1721766 (Migration)

[2017] AATA 3046

1721766 (Migration) [2017] AATA 3046 (15 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1721766

MEMBER:Tigiilagi Eteuati

DATE:15 December 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 15 December 2017 at 11:48am

CATCHWORDS
Migration – Cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – Committed violent crimes – Risk to the community

LEGISLATION
Migration Act 1958, ss 116, 424AA
Migration Regulations 1994, Schedule 2

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] September 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)(ii) on the basis that the delegate was satisfied that the presence of the applicant in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals. 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. The applicant appeared before the Tribunal on 7 December 2017 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A] the applicant’s partner.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he or she 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)(ii). 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.

7. The Tribunal has carefully considered all of the relevant information on the Department and Tribunal files including the submissions and documents provided to the Tribunal by the applicant including the documents provided to the Tribunal after the hearing.

   Does the ground for cancellation exist?

8. 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. As mentioned above, in the present case, the delegate was satisfied that the presence of the applicant in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals.

9. In the current case the delegate based his decision to cancel on a Verdict and Judgment Record which indicated that [in] 2017 the applicant had pleaded guilty to and was convicted of [various, serious domestic violence related charges].

10. The Tribunal sought information as to the applicant’s criminal history from [State 1] Police. The documentation returned from [State 1] Police included a [State 1] Court Outcomes document for the applicant and Court Briefs containing the facts alleged by the police against the applicant for his more recent crimes. This information was provided to the applicant and the applicant’s solicitors provided copies of the relevant material back to the Tribunal.

11. The [State 1] Court Outcomes document records the following finalised offences for the applicant:

    ·[In] 2017 the applicant was convicted of:

    [Various, serious domestic violence related charges, for which he was sentenced to a period of imprisonment].

    ·[In] 2015 the applicant was convicted of [details of offence removed] and sentenced to [a period of] imprisonment.

    ·[Earlier in] 2015 the applicant was convicted of [details of offence removed] and sentenced to [a period of] imprisonment.

    ·[Earlier in] 2015 the applicant was convicted of [details of offence removed] and sentenced to [a period of] imprisonment.

    ·[In] 2014 the applicant was found guilty of [an offence] but no conviction was recorded and the applicant was “not further punished.”

    ·[Earlier in] 2014 the applicant was convicted of [various offences] and fined [an amount].

    ·[In] 2003 the applicant was convicted of [an offence] and fined [an amount].

    ·[In] 2001 the applicant was found guilty of [details of offence removed] but no conviction was recorded and the applicant was fined [an amount].

12. In relation to the [2017] convictions the [State 1] Police Service Court Brief alleges, inter alia, the following relevant facts:

    [Details of alleged facts removed].

13. The applicant gave evidence both in his written statement and at the hearing that in relation to this conviction, his partner, [Ms A] had told him that he should be checked for [a sexually transmitted infection] as a man she had been staying with had [a sexually transmitted infection]. He indicated that he was shocked and angry when hearing this from [Ms A]. He said that when he was told this by [Ms A] he was in [a ute]. He said that the only way from him to exit the tray was through the back of the tray and that his way to exit was being blocked by [Ms A]. He said that in order to exit the tray of the ute he pushed [Ms A] in the neck area to remove her from his path so that he could exit the tray of the ute and this action was the basis for his convictions.

14. [Ms A] who gave evidence at the hearing gave a different account. She said that while the couple were arguing that the argument had nothing to do with [a sexually transmitted infection]. She indicated that they were arguing about their living situation and about women who would hang around the ute. She indicated that they were standing next to the ute when the applicant grabbed her neck and strangled her for a significant period of time.

15. The Tribunal prefers the evidence of [Ms A] and that contained in the court briefs that the applicant strangled [Ms A]. In particular, [Ms A]’s evidence was convincing as she appeared before the Tribunal to ask that the applicant be able to remain in Australia.

