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

1. 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].

2. 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.

3. [The applicant] applied for review on 5 December 2017.  He provided a copy of the primary decision to the Tribunal. 

4. The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.

5. [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 present at the hearing was [Ms A]’s [minor] son, [Mr J]. 

6. [The applicant] was represented in relation to the review by his registered migration agent.  The representative attended the hearing. 

7. [The applicant] is [a particular age] year old national of New Zealand.  His most recent employment has been as crew leader for [company] owned by [Mr D and Ms E].  [The applicant] first arrived in Australia at [a particular age], in April 1997.  He accompanied his father, stepmother and stepbrother.  His father and stepmother have had further children in Australia.  [The applicant]’s mother and four siblings are in New Zealand.  [The applicant] departed Australia for a short time from the end of 1999, from the end of 2004, and in March 2005.  He last arrived in Australia on [a particular date in] March 2005.  On that day he was granted the visa that has been cancelled.

8. [The applicant] has been in a de facto relationship with [Ms A] since 2009 or 2010, when [Mr J] was in [a particular] year of school.  They have been renting accommodation in a Melbourne suburb.  [Ms A] works [in a particular occupation].  [Mr J] has been in [Ms A]’ custody but his biological father has access once a fortnight.  [Mr J]’s cousin, [Mr K], who is about the same age as [Mr J], lives with the family when not otherwise in his grandmother’s care. 

9. [The applicant] has an extensive criminal history in Australia that is detailed in the primary decision.  As summarised there, [the applicant] has been convicted of very serious offences involving violence, theft, property damage and offences towards police while in the performance of their duties.  The history includes multiple breaches of court orders, including failure to answer bail, failing to comply with orders, and breaches of family violence orders.  Court outcomes were recorded in 2007, 2008, 2010, 2013, 2015 and 2017.  [The applicant] was given bond in 2007 in relation to burglary, theft and failing to answer bail.  He was convicted in 2008 for breaching the order and fined $500.  In the same year he was convicted of recklessly causing injury, reckless conduct and other offences and given a suspended gaol sentence.  In April 2010 the sentence was restored and, now including a burglary charge, he was given an aggregate sentence of three months’ gaol.  In May 2010 he was sentenced to 12 months’ imprisonment for theft and assaulting, resisting and escaping from police.  In October 2010 [the applicant] was sentenced by the County Court of Victoria to 24 months’ imprisonment for burglary and theft.  In March 2013 [the applicant] received a suspended six months’ gaol sentence for affray.  In the same month he was sentenced to an aggregate of five days’ imprisonment in relation to three charges of contravening family violence intervention orders.  In December 2013 [the applicant]’s suspended sentence for affray was restored but there was a further suspended sentence for an aggregate of nine months for unlawful assault, resisting police, unlicensed driving, contravening a family violence intervention order, dealing with property the suspected proceeds of crime and theft.  In May 2015 the County Court restored the suspended sentence and further imposed an 18-month community corrections order in relation to charges of dealing with stolen goods and recklessly causing serious injury.  In January 2017 [the applicant] was convicted of offences of resisting an emergency worker (police officer) on duty and using obscene language in a public place.  The matter was adjourned until January 2019 and [the applicant] was ordered to pay $2,000 to the court fund.  Save where otherwise specified, the above matters were dealt with by the Magistrates’ Court of Victoria. 

10. [The applicant] has a history of drug and alcohol abuse but his evidence to the Tribunal is that he has not used drugs since 2015 or early 2016 and that he is not interested in alcohol.  A letter dated [in] November 2017 that was submitted to the Department, co-signed by [Ms K], Senior Alcohol and other Drug Clinician, and [Ms L], Program Manager at [Health Service 1], indicates that [the applicant] first engaged with the service in October 2014.  He engaged “periodically” from that time when he needed support.  He last engaged formally in March 2016.  An unsigned letter dated [in] November 2017 by [Health Service 1] lists [the applicant]’s participation in 12 of 16 (anger management) sessions from August to November 2017.  [The applicant] told the Tribunal that he was due to complete this court ordered program when he was taken into immigration detention. 

