestic violence incidents. He also confirmed to the Tribunal that there were no other children in his life other than previously discussed.

13. The applicant’s [siblings] are all married with children and are working. He last saw his nephews and nieces weeks before he was imprisoned and maintained that he had regular contact with them before prison. The applicant has many uncles and aunts in Australia whom he saw regularly prior to prison. He has maintained telephone contact with some of his uncles and cousins. One uncle, who is [an occupation], helped raised money for his legal representation. When asked by the Tribunal if he had relatives living in New Zealand, the applicant replied that he had three to [number] aunties in [New Zealand] whom he knows and in addition has around twenty cousins that he “sort of” knows. When last back in New Zealand (in July 2016) he attended the twenty first birthday party for the daughter of Auntie I, who is named Ms L. During this visit he stayed in [their city] with Auntie M and visited [other relatives]. The applicant’s father lives in [Country 1] and he last visited him there in 2015. He has spoken to his father once since being in prison. He has other family living in [Country 1] including an auntie and [number] cousins who have children.

14. When asked by the Tribunal if he would face hardship if his visa was cancelled, the applicant advised he would suffer mental and financial hardship due to not being involved in his children’s lives and having no family support. He confirmed to the Tribunal that he had no diagnosed mental health conditions, although he injured his back in prison which requires treatment. No medical evidence concerning this matter was before the Tribunal. He stated there was no other hardship to him. When asked by the Tribunal if there was any reason why he cannot live in New Zealand he replied, “not really, no.” When asked by the Tribunal if there are any extenuating circumstances beyond his control that led to his visa being considered for cancellation, he replied “no.”

15. The Tribunal asked the applicant if there would be hardship to any of his family members if his visa is cancelled. He replied that there would be, “mainly” for Master N and Ms A, who would not cope if he returns to New Zealand. The applicant indicated that it would be worse for Master N and these impacts would negatively affect Ms A. He explained that Ms A was born in New Zealand and has lived in Australia since the age of around [age] years, she is now around [age] years old. Master N was born in Australia and has not been to New Zealand (he is an Australian citizen). When asked if there was any reason that Ms A or Master N could not live in New Zealand, the applicant replied that they did not know the country and Ms A doesn’t know her family there. When asked by the Tribunal if there was any reason why he could not maintain contact with Ms A and Master N via telephone and internet if he lived in New Zealand, he indicated that it “costs money” to do this.

16. The applicant explained that it would be upsetting for his siblings if he moved to New Zealand as they had always been living near each other. When asked by the Tribunal if there is any reason his siblings could not travel to New Zealand to see him if he lived there he replied, “no”. The Tribunal asked the applicant if there were any other family members facing hardship if his visa is cancelled. He stated to the Tribunal in response, “my youngest son is too young to at the moment really have any effect on him”, inferring that as he gets older it will as he had seen the adverse effects upon his four step children, who did not have their biological father around. The applicant also advised that Mrs J was hopeful of continuing a relationship with him. When asked by the Tribunal if there was any reason Mrs J and Master K could not travel to New Zealand, the applicant replied that she is very involved with her other children (the four step-children) and could not leave them. When asked by the Tribunal why this was the case given his earlier oral evidence that none of these four children lived with Mrs J, the applicant responded that she is still their mother and is active in their lives. He could not advise the Tribunal why these children did not live with her. The applicant advised that his grandmother, who lives in [City 1], and his father, who lives in [Country 1], would face hardship if he returns to New Zealand. He added that he has an extended family of over 100 persons who live in the [City 1] area. The applicant indicated all of the aforementioned persons would be upset if he must return to New Zealand. He also explained that he has members of his mother’s family residing in New Zealand, although he doesn’t know them that well.          

17. In response to questions from the Tribunal, the applicant advised he had always been truthful and cooperative with the Department of Immigration (now entitled the Department of Home Affairs), and that nobody else is attached to his visa who would receive a consequential visa cancellation if his own visa were cancelled. The Tribunal raised with the applicant that if his visa was cancelled he would be an unlawful non-citizen, remain in immigration detention, be able to make only limited further visa applications in Australia, be liable to removal from Australia and likely face difficulties in obtaining a new Australian visa in the future. He was invited to comment upon the aforementioned matters but declined to do so.

18. The Tribunal informed the applicant that because he has children, it is considering very carefully Australia’s international obligations arising from the Convention on the Rights of the Child (CROC) and the International Covenant on Civil and Political Rights (ICCPR) that pertain to his circumstances. When asked if there were any other international obligations relevant to his case, the applicant replied there were not. The representative indicated that there were no further relevant obligations other than outlined in written submissions (which refer to the CROC and the ICCPR). When asked by the Tribunal if he had formed strong family, business or other ties in Australia, the applicant replied that he was very close to his father’s side of the family (the in excess of 100 persons in the [City 1] region). He indicated they knew of his criminal history. He also described having a [service] business from 2013 to 2017, with [number] persons employed by him. This business concluded because he went to prison. When asked by the Tribunal if he had future plans with regard to employment, the applicant indicated he was examining an internet business with a friend. He confirmed this was at the stage of being an idea and he needed further business and legal advice concerning it. When asked by the Tribunal if he could undertake the business in New Zealand, the applicant responded that there was no reason he could not conduct it in that country. When asked by the Tribunal, the applicant confirmed there was no other reason he could not return to New Zealand, and that it was safe for him to return to that country.