16. In relation to the [2017] conviction the [State 1] Police Service Court Brief alleges that the victim claimed that the victim and the applicant had been drinking and that the applicant hit the victim across the face with his closed right fist. The applicant had been subject to a domestic violence protection order (DVO) which contained a condition that the applicant be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved. The applicant denied that he hit [Ms A] and said that they had argued and [Ms A] had become fearful of the applicant. [Ms A] agreed with the allegation in the court brief that the applicant had struck her in the face.

17. The Tribunal prefers the evidence of [Ms A] and that contained in the court briefs that the applicant struck [Ms A] in the face. In particular, [Ms A]’s evidence was convincing as she appeared before the Tribunal to ask that the applicant be able to remain in Australia.

18. In relation to the [2015] conviction the [State 1] Police Service Court Brief alleges that the victim claimed that the applicant was in an intoxicated state and was provoking her to become involved in an argument and gesturing for the victim to start a physical altercation and repeatedly saying “come on have a go”. The aggrieved claimed that the applicant crushed a tin with his hands and motioned to throw the tin at her before putting the tin in a rubbish bin. The report indicates that the applicant denied saying “come on have a go” or motioning to throw a can at the applicant. He is reported to have admitted that he said “why does the fucking fridge stink” and “fuck you bitch” and raising both his arms to present his middle fingers towards the aggrieved. The applicant had been subject to a DVO  which contained a condition that the applicant be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.

19. In relation to the [2015] conviction the [State 1] Police Service Court Brief alleges that the victim claimed that the applicant had been drinking when an argument commenced and the applicant then lunged at the victim and punched her in the face multiple times. The applicant had been subject to a DVO which contained a condition that the applicant be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved. The applicant denied that he hit [Ms A] and said that they had argued and [Ms A] had become fearful of the applicant. [Ms A] agreed with the allegation in the court brief that the applicant had struck her in the face multiple times.

20. The Tribunal prefers the evidence of [Ms A] and that contained in the court briefs that the applicant struck [Ms A] in the face multiple times. In particular, [Ms A]’s evidence was convincing as she appeared before the Tribunal to ask that the applicant be able to remain in Australia.

21. In relation to the [2014] offence the [State 1] Police Service Court Brief alleges that the applicant was detained for breath analysis after the applicant failed an initial roadside breath test. It is alleged that he refused to remain seated and proceeded to move towards the door. It was alleged that, as the police attempted to detain the applicant, “he became more aggressive and thrashed his arms in an attempt to avoid being detained.” As no conviction was recorded for this offence and he escaped further punishment, this offence is given very little weight.

22. In relation to the [2014] convictions the [State 1] Police Service Court Brief alleges that the informant claimed that the applicant had been drinking and became aggressive and she did not want him to remain at the house. The police spoke to the applicant advising him that he had to leave the house which he eventually did after being verbally abusive to police. It was alleged that the applicant continued to be verbally abusive and swear at the police once outside the house and was arrested. It was alleged that the applicant “raised his right leg and attempted to push back off the vehicle to break free from police” and that he “has then continued to struggle and resist against police until he was eventually overpowered by police and placed in handcuffs. Once placed in cuffs the deft has continued to resist and struggle and has attempted to get his hands which were cuffed behind his back out in front of him.”

23. As the applicant was fined $300 in relation to these offences, the Tribunal does not place any great weight on these offences.

24. No [State 1] Police Service Court Briefs were produced for the applicant’s convictions in 2003 or 2001. However, the while the Tribunal places no great weight on these offences  as they attracted relatively small fines, the Tribunal has had regard to the fact that the offence in 2001 was for “DVA breach domestic violence order ([date]/11/2001)” which indicates that the applicant has been found guilty of domestic violence related offences as far back as 2001.

25. [Ms A] gave evidence that the applicant had been violent towards her since 2012 when they started their relationship. She said that he would beat her almost every time the couple would become intoxicated. She said that she had been in abusive relationships since she was in her teens but that [the applicant] had been her worst abuser. She described an incident when she was [pregnant] and the applicant kicked her in the stomach causing her to lose the pregnancy. The Tribunal notes that there is no evidence that the applicant has ever been charged in relation to the incident described by [Ms A] and the Tribunal accordingly gives this evidence much less weight than it gives to the offences with which the applicant has been convicted.

