1732002 (Migration)

[2018] AATA 5359

1732002 (Migration) [2018] AATA 5359 (11 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1732002

MEMBER:Michael Hawkins

DATE AND TIME OF

ORAL DECISION AND REASONS:          11 December 2018 at 11:54 am (QLD time)

DATE OF WRITTEN RECORD:                14 December 2018

PLACE OF DECISION:  Brisbane

Statement made on 14 December 2018 at 5:40pm

CATCHWORDS
MIGRATION – cancellation – Subclass 444 Special Category (Temporary) (Class TY) visa – criminal offences – committed in group environment – out of character – low risk of recidivism – no family support in New Zealand – best interest of younger siblings – decision under review set aside

LEGISLATION

Migration Act 1958, ss 116, 375A

CASES

Botha v Minister for Immigration and Border Protection [2017] FCA 362
Gong v MIBP [2016] FCCA 561
Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
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.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 December 2017 to cancel the applicant’s Subclass 444 Special Category (Temporary) (Class TY) visa under the Migration Act 1958 (the Act).

2. At the hearing on 11 December 2018 the Tribunal made an oral decision and gave an undertaking to provide a statement of decision and reasons within 14 days of the hearing date. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. 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.

   Background

4. [The applicant] was born in Samoa on [date]. He is [age] years old.

5. He has lived in Australia since he was [a child] with the exception of a brief period when he lived in New Zealand in 2007.

6. [The applicant] resided with his family in Australia until he and his siblings were placed into foster care in around 2009. He remained in foster care until around 2012 when he was placed in independent living. He has no relationship with his father and limited and irregular contact with his mother who has no fixed address.

7. He has maintained a strong and supportive relationship with his brothers and sisters, including his eldest sister [Ms A], who has been a mother-type figure to her younger siblings. He intends to reside with his family at their [Suburb 1] residence if his visa is reinstated.

   Criminal Charges and Visa Cancellation

8. In around September 2016 [the applicant] was charged with grievous bodily harm (GBH). The charge related to events which occurred [in] June 2016. He was subsequently granted bail and entered a plea of not guilty.

9. While on bail for the GBH charge, [the applicant] was charged with various offences [in] December 2016 (“December 2016 charges”). These charges included [armed] robbery, [assaults] occasioning bodily harm and [charges] for possession of dangerous drugs. His bail was revoked and he was admitted to custody. He plead not guilty to these charges. He has remained incarcerated since this time.

10. The delegate cancelled [the applicant]'s visa under s116(1)(e) of the Act by decision dated 15 December 2017.

    Tribunal Hearing Adjournment

11. [The applicant] applied for a review of the delegate's decision on 18 December 2017. His matter was listed for hearing on 11 April 2018.

12. An adjournment of this hearing was sought on multiple grounds, principally due to the absence of sufficient information to assess whether it was appropriate to cancel his visa. This included consideration of the following with respect to [the applicant]:

    ·his criminal charges, namely his GBH and his December 2016 charges, had not yet been before the court;

    ·he was pleading not guilty to all charges;

    ·he was a co-accused in all charges, with December 2016 charges involving multiple co-offenders and no available particulars or information as to what role he played (if any) in the alleged offending;

    ·there was a risk that, should the Tribunal decide his matter against him on the basis of such limited and speculative material, [the applicant] may later be acquitted of the charges and would have lost his only opportunity for an independent review of his cancellation.

13. For these reasons, [the applicant] requested the Tribunal adjourn the hearing until such time as his criminal matters proceeded to trial and an outcome was pending. His request was granted conditional on the basis that the Tribunal be notified when his matters were listed for trial and the outcome thereof.

    Outcome of Charges

    December 2016 Charges

14. With respect to [the applicant]'s December 2016 charges, a nolle prosequi was entered in relation to all charges [in] October 2018. A copy of the Verdict and Judgement Record (VJR) in relation to the nolle prosequi was presented for the Tribunal's reference. That is the prosecution determined that they would offer no evidence and dropped all of those charges.

    GBH Charge

15. A nolle prosequi was also entered for [the applicant]'s GBH charge [in] August 2018. This charge was subsequently downgraded to unlawful assault occasioning bodily harm whilst in company (AOBH).

16. He was sentenced before [a judge] in [a] Court [in] December 2018. He received a sentence of time served with a declaration of 6 months imprisonment pursuant to s159A of the Penalties and Sentences Act 1992. His remaining 18 months incarceration were taken into account but not declared.

17. The representative was instructed by his criminal lawyer and barrister that [the judge] made the following findings in relation to [the applicant]'s AOBH conviction:

    ·the offence was out of character;

    ·he poses a low risk of recidivism;

    ·his removal from Australia would cause him significant hardship.