11. [The applicant] was taken into immigration detention in December 2017 after his visa was cancelled.  He was transferred to [Immigration Detention Centre 2] a few weeks later.  Since then he has been transferred to [Immigration Detention Centre 1] for medical reasons.  It was not until February 2018 that the Tribunal was informed (by the Department) that [the applicant] was not residing at the Victorian address specified in the application for review.  

12. The Department’s file includes written submissions; statutory declarations by [the applicant], [Ms A] and [Ms A]’s mother, [Ms M]; the [Health Service 1] letters; and numerous letters of support from a former employer and other persons, including some of the persons who gave oral evidence on 2 May.  Material submitted to the Tribunal includes a further statutory declaration by [Ms A]; reports made in January and February 2018 by a psychologist regarding [Ms A] and [Mr J]; a letter dated [in] April 2018 by an Immunology Senior Social Worker in Western Australia concerning [the applicant]; and a letter dated [in] April 2018 by [the applicant]’s mother, [Ms N].  After the hearing the Tribunal received an email in which [the applicant] referred to difficulties he had during the hearing because of the video link and expressed his sorrow to everyone including the police, [Ms A] and [Mr J]. 

13. 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

14. 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. 

15. 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. 

16. 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

17. 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?

18. 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).

19. It was submitted that [the applicant] is no longer a risk.  The Tribunal however considers that while the degree of risk now posed by [the applicant] - whether to [Ms A] or to other persons - may have substantially diminished, still 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.

20. The Tribunal is therefore satisfied that the ground for cancellation in s.116(1)(e) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

21. Before considering whether the visa should be cancelled the Tribunal refers to matters that it has taken into account in reaching its conclusion on the question of risk and related matters that bear on the exercise of discretion.    

22. The Tribunal’s conclusion that the ground for cancellation exists is based mainly on the grave and repetitive nature of [the applicant]’s offending.  The Tribunal elicited sufficient details about his violent offending to indicate that whatever precise physical harm he has done to [Ms A] – about which there was some conflict in the evidence - he has done serious physical harm to other persons.  

23. [The applicant] has acknowledged the seriousness of his offending and expressed what the Tribunal considers to be genuine remorse.  It is emphasised by [the applicant] and on his behalf that his most serious offending took place between 2008 and 2015 ([between particular ages]) when he was using amphetamines. 

24. The relevant [Health Service 1] letter refers to statements made by [the applicant] to the effect that when he was young his father abused alcohol and was verbally and physically abusive towards him.  The history given by [the applicant] includes that before he began committing offences he tried to direct his energy toward sports.  He represented Victoria in [Sport 1] for four years.  Things did not get better for him at home.  [the applicant] “gave up” and “stopped caring”.  He left school and stopped playing [Sport 1].  He turned to drugs as an escape.  That was when his “life of crime” began.  [The applicant] has stated that when he was last in prison it occurred to him that he was becoming like his father.  He became determined to “change in every way humanly possible”.

25. To a greater or lesser degree virtually all of the persons who have written letters of support for [the applicant] or given oral evidence to the Tribunal have expressed an awareness of his criminal past.  They have spoken about what [the applicant] has done to change his life and how he behaves now towards [Ms A], [Mr J] and the general community.  The evidence in relation to [the applicant]’s community activities includes a letter dated [in] November 2017 by [Mr O], senior assistant at [a local sports club].  [Mr O] wrote about [the applicant]’s involvement in event organising, junior [sports] clinics and fundraisers.