19. The applicant informed the Tribunal that the passing of his mother in 2014 was a very difficult time for him and his siblings as she was the centre of their family. The applicant moved to [City 1] in 2012 to be near his mother who was ill with cancer then. Further, his father departing for [Country 1] shortly after his mother’s death caused hardship for the applicant. He had no support network and turned to drugs to deal with his pain. This led to an addiction and anger management problems. His relationships broke down. The police were looking for him. He explained that much of his early offending involved him being young and abusing alcohol. The applicant indicated there was a period where he learned to behave and only had domestic violence issues since. He disagreed that he was downplaying his role in domestic violence. He stated that “a lot of this stuff stems from partners trying to make their rights with their kids…along the way people have been hurt and sometimes kids are used I guess as a way to get back at each other.” The applicant stated that he realised he had made mistakes. The Tribunal raised with the applicant that his characterisation of his problems with domestic violence, in part being attributable to his partners using his kids against him, might suggest he is downplaying his actions. The applicant then stated “unfortunately it’s a he says, she says type of thing you know and a lot of these days it’s happening everywhere, kids are always getting used against each other…” He added that he is not saying he didn’t play a part in the situation, and he felt that being denied access to his kids was an escalating factor. 

1. The Tribunal asked the applicant to clarify the time line regarding his relationships and family issues he says influenced his offending. He outlined that he separated from Ms A in 2007, his mother passed away in 2014, his father returned to [Country 1] in 2014 and he separated from Mrs J in 2016. When asked by the Tribunal why he offended during the period 2001 to 2009 in [State 1], and in 2010 committed domestic violence in [State 2], as his mother and father were still in [City 1] then, the applicant responded that he was young and drinking a lot. He confirmed that his mother passed away in January 2014 and his offending since that time was influenced by his mother’s death and the departure of his father shortly thereafter. The Tribunal asked the applicant if there was anything else he wished to say about his criminal history, given the sentences imposed suggested the Courts considered it to be serious. He stated, “it’s all just verbal stuff, there is no actual physical harm”, adding that nobody was injured. The Tribunal raised with the applicant that his answer might suggest he is downplaying his own conduct, inviting his comment. He responded that the Tribunal should have reports it can refer to regarding the nature of his offending. For completeness, the Tribunal notes there is no information before it to suggest any of the information from the [Police] of [State 1] or [State 2] is incorrect with regard to any of the proven offences attributable to the applicant. The Tribunal raised with the applicant that the gravity of his offending might suggest there are grounds for cancelling his visa and grounds for exercising discretion to cancel the visa, inviting his comment. He did not wish to comment.

2. The Tribunal took oral evidence from Mrs J in person. It may be summarised as follows. She confirmed that her signed statement of 30 January 2018 is true and correct. Mrs J informed the Tribunal that she supported the applicant remaining in Australia, she is separated from him, however she “wants to reconcile ultimately.” She outlined that they started dating in 2007 and were separated [in] April 2016. Mrs J advised the relationship declined particularly in the last half of her pregnancy. At one point she was advised the unborn child would not live due to medical reasons, however he was born with an emergency procedure and had no health problems in the end. She described the applicant as “the king for her”, but added she resented him during the pregnancy because he was not in pain as she was. She outlined that the applicant was hanging out with guys in a band during the pregnancy and ultimately they grew apart. Mrs J explained that the applicant used methamphetamine with his band members, and after his mother passed away this use, along with cannabis, increased. She confirmed that she and the applicant used drugs socially during the course of their relationship, including marijuana, cocaine and methamphetamine. Mrs J indicated they did not take drugs around the children as they had time away from them given the blended family scenario.

3. Mrs J outlined that she and the applicant separated a few times during the course of their relationship. For example, at the end of 2010 the applicant moved to another residence [in City 2] whilst she and her children lived separately to him. This status lasted less than one year according to her, and they remained in regular contact. Mrs J confirmed they separated in their relationship due to violence. She advised the Tribunal of personal problems including a previous alcoholic partner and a termination of a pregnancy to the applicant. When asked by the Tribunal to provide further detail concerning the family violence with the applicant, Mrs J explained that she has a temper and is “mouthy” and that there was violence in the relationship from early on. She stated they always wanted to remain together. Mrs J told the Tribunal that the applicant hit, slapped and verbally abused her during their relationship.

4. Mrs J outlined variously how she resumed co-habitation with the applicant for a brief period in 2012 with his parents, then in 2012 lived separately again. She explained that during periods of separation they remained in contact. In October 2012, the applicant moved in with her and in November that year they married. They lived together until April 2016. Mrs J explained that she was close to the applicant’s parents, that they lost a baby due to stress just before his mother passed away and this was a traumatic experience. She outlined that shortly after the passing of his mother, the applicant’s father commenced a new relationship and returned to live in [Country 1]. This had a negative effect upon the applicant. Mrs J said that although the applicant did not follow the church lifestyle, he was still respectful of his parents.

5. Mrs J explained that she resided with the applicant in [City 1] until April 2016 when the relationship broke down. They still remained in regular contact afterwards. She explained that the relationship broke down as the applicant was using social drugs to cope, he was struggling, there were money and work pressures, and her own teenagers (the step-children) increased pressure. When asked by the Tribunal to provide further detail on why the relationship concluded, Mrs J advised that Master K was about [age] old and an argument occurred between the applicant and her eldest son. The applicant was drunk. Her eldest son, who was then [age] years of age, became aware of the applicant’s drug use and objected to it. This son was in pain because his own father was not around. Mrs J informed the Tribunal that drugs were not around the children because their accommodation was dual living in nature. In November 2016 Mrs J moved with Master K and the other four children back to [City 2]. Her connection with the applicant declined. The applicant was dating other people.

