1730681 (Migration) - [2018] AATA 2699

1730681 (Migration) [2018] AATA 2699 (4 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1730681
MEMBER:John Billings
DATE:4 May 2018
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 04 May 2018 at 4:52pm
CATCHWORDS
Migration – Cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – Whether the ground for cancellation exists – Significant criminal history - Applicant may be a risk to a segment of the Australian community – Whether the visa should be cancelled – Where applicant has a history of drug use – Where the applicant has undergone substantial rehabilitation – Where cancellation would cause significant hardship to others – Best interests of the child – Decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(e), 359A, 375A
Migration Amendment (Character and General visa Cancellation) Bill 2014 (Cth)
Migration Regulations 1994 (Cth), Schedule 4, PIC 4013
CASES
Gong v MIBP [2016] 561
MIBP v Singh [2016] FCAFC 183
Newall v MIMA [1999] FCA 1624
Sami v MIAC [2013] FCAFA 128
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

This is an application for review of a decision dated [in] December 2017 made by a delegate of the Minister for Immigration and Border Protection under s.116 of the Migration Act 1958 (the Act) to cancel the Subclass 444 (Special Category) visa held by [the applicant].
After giving notice of intention to consider cancellation (NOICC) and receiving a response from [the applicant], the delegate cancelled the visa under s.116(1)(e) on the following basis. The delegate concluded that the presence of [the applicant] 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. The delegate’s conclusion was based on evidence that [the applicant] had been convicted of certain criminal offences. The delegate exercised discretion to cancel the visa.
[The applicant] applied for review on 5 December 2017. He provided a copy of the primary decision to the Tribunal.
The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.
[The applicant] appeared before the Tribunal on 2 May 2018 by video link from [Immigration Detention Centre 1] to give evidence and present arguments. The Tribunal also received oral evidence from the following witnesses: [Ms A] ([the applicant]’s partner), [Mr B], ([Ms A]’s uncle), [Ms C] ([Ms A]’s sister), [Mr D] and [Ms E] ([the applicant]’s employers), and [Ms F], [Ms G], [Mr H] and [Ms I] (friends of [the applicant] and [Ms A]). Also…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1730681 (Migration)

Details

AGLC: 1730681 (Migration) [2018] AATA 2699
Case: [2018] AATA 2699
Decision Date: 4 May 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 444 (Special Category) visa of the applicant. The dispute arose from the Department's satisfaction that the applicant's presence in Australia posed a risk to the Australian community or a segment thereof, and that the applicant had a significant criminal history. The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether the visa should be cancelled, taking into account all relevant circumstances.

The Tribunal examined the provisions of section 116(1)(e) of the Migration Act 1958 (Cth), which permits visa cancellation if the Minister or Tribunal is satisfied that the visa holder's presence in Australia is or may be a risk to the health, safety, or good order of the Australian community or a segment of it, or to the health or safety of individuals. The Tribunal noted that the threshold for this ground is not high, requiring only a possibility of risk. While acknowledging the applicant's past serious offending and the risk this history presented, the Tribunal also considered the applicant's subsequent rehabilitation. This included continued participation in drug and alcohol programs, anger management, steady employment, community involvement, and improved relationships.