26. [Ms A] said that she wanted the applicant to be able to remain in Australia. She said that she had re-established contact with the applicant since he has been held in immigration detention. She said that she loves the applicant and wishes to re-establish their relationship if he is allowed to remain in Australia. [Ms A] said that she was confident that the applicant would not continue to offend against her. She said that she was confident that, if they attended AA, which the Tribunal has taken to mean Alcoholics Anonymous, and stop drinking, he will not harm her again. [Ms A] explained that she was on medication to deal with her mental condition which has, in part, been affected by the abuse she has suffered at the hands of the applicant. She said that she wants the applicant’s support as she is unwell. [Ms A] said that, in particular, she is having a [medical procedure] in the near future and wants the applicant’s support while she is undergoing the [procedure]. In his written statement, the applicant also indicated that [Ms A]’s mother is ill and he wanted to help and care for both [Ms A] and her mother. [Ms A] said that she could not move to New Zealand to live with the applicant because she feared flying and her medical condition would prevent her from travelling.

27. [Ms A] said that she is currently living in a friend’s garage. She said that she has one child [under] the age of 18. [The child] lives with her father and [Ms A] said that she has had limited involvement with [the child] this year as they had a falling out. She said that her children get along well with the applicant and that the applicant could help her look after [the child], while she was having surgery. When the Tribunal indicated that [the child] lived with her father, [Ms A] said that she had made up with [the child] and [the child] may visit her.

28. [Ms A] said that apart from her eldest son, none of her children know about the abuse she has suffered at the hands of the applicant.

29. When the adverse information about his violent past was put to the applicant for comment, he said that he would not re-offend because his offending was caused by his drinking and he was no longer drinking. He said that he would not return to drinking because he was suffering from the effects of the [medical condition] and drinking would only exacerbate those negative effects.

30. It appears that the threshold in section 116(1)(e)(ii) is a particularly low one and that it is sufficient for the cancellation power to be enlivened that the presence of the applicant in Australia is or ‘may’ be a ‘risk’, or would or ‘might be’, a ‘risk’ to the health or safety of an individual or individuals.

31. Notwithstanding the apparent low threshold for enlivening the cancellation power, the Tribunal considers that the mere possibility that a person may or might be a risk to the health or safety of an individual or individuals absent any compelling evidence to support that assessment is insufficient to enliven the cancellation power. It could be said that any given person in the community ‘may’ or ‘might be’ a risk to the health or safety of an individual or individuals but without any compelling evidence to support even the possibility of an actual risk, the cancellation power will not be enlivened.

32. The Tribunal considers that in the current case, it is clear from the evidence from the [State 1] Police and from [Ms A] (which was put to the applicant in the manner required by section 424AA even though she gave evidence as a witness for the applicant) that the applicant’s presence in Australia is or may be, or would or might be, a risk to the health or safety of [Ms A]. Indeed, the Tribunal is satisfied that given the repeated attacks on [Ms A] and the very serious nature of some of the attacks, that the applicant presents a real and serious threat to the safety of [Ms A]. The Tribunal does not accept the applicant’s evidence that he would presented no risk to [Ms A] as he would not return to drinking because he was suffering from the effects of the [medical condition] and drinking would only exacerbate those negative effects. There is a lack of significant evidence of rehabilitation relating to the applicant’s drinking and violent behaviour. The Tribunal has considered that the applicant’s claims to have sought out psychological treatment for the problems which had led to his previous offending after his release from prison in early 2016. Despite having undergone treatment, the applicant went on to commit his most serious crimes later that year.

33. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(ii) 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

34. 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’.

35. The applicant submitted that he and [Ms A] will suffer significant hardship if the applicant’s visa remains cancelled. The applicant’s partner suffers from medical problems and she has said that she would be assisted by the applicant’s presence including during upcoming surgery.