26. The time that elapsed after [the applicant] was released from prison - in November 2015 - before the episode that led to his conviction in early 2017 is worthy of note.  There are no court sentencing remarks or police charge summaries before the Tribunal.  What [the applicant] says about the January 2017 conviction is that while he was driving he was pulled over by police and accused of being on his mobile phone.  He said that the Court later accepted his denial.  [The applicant] said that the police officer who stopped him told him there was an outstanding arrest warrant from an alleged incident in 2013.  [The applicant] said that he became very upset because he had been in prison since that year and it did not make sense to him.  He said he tried to explain but the officer would not listen.  [The applicant] said that he used “profane language”.  The old warrant was found to be “incorrect” and that matter was dismissed but still [the applicant] was charged because of the language he used.  The Tribunal has noted that in January 2017 the Court convicted [the applicant] and ordered that he pay money into the Court fund but otherwise adjourned the matter to January 2019.  Given what [the applicant]’s record indicates about his past interactions with police, the way he behaved on this occasion is a serious matter despite the reasons he gave for being upset.  The order made in January 2017 indicates that the Court regarded the matter as relatively minor.  The Tribunal has only [the applicant]’s evidence about the circumstances but considers that the episode was in a different category to his much more serious offending prior to May 2015.  In the meantime, there is evidence that [the applicant] had engaged with professional services to address his substance abuse, that he had obtained steady employment.  There is evidence that more recently he has participated in a dozen anger management sessions.  The Tribunal mentions that the relevant [Health Service 1] letter states that during his engagement with drug and alcohol services [the applicant] engaged “honestly and openly” and succeeded in abstaining from amphetamine use and separating himself from “negative peers”.  [The applicant] worked hard to “integrate himself into mainstream society”.  

27. It may be that [the applicant] was required by the Court to attend anger management sessions.  Nevertheless, just as he first engaged with drug and alcohol services years ago, [the applicant] began participating in the anger management program months before the Department notified him that consideration was being given to cancellation of his visa.  These are not steps he took only because he was on notice that his visa might be cancelled. 

28. Further on the subject of [the applicant]’s employment, the Tribunal notes that a letter on behalf of [Business 1] dated [in] November 2017 indicates that [the applicant] was employed by that company from November 2015 to June 2017 first as [an entry level employee] and [later]  as manager of his own [team].  [Mr D], a director with [Ms E] of another [company], [Business 2], wrote a letter that was submitted to the Department and he gave oral evidence to the Tribunal.  [Mr D] met [the applicant] about five years ago.  He knew [the applicant] when [the applicant] was working for [Business 1].  [Mr D] employed [the applicant] from June 2017.  [Mr D] knew something of [the applicant]’s past but said in effect that he had the right temperament for managing his crew and dealing with clients and tradespersons on [work] sites in situations where there are deadlines and other pressures but safety is a priority.  [Mr D] acknowledged that the industry has strict alcohol and drug protocols.  He told the Tribunal that he has the capacity for on-site drug and alcohol testing of staff but in the time he has employed [the applicant] he has never had any concern that [the applicant] was affected by drugs or alcohol.  

29. [Mr D]’s evidence supports what [the applicant] and [Ms A] told the Tribunal about [the applicant]’s commitment to refrain from substance abuse.  This is obviously very important, for the Tribunal heard that it was during the time that [the applicant] abused drugs that his most serious offending occurred. 

1. At this point the Tribunal needs to refer to specific information covered by the non-disclosure certificate.  First, there is information that [the applicant] was investigated by police in 2017 regarding a “possible” charge of possessing a drug of dependence.  (It appears [the applicant] was arrested and found in possession of a liquid that police were suspicious about).  Police however advised the Department that they were not going to proceed with the matter.  Secondly, police later received an anonymous allegation in particular that [the applicant] was using “ice”.  It does not appear that any charge was ever laid.  Thirdly, in about the middle of 2017, police investigated a “recklessly caused injury” matter but they did not proceed with that.

2. It appears that police did not inform the Department as to why it was that no charges were ever laid.  Obviously, so far as the first two matters are concerned, had charges been laid and been admitted to or been proven, that would have seriously undermined claims that [the applicant] has not used illicit drugs for years.  Such evidence would have weighed very heavily in the Tribunal’s deliberations.  In the absence of such evidence, and having regard to the whole of the evidence that does exist, the Tribunal disregards the information.