6. In December 2016 there was an altercation when the applicant came to see Master K at Mrs J’s residence and she stood up to him. A Domestic Violence Order resulted. They had no contact for three weeks then saw each other during Christmas celebrations in 2016. By April 2017, Mrs J wanted less and less to do with the applicant and had been separated from him for around one year. Mrs J told the Tribunal that the applicant had regular contact with Master K between April 2016 and April 2017. She confirmed the applicant went to prison in May 2017 and she had no contact with him until October 2017, later informing the Tribunal she had two brief telephone conversations with him before that time.

7. The Tribunal asked Mrs J to outline whether she had been the subject of offending by the applicant. She confirmed that he had threatened her and breached a Domestic Violence Order, after learning she was in a new relationship. She stated she had been scared of him in the past but is not scared or angry any more. Mrs J indicated she knew of the circumstances of the applicant’s offending. The Tribunal read to her the record of the applicant’s criminal past and the circumstances surrounding the siege (at page 47 of the Tribunal file) and asked if she feared the applicant to which she responded she did not. Mrs J advised the Tribunal that she does not fear the applicant in the future and finds a “peacefulness about him now” following his time in prison. She knows of domestic violence offences against Ms A but indicated they were still in contact.

8. When asked by the Tribunal to outline how she got back into regular contact with the applicant, Mrs J indicated in October 2017 she heard his visa was being cancelled. She advised Ms A to inform the applicant that he could reach out to her. Mrs J is friendly with Ms A and knew her son Master N was talking about writing to the applicant. Mrs J explained her contact with the applicant increased from October 2017, particularly in the lead up to his Court matters being heard [in] December 2017. She could not fault the applicant’s love of her four other children, explaining the three teenagers now live away and her [age] year old lives with her [relative] for schooling purposes.

9. Mrs J confirmed a Protection Order remained in place with respect to herself and her five children. She wants the Order lifted and began the process to do so in December 2017. She wants the applicant to be with his children. Mrs J is living in rental accommodation and receives Parenting Payment Single from Centrelink. She does not work, having previously run a [product] business. Mrs J has never been to New Zealand. She confirmed there is no reason she could not go to New Zealand for a visit, but indicated she could not live there as she still has her four eldest children (aged [age range]) living in Australia. Mrs J confirmed she had telephone contact with the applicant in prison and immigration detention and also confirmed there was no reason she could not continue this if he moved to New Zealand. Mrs J advised the Tribunal she has been through a hard time. She wants the applicant to assist raising their son, Master K. She is scared of another of her children losing their biological father. She has good and bad memories, but is excited by the applicant’s potential. Mrs J misses the applicant and wants to reconnect with him. The applicant had no further comments having heard the oral evidence of Mrs J. Following careful consideration, the Tribunal finds that the evidence of Mrs J is supportive of the applicant and no adverse inference has been drawn from that evidence.

10. The Tribunal took oral evidence from Ms A in person. It may be summarised as follows. She confirmed that her signed statement of 30 January 2018 is true and correct. Ms A informed the Tribunal that on behalf of her son, Master N, she agreed to support the applicant to remain in Australia. She stated it would have a bad effect on her son if the applicant departed Australia. Ms A is the ex-wife of the applicant, they commenced a relationship around 2000, married in 2006 and divorced in 2008. Their relationship ended because of infidelity on the part of the applicant and because he had “a very bad temper”. When Master N was born the relationship was under pressure, there were arguments and “some incidents”. Ms A stated, “a few times he tried to take the baby from her.” She confirmed the applicant had been physically violent towards her in the past. She recalled him shoving her and hitting her in the chest, although could not remember other specifics. Ms A confirmed Protection Orders were put in place towards the end of the relationship. She outlined that the offence of common assault against her [in] July 2008 occurred in the context of the applicant being intoxicated from the previous evening, her not agreeing to him seeing Master N in such circumstances, and the applicant taking the baby from her. She confirmed the [State 2] [Police] intercepted the applicant and returned Master N to her care. Ms A confirmed the applicant’s 2010 offending in [State 2] arose from breaching Domestic Violence Orders, which protected both her and Master N. Following a period of 2 years these Orders expired and Ms A did not renew them. Gradually contact recommenced between them and the applicant became more involved in Master N’s life. Shortly after coming back into contact there was an incident of domestic violence, but following this there have been no others. Ms A outlined that the applicant had seen Master N every second weekend since 2010 and regularly called him.

11. Ms A is employed in the [specified] sector. She knows of the applicant’s extensive criminal history. Ms A believes the applicant has changed. She knows of the problems between the applicant and Mrs J. Ms A confirmed Mrs J only recommenced contact with the applicant during his time in prison. Ms A stated that she was not concerned for herself, her son or for others that the applicant would cause harm given he has changed since being in prison, being in immigration detention and being threatened with visa cancellation. She stated she was good friends with the applicant. Ms A has no concerns for Mrs J or Master K since the applicant has been in custody. The Tribunal read to Ms A the record of the applicant’s criminal past and the circumstances surrounding the siege (at page 47 of the Tribunal file) and asked if she feared for herself, or for others, regarding the applicant, to which she responded she did not. Ms A said she was involved with the police negotiators during the siege and knew of his criminal past.