36. The applicant alleges that he suffered a [medical condition] while he was incarcerated at a correctional centre and plans to institute legal proceedings against the operator of the correctional centre for injuries he claims to have suffered as a result of their negligent conduct. The applicant has argued that it will be more difficult for him to maintain legal proceedings against the operator of the correctional centre if he is in New Zealand. At the hearing, his representative explained that this difficulty is that he will have to appear by video link at any court hearing rather than being able to attend in person.

37. The applicant explained at the hearing that his mobility, mental state and in particular his memory has suffered as a result of his recent [medical condition]. He said that he has not lived in New Zealand for 20 years and will find it difficult to find his way around his new surroundings. It was suggested in his written submissions that, as the applicant is now [age] years old and recovering from a [medical condition], the applicant would have little prospect of obtaining employment in New Zealand. If this submission is correct, the same is probably true if the applicant remains in Australia.

38. The applicant also submitted that he did not know whether he would be entitled to any social security payment in New Zealand or how to apply for such a payment. The applicant claimed that there was uncertainty about the continuity of his medical treatment in New Zealand in the sense that he does not know whether treatment providers in New Zealand will have access to his medical records or what treatment he would receive in New Zealand.

39. While the Tribunal places some weight in the applicant’s favour on these considerations the weight to be given is tempered by the following factors. The applicant lived in New Zealand for some 40 years before he arrived in Australia and gave evidence that he had obtained both medical treatment and social security benefits in New Zealand previously. In addition, after the hearing, he was able to provide the Tribunal with over 200 pages of documents relating to his medical condition and its treatment. There is no reason why the same could not be provided to doctors in New Zealand. Further, given that the applicant has not lived in New Zealand for 20 years, the Tribunal accepts that it may be easier for the applicant to find his way around [State 1] where he has been living for some time, than wherever he would settle in New Zealand. However, the Tribunal does not consider that this would be an insurmountable difficulty. While the Tribunal accepts that the task may be more difficult after the effects of his recent [medical condition], the applicant has coped with moving to Australia from New Zealand and has coped with moving between different places in Australia.

1. The Tribunal accepts that the applicant has resided in Australia for 20 years and has worked in Australia for much of his time here. This of itself establishes a certain level of connection between the applicant and Australia. However, whatever connection the applicant has with Australia does not appear to be particularly strong. He has a DVO in place in relation to [Ms A] and does not appear to have had contact with her from 2016 until he recently re-established contact. He has no contact with his 2 daughters, his 6 grandchildren or his great grandchild and it does not appear that he has any means of contacting any of his family members in Australia.

2. The applicant admitted that he had not maintained contact with his elder daughter and her children prior to being arrested because they did not get along with [Ms A]. He said that he last saw his younger daughter in 2015 or early 2016. The applicant could not recall the name of his younger daughter’s youngest child and gave different ages for his grandchildren in his written and oral evidence. For example, in his written statement he said that [one grandchild] was 15 years old and [another] was 6 years old whereas at the hearing the applicant claimed that these children were 19 and 14 respectively. While the Tribunal accepts that the effects of his [medical condition] may affect his ability to remember the exact ages of his grandchildren, his inability to give even vaguely similar ages and the evidence about his lack of contact with the children suggest that he did not have a particularly close relationship with the children.

3. Other than the evidence of [Ms A], the applicant did not produce any evidence from any other person in Australia to support his application for the cancellation decision to be set aside. The applicant also gave evidence that, at the time he was most recently arrested in 2016, he was a homeless drunk, living in a ute and was unemployed.

4. The Tribunal has considered the best interests of the applicant’s grandchildren under the age of 18, the interests of his great grandchild and the interests of [the child], [Ms A]’s 15 year old daughter, as primary considerations in the exercise of its discretion. The Tribunal accepts that it will usually be in a child’s best interests to be able to maintain a relationship with their family members including grandparents and great-grandparents. However, in this case it is not particularly clear where the interests of the relevant children lie. Prior to his arrest, it appears that the applicant had very little, if any, contact with the children and was a homeless, unemployed drunk who repeatedly committed serious acts of violence against his partner, [Ms A]. As the applicant has lost all contact with the children and has no way of contacting any of them save [the child], if the applicant were to remain in Australia, there is every chance that he will not have contact with them again. If he were to re-establish contact but remain the violent drunk that he was before his arrest, the Tribunal finds that it would not be in the interests of any of the children to maintain contact with the applicant.