3. [The applicant] and [Ms A] believe that the third matter - the “recklessly causing injury” matter in mid-2017 – relates to an incident at a party in May for [Ms A]’s birthday.  In essence [Ms A] and [the applicant] told the Tribunal that [Ms A] had been drinking heavily on that occasion.  She and [the applicant] were dancing.  [The applicant] stood on her foot.  It was accidental but [Ms A] was crying and yelling - “too drunk to care about the noise [she] was making”, she said.  Someone called the police.  Among other things, police obtained an intervention order.  [Ms A] subsequently had the order modified to enable [the applicant] to continue to reside with her and [Mr J].  [Ms F] was at the party and saw what happened.  She told the Tribunal that it was an accident.  [Ms A] also referred to a further incident that took place a month or two later.  She and [the applicant] returned home in the early hours of the morning after they had been at a friend’s [property].  She had been drinking but [the applicant] had not, so he was driving.  [Ms A] had hurt her [hand] and was upset about that but she “lost it” because she thought [the applicant] was not showing enough sympathy for her.  She yelled at him.  She demanded the car keys.  He threw them to her but she couldn’t catch them because her hand was hurt.  This made her angrier.  She said that someone must have called the police.  The police took [the applicant] away despite [Ms A]’s explanations to them.  Soon after that she went to Court and the intervention order was revoked. 

4. Significantly, as the Tribunal has noted, there was some conflict in the evidence as to precisely what physical harm [the applicant] has ever done to [Ms A].  [The applicant] acknowledged that he pushed [Ms A] a number of times.  According to [the applicant] and [Ms A] the most serious episode was several years ago when he threw an earring at her which hit her on the head and split the skin.  In contrast, [Mr B], [Ms A]’s uncle, told the Tribunal that while he regards [the applicant] as “a good bloke”  who cares for his family he thought [the applicant] “may have struck” [Ms A] once “but that was about it”.  [Mr B] appeared to be confused especially about when this may have happened.  He was mistaken at least as to when [the applicant] was last in prison but he said that it occurred before [the applicant] was last in gaol. 

5. [Ms A] told the Tribunal that - years ago - she had sought help from the police: when [the applicant] was affected by drugs she was scared of him.  Asked whether [Mr J] had ever been present on such occasions she said that they had coincided with [Mr J] being with his father.  On the other hand [Ms A] said that since [the applicant]’s release from prison in 2015 he had been “the best person” as her partner, [Mr J]’s stepfather and a member of the community.  [Ms A] said to the Tribunal that she “know[s]” that [the applicant] “looks bad on paper”.  In a comment echoed by some of the witnesses, [Ms A] said that anyone who knows [the applicant] now would not believe the crimes he had committed in the past.  She added that she would not “fight” now for someone she did not believe in. 

6. What [Ms A] has to say about [the applicant]’s behaviour and their relationship is important evidence.  But, of course, it must be firmly borne in mind that according to Court findings [Ms A] has been the victim of family violence perpetrated by [the applicant].  And it is important to note in this context that the material covered by the non-disclosure certificate includes statements by police in which they express continuing concern.  The possibility that, as a victim, [Ms A] could feel intimidated and be unwilling to disclosure her true feelings must be given serious consideration.  The Tribunal has had the advantage of hearing directly from [Ms A], albeit in [the applicant]’s presence via video link.  But, significantly, the Tribunal has also had the advantage of hearing from the other witnesses – in particular [Ms A]’s uncle and her sister and her friend, [Ms F], and [Ms A]’s and [the applicant]’s friends, [Ms G], [Mr H] and [Ms I].  All of them socialise regularly with [the applicant] and [Ms A].  While it is well known that family violence can so often be hidden, these witnesses all regard [the applicant] well.  It is further to be noted that while [Ms A]’s mother did not give oral evidence she made a statutory declaration in [the applicant]’s support, describing him as someone who had committed crimes but who is “a wonderful man” who has “transformed his life”. 

7. 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

8. 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’.

9. 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. 

10. 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. 