12. Ms A advised the Tribunal that she was born in New Zealand and came to live in Australia around the age of [age range]. She has returned for a few visits. Her parents and siblings live in Australia, whilst her grandparents, aunts and uncles reside in New Zealand. Ms A informed the Tribunal that financial constraints would prevent her regularly visiting the applicant should he return to New Zealand. She outlined that she and Master N were regularly in contact with the applicant, visiting him in prison and in immigration detention. Master N had written to the applicant. Ms A confirmed she and her son could still maintain contact with the applicant via phone and internet if he returned to New Zealand, however she explained it would have a detrimental effect on her son if the applicant was not physically present in his life. Ms A indicated that her son, Master N, had already suffered with the applicant being in custody. Her son is depressed and cries often. The Tribunal notes there is no medical evidence before it concerning Master N. She believes if the applicant returns to New Zealand there will be insufficient contact opportunities for her son. Ms A wants shared custody of Master N with the applicant. She indicated Master N has a close relationship with the applicant. Ms A wants the applicant to remain in Australia. The applicant had no further comments having heard the oral evidence of Ms A. Following careful consideration, the Tribunal finds that the evidence of Ms A is supportive of the applicant and no adverse inference has been drawn from that evidence.

13. The Tribunal took oral evidence from Mrs C, the sister of the applicant, in person. It may be summarised as follows. She is the oldest sister of the applicant. Mrs C was not aware of the full extent of the applicant’s offending until his Court case in December 2017. She advocated for her brother to remain in Australia because he has a close knit family. She referred to letters from her family to the Tribunal. Mrs C indicated the applicant was “always a responsible person until the events of the last few years.” She believes that the passing of their mother, and their father moving, influenced the applicant negatively. Mrs C confirmed that the contents of letters from the family are true and correct. The Tribunal read to Mrs C the record of the applicant’s criminal past and the circumstances surrounding the siege (at page 47 of the Tribunal file) and asked if she feared for herself, or for others, regarding the applicant. Mrs C responded that she did not because the applicant was affected by drugs then and he is now calm and collected. When asked by the Tribunal if there was any reason why her brother could not return to live in New Zealand, Mrs C responded there would be detriment to his two young sons. She added she and her siblings have never felt in danger from him and that it would be another blow to lose him.

14. Mrs C indicated she last went to New Zealand in 2011 and confirmed there was no reason she could not visit the applicant in that country. Mrs C advised that the catalyst for the applicant’s offending was the passing of their mother and departure of their father. When asked by the Tribunal to consider why the applicant offended prior to 2014 (before the events with his mother and father), Mrs C responded that “if the family were aware they would have made him answer to his actions.” She added he is an independent person with Christian values. Mrs C confirmed she was not aware of the extent of the applicant’s offending prior to the December Court case. She prays for him to receive another chance. Mrs C believes the applicant’s time in prison has made him rethink his life. He is the first family member to be incarcerated and it has affected all of the extended family in Australia. Mrs C advised the family unit would support the applicant.

15. When asked by the Tribunal if she was aware of any rehabilitation measures with regard to the applicant, Mrs C advised he has received counselling in prison and family counselling by telephone. She opined this would continue. Mrs C stated that people in their Church would help the applicant if he were released into the Australian community. A senior pastor, youth service staff, a Police liaison friend and the Pacific Island community would help the applicant in Australia according to Mrs C. When asked by the Tribunal if there were any reasons the applicant could not access support if he returned to New Zealand, Mrs C said “no”, adding that more support was available in Australia. She explained the applicant had lived in Australia for almost 20 years and his connections in Australia were stronger than those in New Zealand. Mrs C agreed the applicant had relatives in New Zealand (discussion was had regarding the terminology used with regard to relatives in the Pacific Island community, with the Tribunal accepting terms such as ‘auntie’ and ‘uncle’ might be used in a different fashion to other communities). Mrs C also confirmed the applicant had visited New Zealand for the 21^st birthday party of a cousin.  Ultimately, Mrs C accepted the applicant had relatives in New Zealand, however she stressed the applicant’s closer relatives lived in Australia. The applicant had no further comments having heard the oral evidence of his sister, Mrs C. Following careful consideration, the Tribunal finds that the evidence of Mrs C is supportive of the applicant and no adverse inference has been drawn from that evidence.

16. The Tribunal took oral evidence from Mr P in person. It may be summarised as follows. He is a pastor from the Church who wishes to support the applicant. He wrote a statement on behalf of the applicant. Mr P confirmed he is the brother-in-law of the applicant. Mr P advised he was aware of the criminal history of the applicant and went to his Court case. He stated when the applicant’s mother passed away, “things happened.” Mr P indicated the applicant treated his kids well. He was aware there were other criminal matters before 2017, but he “is not too sure.” The first time he knew of the 2017 offending was at the Court case. The Tribunal read to Mr P the record of the applicant’s criminal past and the circumstances surrounding the siege (at page 47 of the Tribunal file) and asked if he feared for himself, or for others, regarding the applicant. Mr P responded that he “is shocked” to learn of the drug matters. Mr P displayed limited knowledge of the applicant’s offending between 2001 and 2014, although he indicated he did know of problems in 2008 concerning the applicant wanting to see his son in [State 2]. When asked by the Tribunal if, having been appraised of the applicant’s full criminal history, he regarded the applicant as a threat to anyone, Mr P replied “no”.

17. When asked by the Tribunal if there were reasons why the applicant should remain in Australia, Mr P advised that he is a pastor and can help him due to his own experience with young Pacific Islanders. Mr P explained that much trouble arises from broken families with no father. Mr P indicated the applicant’s two sons need him. He referred to the applicant’s mother and father being gone and the family needing the applicant around. Mr P stated the situation concerning the mother and father hurt the family and the applicant is good for the family. Mr P advised if the applicant is released into the Australian community he will receive assistance from him (counselling, spiritual/mental, and financial support). When asked by the Tribunal if the applicant could access support services in New Zealand, Mr P responded that there is nobody there to help him and he has a close knit family in Australia to help him. Mr P confirmed he could visit the applicant if he returned to New Zealand, but it would be financially expensive to do so. The applicant had no further comments having heard the oral evidence of his brother-in-law, Mr P. The applicant also confirmed that no further witnesses would give evidence to the Tribunal. Following careful consideration, the Tribunal finds that the evidence of Mr P is supportive of the applicant and no adverse inference has been drawn from that evidence.