5. The Tribunal has decided to affirm the Minister’s delegate’s decision to cancel the applicant’s subclass 444 visa.

6. The Tribunal accepts that the applicant and [Ms A] will suffer hardship if the applicant’s visa remains cancelled and he has to return to New Zealand. The Tribunal accepts that it will be difficult for [the applicant] to relocate to New Zealand where he has no close family members. The Tribunal accepts that the difficulties will be exacerbated by the ongoing effects of his recent [medical condition]. The Tribunal accepts that the applicant has resided in Australia for many years and has connections to this country although those connections do not appear to be particularly strong.

7. The Tribunal accepts that the applicant may have problems obtaining employment in New Zealand and will have to readjust to living in New Zealand, including having to seek medical assistance and social security benefits. The Tribunal accepts that, because of his criminal history, the applicant is unlikely to ever be able to return to Australia. The Tribunal accepts that the applicant would be separated from [Ms A] as she has indicated that she can not travel to New Zealand to live with him or to visit him. The Tribunal accepts that the applicant will also be separated from his family members in Australia and that any future in person contact with them will depend on whether they are willing and able to visit him in New Zealand. The Tribunal accepts that it will be more difficult for the applicant to pursue legal proceedings in Australia against the operators of the corrections centre if he is in New Zealand.

8. The Tribunal accepts that the applicant’s family members may be upset that the applicant will not be living in Australia and that in person contact will be difficult. However, the Tribunal notes that it is not certain that the applicant would have any further contact with his family in Australia if he were to remain as he has lost contact with them and has been unable to re-establish contact. The applicant has also not seen any of his family members for some time. If contact with his family is re-established it could be maintained in the future through telephone calls, letters and possibly through electronic means including social media and email.

9. The Tribunal has found that the best interests of the relevant children in Australia are not clear regarding whether the applicant’s visa should be cancelled. As the applicant has lost all contact with the children and has no way of contacting any of them save [the child], if the applicant were to remain in Australia, there is every chance that he will not have contact with them again. If he were to re-establish contact but remain the violent drunk that he was before his last arrest, the Tribunal finds that it would not be in the interests of any of the children to maintain contact with the applicant. The Tribunal has considered that the best interests of the relevant children as a primary consideration.

10. The Tribunal accepts that [Ms A] loves the applicant and wants him to remain in Australia so that they can re-establish their relationship. The Tribunal accepts that [Ms A] is of poor health and that she believes that the applicant would provide support to her with her ongoing health problems. As mentioned above, the Tribunal accepts that she can not travel to New Zealand to live with the applicant or to visit him.

11. The Tribunal has placed weight in the applicant’s favour on the hardship to the applicant, [Ms A] and his family members in Australia, of a decision to affirm the delegate’s decision.

12. However, the Tribunal finds that the applicant presents an unacceptable risk to the safety of [Ms A] and potentially to others in Australia. The applicant has committed serious violent crimes in Australia which have had serious negative consequences for [Ms A]. While the Tribunal acknowledges that both the applicant and [Ms A] claim that the applicant will not re-offend, the Tribunal does not accept that this is the case.

13. The Tribunal has arrived at this conclusion after considering the repeated nature of the applicant’s violent criminal offending and the seriousness of those crimes, especially on the last occasion. The Tribunal has also considered the lack of significant evidence of rehabilitation relating to the applicant’s drinking and violent behaviour. The Tribunal has considered that the applicant’s claims to have sought out psychological treatment for the problems which had led to his previous offending after his release from prison in early 2016. Despite having undergone treatment, the applicant went on to commit his most serious crimes later that year. The Tribunal considers that the risk that the applicant continues to present to [Ms A] and potentially others in Australia, especially women who may enter into relationships with the applicant in the future, outweighs all of the other considerations which weigh against the cancellation of the applicant’s visa.

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

    DECISION

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

    Tigiilagi Eteuati
    Member