11. The Tribunal now considers the degree of hardship that may be caused (financial, psychological, emotional or other hardship) by cancellation.  Since [the applicant] was taken into immigration detention the family’s income has been only what [Ms A] earns.  She told the Tribunal that she has been managing but that things have been difficult for her.  It is patent that [the applicant]’s detention has been distressing for him and [Ms A] in particular.  The Tribunal has referred to the fact that [the applicant] was transferred to [Immigration Detention Centre 1] for medical reasons.  The family has requested that he be transferred to Victoria for these reasons and to enable contact.  The Immunology Senior Social Worker’s letter supports the request.  The letter mentions that [the applicant] contracted [a particular illness] leading to his admission to [a particular hospital] [in] March 2018.  The letter further refers to emotional distress suffered by [the applicant] in being separated from his family.  [The applicant] has reportedly taken steps recently to “reconnect” with his father but his main family in Australia are [Ms A] and [Mr J].  The Tribunal has noted that [the applicant] has lived in Australia since he was a [young] boy.  His immediate family and his friends are here.  Further in support of the request that [the applicant] be transferred to Victoria are the psychologists’ reports.  They were made by [Ms P].  The first report, dated [in] January 2018, concerns both [Ms A] and [Mr J].  [Ms P] considered [Ms A] was suffering severe anxiety and depression as the result of [the applicant]’s detention (then at [Immigration Detention Centre 2]).  [Ms P] noted [Ms A]’s report that [Mr J] had become most unwell and that he had been struggling with everyday life.  [Ms P] expressed the view that [Ms A] and [Mr J] would require psychological assistance for the foreseeable future while [the applicant] was in detention.  The second report, dated [in] February, concerns [Mr J].  [Ms P] saw him that day.  She expressed concerns for [Mr J]’s mental wellbeing and “the long term repercussions to [Mr J]’s life”.  She described a number of physical symptoms and behaviours he had that were related to stress.  [Ms P] reiterated that [Mr J] would require psychological assistance for the foreseeable future.  In considering the matter of hardship, it is to be observed that by his past behaviour [the applicant] has actually caused substantial hardship to [Ms A] especially.  Even if [Mr J] has not been affected directly, there are persons inside and outside the family whom [the applicant] has harmed or put at risk.  But, considering all the evidence on the point, the Tribunal finds that there is now a very substantial degree of hardship that would be caused to [the applicant] and to [Ms A] and [Mr J] if the visa is cancelled.  This is a factor that, on balance, has substantial weight in favour of not cancelling the visa.

12. Next the Tribunal considers the circumstances in which the ground of cancellation arose and especially whether the circumstances in which the ground for cancellation arose were beyond [the applicant]’s control.  [The applicant]’s offending behaviour did not commence until several years after he first arrived in Australia: he arrived at [young age]; his offending commenced at [a later age].  The Tribunal has referred to [the applicant]’s statements about the history – for instance, that although he showed promise as a junior [Sport 1] player he “gave up” turned to drugs and committed crimes, many of them very serious ones.  Substantially if not entirely, it is claimed that drug taking is the reason for his criminal behaviour.  Viewed as a whole, the evidence indicates that since his release from prison at the end of 2015 [the applicant] has substantially if not absolutely turned his back on drugs and crime.  The Tribunal notes the mitigating circumstances that [the applicant] claims there to have been, but the Tribunal is concerned that his criminal activity was so serious and that it continued for as long as it did.  Even if the risk posed by [the applicant] now is significantly less than it was before, it is of great concern that the risk exists.  The Tribunal does not accept the circumstances in which the ground for cancellation arose were beyond [the applicant]’s control.  The Tribunal considers that the circumstances in which the ground of cancellation arose do not weigh in [the applicant]’s favour.   

13. The Tribunal now considers [the applicant]’s past and present conduct towards the Department. There is no indication that [the applicant]’s conduct towards the Department has been of concern.  On the other hand he has a number of criminal convictions, some of which have been so serious that they have resulted in significant gaol terms.  A number of the convictions indicate a disregard for Court orders and Australian laws generally.  This factor ultimately has only moderate weight in [the applicant]’s favour. 

14. The Tribunal now considers whether there are mandatory legal consequences, such as whether cancellation would result in [the applicant] being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent him from making a valid visa application without the Minister’s intervention.  Cancellation may result in [the applicant] being detained and removed from Australia.  He may also be prevented from applying for further visas while in Australia and be affected by Public Interest Criterion 4013 preventing the grant of a further visa to him for three years.  In the particular circumstances of the case described above - especially when discussing the impact of cancellation on [the applicant], [Ms A] and [Mr J] - the Tribunal considers that these mandatory consequences would not be reasonable. 