1. The Tribunal confirmed with the applicant that he had been drug and alcohol free since being in custody from May 2017. The Tribunal discussed with the applicant whether alcohol and drugs had played a role in his offending. In summary, the applicant considered alcohol to have played a greater role in his earlier offending, with drugs playing a greater role in the later offending. The Tribunal raised with the applicant that he had been free of alcohol and drugs since May 2017 due to being in custody and asked if he were confident he would stay off these substances upon his release. The applicant indicated he was confident because he had completed a number of courses in prison. He added that he had been in contact with his lawyers who advised him of services such as YFS (an assistance group) and counselling that he planned to take up upon his release. When asked by the Tribunal how often he had taken drugs prior to being in custody, the applicant responded that his drug use got worse over the years. He smoked marijuana periodically since 18 years of age and eventually became dependent upon drugs. He indicated he had given up drugs for short periods in adulthood. The Tribunal raised with the applicant that it might cause concern for it that there has been no long period that he has abstained from drugs in recent years, other than that which has been imposed upon him by being held in custody. The applicant replied that he could understand this concern, but believes he can be drug free. He stated that he would not abstain from alcohol upon release from immigration detention, but wants to remain drug free. The applicant advised that alcohol has not been a problem for him recently. He stated, “…that’s going to be the first thing I do if I get my visa is have a beer.”

2. The Tribunal provided the applicant with the opportunity to raise any further evidence. He indicated that there was a downward spiral when his mother passed away and noted the Tribunal had taken the witnesses to his history of convictions prior to that. He informed the Tribunal that this period of offending was more minor. The Tribunal raised with the applicant that he had submitted in his evidence that the passing of his mother, and departure of his father, were the catalyst for his downward spiral and provided him with the opportunity to comment upon why he offended prior to that time (prior to 2014), including committing offences related to domestic violence in [State 2]. The applicant replied that he never went to prison then, but knows he has a history of offending.

3. The Tribunal drew to the applicant’s attention that it was concerned with the gravity of his recent offending, but had not made it’s mind up on his case. The applicant indicated it was an important time in his life, he had upset lots of people and he has taken the positives from his experiences. The applicant indicated he wants to remain in Australia and agreed he had a fair chance to present his case at the review hearing. Discussion was had between the Tribunal and the applicant’s representative concerning time for further post-review hearing submissions, noting the applicant was in immigration detention. The Tribunal indicated it was prepared to wait until the Court considered Mrs J’s attempt to vacate the Protection Order regarding her and her children. An adjournment was taken so the applicant could obtain legal advice. Ultimately, the applicant indicated he wanted the Tribunal to make a decision on his case as soon as possible. It was agreed that final submissions and evidence would be submitted to the Tribunal by Friday 2 February 2018. As previously noted, submissions were received on that day which included a copy of a Protection Order Varied Order made [in] January 2018 by the [Town 1] Magistrate’s Court. It orders the applicant to be of good behaviour and not commit domestic violence, amongst other restrictions, against Mrs J, Master K and the four step children. That Order remains in force at the time of this decision.

   The ground for cancellation exists

4. The Tribunal has very carefully considered whether the ground for visa cancellation in s.116(1)(e)(i) of the Act exists. The applicant has an extensive criminal history which includes convictions between 2001 and 2017 for offences including possessing dangerous drugs, assaulting police, using a carriage service to menace harass or cause offence, contravention of Domestic Violence Orders, and unlawful possession of weapons (as reflected in the outline of his offending at paragraph 8 above). The gravity of his offending has escalated over time. In 2017 he was convicted of serious assault of Police Officer whilst pretending or is armed with a weapon. That conviction arose out of a siege situation as previously described. He is subject to a current Protection Order with respect to Mrs J and her five children. The Tribunal accepts that during the years 2011 to 2016 the applicant received no convictions, and broadly stated there are two intervals of offending, 2001 to 2010 and 2017. When viewed globally, the applicant’s criminal history is a most serious matter.

5. The oral and written evidence of the applicant, and witnesses on his behalf (including those persons who only provided written statements to the Tribunal), with respect to whether the ground for visa cancellation exists may be summarised as follows. It was submitted the applicant’s earlier period of offending stemmed from youth and alcohol abuse, whilst his later offending arose from the 2014 passing of his mother and the departure of his father for [Country 1] shortly thereafter. It was further submitted that the applicant is not a threat to anybody and the four witnesses in person for the applicant expressly made that assertion. In combination, the case advanced by the applicant and his witnesses was that he had reformed in prison and immigration detention due to the completion of self-assistance courses (which he will continue to pursue in the community), his abstinence from alcohol and drugs has assisted him, he has family support in the Australian community, and the factors leading to his offending during both intervals no longer presented risk factors for him. Written submissions on the applicant’s behalf also pressed these contentions and maintained that the ground for cancellation does not exist. The Tribunal affords some weight to the evidence advanced on behalf of the applicant that he poses no risk to the health, safety or good order of the Australian community or a segment of it.