The Tribunal concluded that while the applicant's entire history indicated a past risk, his more recent conduct demonstrated significant positive changes. In exercising its discretion regarding cancellation, the Tribunal weighed the applicant's compelling need to remain in Australia to maintain his relationship with his partner and stepchild, and his compliance with visa conditions. Despite the past family violence history, the Tribunal found that the applicant's commitment to his current relationships and his substantial life changes weighed heavily in favour of not cancelling the visa. Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel [the applicant]’s visa should be set aside.CONSIDERATION OF CLAIMS AND EVIDENCE The Department’s file includes a non-disclosure certificate given under s.375A of the Act. As to the Tribunal’s obligations with regard to s.375A certificates see generally MIBP v Singh [2016] FCAFC 183. The Tribunal provided a copy of the certificate to [the applicant] in April 2018 and invited submissions as to the validity of the certificate. According to the certificate the material it covered refers to “sensitive information shared between Victoria Police and the Department regarding the concerns for [[the applicant]’s partner] due to a history of domestic violence”. The Tribunal considers the certificate to be valid. No submissions have been made that the certificate is not valid. [The applicant]’s representative said in effect to the Tribunal that rather than challenge the validity of the certificate [the applicant] and [Ms A] sought to show that the police’s current concerns are unfounded. The material covered by the certificate includes references to episodes since January 2017 when [the applicant] was last convicted of any offence. The Tribunal will say more about the episodes. In particular there is reference to the investigation of an allegation that [the applicant] recklessly caused injury in or about the middle of 2017. Given certain concessions made by [the applicant], evidence given by the witnesses, and other information in the material, the Tribunal has not had to issue an invitation under s.359A of the Act for [the applicant] to comment on or respond to information covered by the certificate. When a visa may be cancelled 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). 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? 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. The expressions “health” and “safety” are used in s.116(1)(e) in their ordinary meanings: see Newall v MIMA [1999] FCA 1624 at [21]. “Risk” is not defined but use of the words “may be a risk” means that there does not have to be any direct, solid or certain foundation before the power to cancel a visa can arise: see Gong v MIBP [2016] 561 at [41]. The provision was amended by the Migration Amendment (Character and General visa Cancellation) Bill 2014. Item 13 of Schedule 2 to the Explanatory Statement for that Act states: The purpose of this amendment is firstly to clarify that this ground for cancellation applies where the risk of harm is to an individual, or a segment of the Australian community, as well as to the broader Australian public. Secondly, the amendment seeks to lower the threshold of this cancellation ground, so that it exists where there is a possibility that the person may (or might upon their arrival in Australia) be a risk to the health, safety or good order of an individual or community in Australia, as well as where there is demonstrated to be an actual risk of harm. (Emphasis added).

Decision

Reasons for decision

Considering all the circumstances as far as they can be determined on the oral evidence and the material before the Tribunal – especially [the applicant]’s very serious repeated offending and the hardship he has caused his family in the past, but also the substantial changes he has made in his life in order to turn away from drugs and criminal behaviour, including behaviour that would threaten or harm [Ms A] - the Tribunal concludes that the visa should not be cancelled. DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.John BillingsSenior Member

Ratio Decidendi

Legal Principle Established

To summarise this part of the Tribunal’s reasons, the whole history – not just the history of [the applicant]’s relationship with [Ms A] – leads the Tribunal to conclude that the presence of [the applicant] 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. On the other hand, putting to side matters that have not been pursued by police and that therefore, taking into account all the evidence, should be put to one side, the more recent history - from the time [the applicant] was released from prison in late 2015 - indicates that [the applicant] has indeed transformed his life. This more recent history includes [the applicant]’s continued participation in a drug and alcohol program; his participation last year in an anger management program; his steady employment in responsible positions; his community involvement; his better relationship with [Ms A]; and his relationship with [Mr J]. Consideration of discretion There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by [the applicant], and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. The Tribunal first considers the purpose of [the applicant]’s travel and stay in Australia and whether he has a compelling need to travel to or remain in Australia. [The applicant] came to Australia [at a young age]. Since then he has been in Australia for more or less the whole time. He is now aged [a particular age]. He has been in a relationship with [Ms A] for eight years or thereabouts. He has been stepfather to [Mr J] from the time [Mr J] was a very young child until now. (Of course there have been significant periods of time when [the applicant] was not with the family because he was in prison). [Ms A]’s mother has declared that [the applicant] is “an absolute blessing” and an “amazing” stepfather to [Mr J]. The Tribunal accepts that in spite of the past [the applicant] and [Ms A] are genuinely committed to each other. [the applicant]’s purpose of staying in Australia is to be with [Ms A] and [Mr J], and [Mr K]. The family violence history may be considered as being in conflict with the notion that [the applicant]’s purpose of remaining in Australia is to continue in the relationship, but the Tribunal’s view, ultimately, is that the purpose of him staying in Australia and the compelling need he has to stay is a factor that weighs heavily in favour of not cancelling the visa. The Tribunal next considers the extent of compliance with visa conditions. There is no material before the Tribunal to indicate that [the applicant] has not complied with any visa conditions. This factor has some weight in [the applicant]’s favour.