15. Among other things, the delegate remarked that if the visa were cancelled and [the applicant] went back to New Zealand, [Ms A] and [Mr J] could remain in contact with him, could visit him in New Zealand, or could even live with him there.  The Tribunal does not consider that these would be reasonable options.  Among other relevant evidence there are [Ms P]’s reports indicating that already, with [the applicant] detained interstate, [Ms A] and [Mr J] are experiencing significant psychological problems.  [Ms A]’s and [Mr J]’s close family members are in Australia.  Their friends are here.  [Ms A]’s employment is here.  [Mr J] attends school here and is involved in one or more sports clubs here.  [Ms A] described [Mr J] as a shy boy and said that she believes that even for him to relocate to another suburb and change school would cause major upheaval. 

16. Other relevant comments by the delegate include that the Department had no information about [the applicant]’s family in New Zealand and that, in view of his employment history in Australia, [the applicant] could reasonably be expected to obtain satisfactory work in New Zealand.  The Tribunal heard that [the applicant]’s family in New Zealand is limited: his mother and four siblings are there.  Since 1997 [the applicant] has spent very little time in New Zealand.  In her letter [the applicant]’s mother states that [the applicant], having come to Australia at [a young age], has no connection with his siblings or the extended family in New Zealand and so he could not ask for anyone’s help there.  [the applicant]’s mother further states that she plans to move to Australia later this year to look after some of her grandchildren so she would not be able to help him in New Zealand.  The lack of family support for [the applicant] in New Zealand may be overstated.  There is no specific evidence before the Tribunal about [the applicant]’s job prospects in New Zealand though, unlike the situation in Australia where [Mr D] told the Tribunal he is prepared to employ [the applicant] straight away if [the applicant] is released from detention, [the applicant] would have to look for work there.  These factors therefore may weigh to some degree in [the applicant]’s favour, but they do not do so strongly, in the Tribunal’s view.   

17. There would be no consequential cancellations under s.140.

18. The Tribunal now considers whether any international obligations would be breached as a result of the cancellation.  There is no claim, and no evidence to support a claim, that Australia’s non-refoulement obligations would be breached as a result of cancellation of the visa.  The situation concerning [Mr J] is another matter.  Article 3(1) of CROC (Convention on the Rights of the Child) provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.  (In summary, Article 6 concerns the right to life; Article 9 concerns the principle that children not be separated from their parents against their will except in specified circumstances; and Article 24 concerns the right of children to enjoy the highest attainable standard of health).  Article 9(4) of CROC contemplates that a parent may legitimately be separated from children through deportation.  Article 23(1) of the ICCPR (International Covenant on Civil and Political Rights) provides that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

19. The Tribunal treats the best interests of [Mr J] as a primary consideration.  It is for the Tribunal to decide what weight to give the consideration: see Sami v MIAC [2013] FCAFA 128.  [Mr J] is said by [Ms A] to have a reasonable relationship with his biological father but the evidence indicates that [the applicant] actively participates in [Mr J]’s schooling and social and sporting life.  A number of the witnesses described [the applicant] or less as a strong and positive role model for [Mr J].  The Tribunal gives weight to the detriment it accepts that [Mr J] would suffer if the visa were cancelled - directly but also indirectly resulting from the impact that cancellation would have on his mother. 

20. There are not any other relevant matters to consider.  

21. So far as it can be ascertained from the material before the Tribunal, consideration whether to cancel [the applicant]’s visa began in mid-2017 after police made inquiries of the Department about him.  Although police gave the Department the information mentioned earlier and expressed their concerns for [Ms A]’s welfare, the NOICC and the primary decision were based not on those matters but rather on [the applicant]’s criminal record up until January 2017.  From the material before the Tribunal it appears that police believed [Ms A] to be in fear of [the applicant].   Whether this is more than just what police inferred is not clear, but in December 2017 police said they had concerns for [Ms A] “due to the history”.  They also referred to welfare checks they had made but said there had been no new (family violence) issues.   

22. 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

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

   John Billings
   Senior Member