6. However, at times during the provision of the applicant’s oral evidence he sought to downplay his criminal conduct. For example as previously outlined, with regard to his conviction of assault against Mrs J in 2017, he inferred that it was only an assault by definition because just touching someone without consent now is considered to be an offence. For his conviction of unlawful possession of weapons he indicated “it was just a little BB gun.” Regarding one incident resulting in convictions for assaulting and obstructing police, he attributed this to just having “hugged” a Police Officer, “but this was taken as an assault”. When given the opportunity to comment upon his criminal history overall and the seriousness of the sentences imposed by the Courts, he said “it’s all just verbal stuff, there is no actual physical harm”, adding that nobody was injured. Such evidence causes concern for the Tribunal that the applicant has limited insight into the consequences of his offending. Some weight is afforded to this evidence, which suggests the ground for visa cancellation exists.

7. Further, the applicant provided a copy of a Protection Order Varied Order dated [in] January 2018 to the Tribunal. It is made in favour of Mrs J and her five children (including Master K) and protects them from domestic violence by the applicant, amongst other restrictions being imposed. Whilst the Tribunal accepts the evidence put forward on behalf of the applicant that Mrs J seeks to have that Order vacated, as recently as [January] 2018 the Magistrates Court at [Town 1] maintained the aforementioned protective aspects of the Order. The existence of this current Order outweighs the evidence of the applicant, and his witnesses, that he poses no risk whatsoever to Mrs J and her five children. Its existence suggests the ground for visa cancellation exists.

8. Additionally, the proven criminal history of the applicant is evidence which is suggestive of the ground for visa cancellation existing. From 2001 until 2010 he engaged in a regular pattern of offending with him receiving convictions for matters such as attempted robbery involving entering a dwelling (for which he received a sentence of imprisonment for 18 months, which was wholly suspended for 2 years), assaulting and obstructing police, common assault (in a domestic violence context), breach of Probation Orders and contravention of Aggravated Violence Orders. In 2017, the applicant received multiple convictions in circumstances of threatening harm to others whilst under the influence of prohibited drugs, specifically methamphetamine. He threatened to harm Mrs J several times (including threatening to kill her), breached Domestic Violence Orders on multiple occasions, possessed dangerous drugs, unlawfully possessed weapons and committed assault in a domestic violence context. He engaged in a siege situation with the [State 1] [Police] and threatened to shoot a Police Officer (the full outline of the applicant’s offending is contained at paragraphs 8 and 21 above). The applicant’s proven criminal history displays a blatant disregard for the safety of others, contempt for law enforcement officials and a failure by him to behave in a fashion consistent with that expected in the Australian community.

9. On balance, following careful consideration, the Tribunal affords more weight to the evidence outlined above which suggests the ground for visa cancellation exists, than it gives to evidence to the contrary. Accordingly, the Tribunal finds that the applicant’s presence in Australia might be a risk to the safety of the Australian community, or a segment of the Australian community (being domestic partners of the applicant and their children, for example Mrs J and her five children). The Tribunal is therefore satisfied that the ground for cancellation in s.116(1)(e)(i) 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 of discretion

10. 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’.

11. The Tribunal has also very carefully considered the attribution of weight to the evidence before it in assessing whether the applicant’s visa should be cancelled. In doing so, the Tribunal is mindful of the observations of Collier J in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [39]:

    There is ample authority at high level in this country that it is for a decision-maker to attribute such weight to relevant information as it sees fit: see for example Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24]; Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [197]; the plurality in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33].

12. The applicant’s background has been detailed above. He has resided in Australia since 1999 from the age of [age] years and arrived with his parents and siblings. He has his grandmother, siblings and over 100 family members from his father’s side that reside in Australia. His father and a selection of relatives live in [Country 1]. The Tribunal accepts the oral and documentary evidence (including statements from family members) that some emotional and financial hardship will be faced by these family members, and the applicant, should the visa be cancelled. The Tribunal affords some weight to the respective evidence concerning this matter and finds that the aforementioned family considerations weigh against cancellation of the visa. For completeness, the Tribunal notes that no professional medical or psychological evidence was before it to suggest that either the applicant, or any other person, will suffer psychological hardship if the visa is cancelled, and it does not accept inferences to the contrary from witnesses who are unqualified in these fields.

13. The applicant has two Australian citizen sons, Master N who is [age] and Master K who is approximately [age]. The Tribunal accepts that the opinions of Mrs J, Ms A and the other family members who have provided evidence, in oral and documentary form, is that the best interests of these children favour the applicant’s visa not being cancelled. The Tribunal accepts the evidence of the applicant indicating he has played a role in the lives of his two sons and that he and they will face hardship if his visa is cancelled. Some weight is afforded to the aforementioned evidence by the Tribunal. Further, the Tribunal has considered the documentary evidence submitted by Master N in support of the applicant and some weight is afforded to it. Whilst the Tribunal is concerned that the applicant’s criminal history is lengthy, revealing a propensity towards the commission of domestic violence and drug use, and there is currently a Protection Order against him with respect to Master K as previously described, the Tribunal finds that if the visa is cancelled his biological sons will face emotional and financial hardship, as will he, and this weighs against cancellation of the visa. For completeness, the Tribunal notes that no professional medical or psychological evidence was before it to suggest that Master N, Master K, or the applicant, will suffer psychological hardship if the visa is cancelled, and it does not accept inferences to the contrary from witnesses who are unqualified in these fields.

14. The Tribunal has carefully considered the application to this matter of the United Nations Convention on the Rights of the Child (CROC) and, as is relevant to the family unit, the International Covenant on Civil and Political Rights (ICCPR). The Tribunal acknowledges that ‘the best interests of the child’ must be treated as a primary consideration by administrative decision makers. Accordingly, the Tribunal has done so in this matter and elevates the weight afforded to the evidence, detailed above, which is suggestive of hardship being faced by the applicant and his sons, and which weighs against cancellation of the visa. The Tribunal notes that this primary consideration may be balanced against other considerations, a matter to which it shall later return.