18. The Tribunal was advised that His Honour further noted that [the applicant] was generally remorseful for the incident and his period of incarceration would be a significant deterrent to any further offending. A copy of [the judge]'s sentencing remarks was requested but was not available before the hearing.

19. The Tribunal noted the representative’s submission that what is significant about the sentence is that the Court declared his sentence of 6 months' time served as being the appropriate sentence. By not declaring the 18 months, the Court explicitly found that it would have been inappropriate to express that his sentence should have been recorded as being higher - for example being a sentence of 24 months or 12 months and thereby putting into operation automatic or discretionary character cancellation provisions under s501 of the Act. [The applicant] has therefore spent 24 months in custody and so has had a significant opportunity to reflect upon and appreciate his actions. The Court nonetheless has identified that the appropriate penalty is on the moderate and lower end of the spectrum and is reflective of the fact that he has spent the time up until sentence in custody.

    Criminal History

20. [The applicant] has no outstanding criminal charges. [The applicant]'s criminal history can be summarised as follows:

    ·[date]/6/2014 - Commit public nuisance - $200 fine; no conviction recorded.

    ·[date]/6/2014 – Commit public nuisance - $150 fine; no conviction recorded.

    ·[date]/6/2016 – Assault occasioning bodily harm - Time served, 6 month sentence declared.

    ·[date]/11/2016 - Failure to appear in accordance with undertaking - $400 fine; conviction recorded.

    Does the ground for cancellation exist?

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

21. A visa may be cancelled under s.116(1)(e) if the Minister 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. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

22. 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

23. The Tribunal notes that a Certificate pursuant to s.375A of the Act was contained in the Departmental file with respect to particular folios. The Certificate indicates disclosure of the material would be contrary to the public interest because it contains ‘third party information from Police, and the department does not have authorisation to release it’. The Certificate is signed. During the review hearing, the Tribunal offered a copy of the s.375A Certificate to the applicant and discussed 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. The Tribunal advised that it proposed to place no weight upon the material as it contained a superseded Queensland 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 of the file as it contained a document of an administrative character which was not relevant to the review. There being no objection from the applicant, the Tribunal has placed no weight upon the aforementioned documents.

    Evidence at the review hearing

24. The applicant had provided an extensive written statement prior to the hearing together with multipole witness statements. The Tribunal is satisfied that the applicant has been sentenced and that there are no pending criminal charges in relation to the applicant.  

25. The applicant appeared at the Tribunal in the company of his Representatives, being a Solicitor and Counsel. He was also accompanied by his Consulting Psychologist, his older sister, [other] siblings and a neighbour. All appeared in support of the applicant.

26. The Tribunal asked the applicant what he had learned from his recent experiences. He replied that he is drowning in regret. He said he very much regretted getting involved in the altercation and causing harm to the victim. He says it was never his intention to harm the victim. He said he had never been involved in any previous incidents of violence. He said his act was cowardly. He said whilst this happened whilst he was much younger, he says he does not use that as an excuse. He said that he had not been breached or involved in any incidents whilst in jail.

27. The Tribunal asked the applicant whether he had had any involvement with drugs. The applicant admitted to experimenting with marijuana many years ago. He said he now does not use drugs, smoke cigarettes or consume alcohol.

28. The Tribunal asked the applicant about the friends he keeps company with. Specifically, the Tribunal asked whether he was in continuing contact with the group of friends with whom he had engaged in the activities leading to his charge of assault. The applicant said he was not in touch with them. He further said that he had not been involved with any of the people who had been involved in the December 2016 charges.

29. The Tribunal asked the applicant what he would do if he was required to return to New Zealand. The applicant replied that he just doesn’t know what he would do. The Tribunal asked whether he had considered this question during his long period of incarceration. He said he constantly worried about it, but had not formalised any action plan. The Tribunal asked the applicant what his plans were upon release. The applicant replied that he intended to live with his sister and siblings in [Suburb 1]. He said that his sister’s house is across the road from [Ms B], who has assisted him to find employment. He says he will have two casual jobs upon release - one being with [Ms B]’s brother doing [work] and another job [with] another friend. The Tribunal confirmed that the friend was not someone from his past.

30. The Tribunal spoke with the applicant’s youngest brother, [Master C]. The Tribunal recorded that [Master C]’s evidence was unsworn.

31. The Tribunal confirmed that [Master C] was [age] years old. The Tribunal asked [Master C] what his older brother meant to him. He replied that the applicant was like a second father to him as he supports him. He said that the applicant teaches him things and is someone he can look up to. He confirmed that he has no contact with his actual father.

32. The Tribunal spoke with the applicant’s older sister, [Ms A]. She confirmed that he will live with her, her husband and her [children] and her [siblings]. She confirmed that the applicant gets on well with her husband.