15. The Tribunal accepts the evidence of the applicant that he has not played any meaningful role in the lives of his four step-children (noting one is now an adult) in recent times and affords it higher weight than evidence from other witnesses suggestive of these children facing hardship if the visa is cancelled. The Tribunal finds no hardship will be faced by the applicant himself if he is separated from these step-children. Following careful consideration, including of the application of the CROC and ICCPR, the Tribunal finds that no hardship will be faced by the four step-children if the visa is cancelled and that this consideration weighs neither in favour of, nor against, cancellation of the visa. The Tribunal accepts the evidence of the applicant and other witnesses that some emotional hardship will be faced by him and his minor nephews and nieces if the visa is cancelled. However, the weight afforded to that evidence is diminished given the limited contact the applicant has had with them during his time in prison and immigration detention. After due consideration of the application of the CROC and ICCPR to the nephews and nieces of the applicant, the Tribunal finds that some emotional hardship will be faced by the applicant and them if the visa is cancelled and the evidence in support of that contention is afforded some weight. Accordingly, the hardship regarding these minors weighs against cancellation of the visa.

16. The Tribunal accepts the evidence of Mrs J and the applicant that they are discussing plans to resume a relationship as previously outlined. The Tribunal also accepts that Mrs J will suffer financial and emotional hardship if the visa is cancelled. Further, the Tribunal accepts that the applicant will face financial and emotional hardship if his visa is cancelled and he cannot resume his relationship with Mrs J in Australia. Some weight is afforded to the evidence with respect to those matters, however this weight is reduced on account of the contact between them being only relatively recently re-established towards the end of the applicant’s time in custody, a matter he confirmed in his oral evidence. The Tribunal notes that the applicant and Mrs J gave evidence that she seeks to have a current Protection Order vacated. However, the existence of a Protection Order against the applicant in respect of Mrs J and her five children, which as recently as [January] 2018 still imposes restrictions and was not lifted by the Court, further reduces the weight afforded by the Tribunal in relation to the hardship faced by the applicant and Mrs J if the visa is cancelled. Nevertheless, on balance, the Tribunal finds that the hardship to both the applicant and Mrs J if they cannot resume their relationship in Australia weighs against cancellation of the visa. For completeness, the Tribunal notes that no professional medical or psychological evidence was before it to suggest that either the applicant, or Mrs J, will suffer psychological hardship if the visa is cancelled, and it does not accept inferences to the contrary from witnesses who are unqualified in these fields.

17. The Tribunal accepts the evidence of Ms A that she will face emotional and financial hardship if the visa is cancelled and the applicant cannot assist her with co-parenting Master N in Australia. The Tribunal also accepts the applicant will face financial and emotional hardship if he cannot continue his platonic relationship with Ms A in Australia. Some weight is afforded to the evidence with respect to those matters and the Tribunal finds they weigh against cancellation of the visa. For completeness, the Tribunal notes that no professional medical or psychological evidence was before it to suggest that either the applicant, or Ms A, will suffer psychological hardship if the visa is cancelled, and it does not accept inferences to the contrary from witnesses who are unqualified in these fields.

18. The Tribunal accepts there is no evidence before it of adverse past or present behaviour by the applicant towards the Department of Immigration (now entitled the Department of Home Affairs), nor of non-compliance with visa conditions, and that nobody else is attached to his visa who would receive a consequential visa cancellation if his own visa were cancelled. There are no extenuating circumstances beyond the applicant’s control that led to the grounds for visa cancellation existing. There is no evidence before the Tribunal indicating that Australia’s non-refoulement obligations would be breached as a result of the visa cancellation. The aforementioned matters weigh neither in favour of, nor against, cancellation of the visa.

19. The Tribunal accepts that if the applicant’s visa is cancelled he would be an unlawful non-citizen, remain in immigration detention, be able to make only limited further visa applications in Australia, be liable to removal from Australia and likely face difficulties in obtaining a new Australian visa in the future. The Tribunal finds that such matters will result in emotional and financial hardship for the applicant. Accordingly, the Tribunal places some weight upon the evidence pertaining to these matters and finds they weigh against cancellation of the visa.

1. As outlined previously, the applicant has resided in Australia since 1999 when he arrived aged [age] years. His purpose of stay in Australia is to maintain such residence. The Tribunal places some weight upon the evidence regarding these issues and finds they weigh against cancellation of the visa. The Tribunal has already described its attribution of weight in relation to family and relationship matters, which intersect with the consideration of the applicant’s submitted need to remain in Australia. The Tribunal accepts that he will face emotional and financial hardship if his visa is cancelled on account of the disruption to his familial, relationship and social networks. Some weight is afforded to the evidence in relation to the aforementioned matters and the Tribunal finds they weigh against cancellation of the visa. However, such weight is reduced marginally on account of the applicant’s evidence that he has family members on his mother’s side, such as aunties and cousins, residing in New Zealand whom he has visited as recently as 2016.  

2. The Tribunal accepts the applicant has previously been employed in Australia and at one time employed others. Some weight is afforded to the evidence in relation to the aforementioned matters and the Tribunal finds they weigh against cancellation of the visa. However, such weight is reduced on account of the applicant’s evidence that he is planning to commence an internet based business in the future, which is capable of being conducted in New Zealand if his visa is cancelled.   

3. The Tribunal accepts that the applicant has undertaken some courses with regard to rehabilitation in prison, and that he proposes to pursue additional rehabilitation in [City 1] with family support, should he be allowed to do so. Some weight is afforded to the evidence in relation to the aforementioned matters and the Tribunal finds they weigh against cancellation of the visa. However, such weight is reduced on account of the applicant being able to avail himself of similar services in New Zealand if his visa is cancelled. For completeness, as previously indicated, the Tribunal notes that no professional medical or psychological evidence was before it to suggest that the applicant will suffer psychological hardship if the visa is cancelled and it does not accept inferences to the contrary from witnesses who are unqualified in these fields.

4. The Tribunal accepts that the applicant has formed strong family and social ties within Australia, and he previously had strong business ties in this country. These matters have been previously outlined and weigh against cancellation of the applicant’s visa. For completeness, the Tribunal notes that the Subclass 444 visa is a temporary visa according to the prevailing legislation. Written submissions on behalf of the applicant submit that the Subclass 444 visa should attract ‘a higher threshold for cancellation’ because that is what cancellation of permanent visas attracts due to the intention of Parliament. The Tribunal does not accept this submission as the Subclass 444 visa is clearly a temporary visa. No analogy between it and a permanent visa may be drawn, despite the urging of the applicant’s representatives. For completeness, the Tribunal notes that it has considered the applicant’s case with the utmost seriousness given the factors outlined in this decision record.

5. The Tribunal must balance the factors both against, and in favour of, the cancellation of the applicant’s visa. Multiple factors have been found by the Tribunal to weigh against the cancellation of this visa, as outlined above. However, the matter of the applicant’s lengthy history of criminal offending, combined with his attempt at times during oral evidence to diminish his culpability regarding aspects of such offending, are matters of grave concern for the Tribunal. As noted above, the applicant has multiple convictions from the period 2001 to 2017 in both [State 1] and [State 2].

6. The Tribunal accepts that during the years 2011 to 2016 the applicant received no convictions, and broadly stated there are two intervals of offending. Evidence on behalf of the applicant placed much emphasis upon the 2014 passing of his mother, and departure of his father for [Country 1], as mitigating circumstances regarding the applicant’s criminal history. Indeed the applicant in his own oral evidence emphasised this point. However, these matters from 2014, which the Tribunal accepts were traumatic for the applicant and his family, were not factors involved with his earlier offending between 2001 and 2010. The applicant sought to reduce the gravity of this period of offending by noting in oral evidence that he never went to prison. Whilst the Tribunal accepts this to be correct, it notes that on 30 November 2001 he was sentenced to imprisonment for 18 months, which was wholly suspended for 2 years, in relation to attempted robbery involving entering a dwelling (as reflected in the outline of his offending at paragraph 8 above). The Tribunal considers this to be a serious matter. Additionally, the criminal history of the applicant reflects a regular pattern of offending from that time until 2010, with him receiving convictions for matters such as assaulting and obstructing police, common assault (in a domestic violence context), breach of Probation Orders and contravention of Aggravated Violence Orders (the full outline of such offending is contained at paragraph 8 above). On balance, the Tribunal regards this pattern of repeat offending most seriously. It weighs strongly in favour of cancelling his visa.

7. The offending of the applicant in 2017 is very serious in the view of the Tribunal. As has been outlined above he received multiple convictions in circumstances of threatening harm to others whilst under the influence of prohibited drugs, specifically methamphetamine. He threatened to harm Mrs J several times (including threatening to kill her), breached Domestic Violence Orders on multiple occasions, possessed dangerous drugs, unlawfully possessed weapons and committed assault in a domestic violence context. He engaged in a siege situation with the [State 1] [Police] and threatened to shoot a Police Officer (the full outline of such offending is contained at paragraphs 8 and 21 above). Despite the applicant giving oral evidence that he did not actually physically harm anybody during his 2017 offending, the Tribunal does not accept this excuses his conduct. He displayed a blatant disregard for the safety of others, contempt for law enforcement officials and failed to behave in a fashion consistent with that expected in the Australian community. The passing of his mother, and departure of his father to [Country 1], do not excuse his 2017 criminal conduct. On balance, the Tribunal regards the character of the applicant’s offending in 2017 to be most serious. It weighs strongly in favour of cancelling his visa.

8. At times during the provision of the applicant’s oral evidence he sought to downplay his criminal conduct. For example as previously outlined, with regard to his conviction of assault against Mrs J in 2017, he inferred that it was only an assault by definition because just touching someone without consent now is considered to be an offence. For his conviction of unlawful possession of weapons he indicated “it was just a little BB gun.” Regarding one incident resulting in convictions for assaulting and obstructing police, he attributed this to just having “hugged” a Police Officer, “but this was taken as an assault”. When given the opportunity to comment upon his criminal history overall and the seriousness of the sentences imposed by the Courts, he said “it’s all just verbal stuff, there is no actual physical harm”, adding that nobody was injured. Such evidence causes concern for the Tribunal that the applicant has limited insight into the consequences of his offending. Some weight is afforded to this evidence, which weighs in favour of cancelling his visa.

9. The Tribunal has carefully reflected upon the factors both against, and in favour of, cancelling the applicant’s Subclass 444 visa. The Tribunal is cognisant that ‘the best interests of child’ is a primary consideration, which in the applicant’s case weighs against cancelling his visa. In addition, the Tribunal notes that other factors weigh against cancellation of the visa as previously outlined. These factors must be carefully balanced with those in favour of the visa cancellation. The extent and gravity of the applicant’s criminal history, and his attempts in oral evidence to downplay his culpability, weigh in favour of the visa cancellation. On balance, following much consideration, the Tribunal finds that the factors in favour of cancelling the applicant’s visa outweigh those factors to the contrary.

10. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

11. The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

    K. Chapman
    Member