33. The Tribunal spoke to the witness, [Ms B]. She confirmed that she had been a family friend for over 10 years. She said she was [an occupation] and believes that there are solid prospects for the applicant in the future. She said she hopes he will obtain a Blue Card and be able to engage with children in the pursuit of his music ambitions. [Ms B] also mentioned that his past friends were all now in apprenticeships. She confirmed that the applicant was musically very talented.

    The ground for cancellation exists

34. The Tribunal has carefully considered whether the ground for visa cancellation in s.116(1)(e)(ii) of the Act exists.  The applicant’s criminal history is serious, with convictions between 2016 and 2018.  These have been more fully discussed above. He has served one term of actual imprisonment.  His offences have all been related to public nuisance and an assault in public. The assault was aggravated in nature.

35. The question is whether the applicant’s conduct supports a conclusion that his presence in Australia ‘is, or may be, or would, or might be a risk to the health or safety of an individual or individuals.’  The Tribunal considers that the applicant’s criminal offending has caused harm to the health and safety of an individual and that, absent any strong countervailing considerations, his continued presence may, or would be, or might be, a continuing such risk.

36. In the view of the Tribunal, the evidence of the applicant strongly supports him having taken ownership and responsibility for his conduct and for the consequences of his behaviour. He shows significant, and in the view of the Tribunal, genuine and sincere remorse for his conduct, the offences themselves and for their impact on others.

37. The Tribunal considered the representative’s extensive submissions.

    While we accept that his AOBH conviction may be sufficient to engage s116(1)(e) given the provision's extremely low threshold, this offence and any associated risk of recidivism should not be assessed in a vacuum and without due consideration of all relevant circumstances.

    [The applicant]'s GBH charge was downgraded to AOBH in August 2018. The Tribunal are no doubt aware than an AOBH is much less serious offence under s339 of the Criminal Code Old, attracting a maximum penalty of 7 years imprisonment and giving sentencing courts the discretion to impose lesser penalties, such as fines and probation orders. In [the applicant]'s case, he received a declaration of 6 months' imprisonment with time already served. The Sentencing Judge accepted that the offence was out of character, and that there was a low risk of reoffending. As noted above the Court expressly limited the declared time for the sentence to only 6 of the 24 months that he was in custody indicating clearly that the sentence imposed was at the lower end of the spectrum.

    It is not contested that [the applicant]'s AOBH charge involved violence. Nevertheless, this offence must not be taken out of the context in which it occurred. In short, [the applicant] was [age] years old at the time of the offence. He was with a group of teenagers in [Suburb 2] in the early hours of a Saturday morning. He had consumed alcohol at a licensed premises but was not heavily intoxicated. He and his friends encountered another group of males and a "scuffle" ensued which was quickly broken up. [The applicant] was not involved in this first altercation but rather he interceded to break it up. They encountered the same group again when they were sitting in a car which resulted in various verbal provocations with escalating aggression. The confrontation culminated in [the applicant] striking the complainant who fell to the ground, at which point [the applicant] immediately backed off. He then voluntarily accompanied the police to [Suburb 2] police station where he admitted to punching the complainant. It later transpired that the complainant had sustained a dislocated shoulder however it was also acknowledged that he had dislocated that shoulder on three prior occasions.

    His youth, being a significant matter in sentencing matters, should be taken into consideration as well by the Tribunal as this out of character, momentary lapse of judgement should not ruin his future.

    Importantly, while other people were involved in the altercation, [the applicant] accepts full responsibility for his actions and has not sought to blame others or minimise his own culpability. With the benefit of hindsight and maturation, he accepts he lost control of his temper and involved himself in a confrontation which he would ordinarily avoid. He confirms in his statutory declaration that he previously attended [Suburb 2] and other nightlife precincts on multiple occasions as is common experience for adolescents. He reports having witnessed other violent or drunken altercations "all the time" but he'd always steered clear of these clashes.

    [The applicant] has now, by virtue of his experiences in the last two and a half years, developed a healthy respect and awareness for high-risk situations. Understandably, he has no desire to attend any nightlife precincts or similar areas should such situations arise again. That is not say his avoidance of this areas is required to mitigate his risk of reoffending but rather indicative of his maturity and wariness of such places.

    There is ample evidence before the Tribunal that [the applicant]'s offending was uncharacteristic. First and foremost, [the judge] made an express finding to this effect having reviewed all relevant circumstances surrounding the charge including the brief of evidence, schedule of facts and [the applicant]'s criminal history. As stated above, he has no prior criminal offending involving violence or aggression. With the exception of his breach of bail in November 2016 (which did not warrant its revocation but only a fine), he has not committed any further offences in the two and half year period since AOBH occurred. In the absence of any evidence to the contrary and given his low-level criminal history, His Honour's finding should be accepted.

    His Honour's findings are reinforced by A/Professor [Dr D] who states his AOBH offence "is particularly uncharacteristic and does not appear to be premeditated". Indeed, [Dr D] accepts he had no intention to harm the complainant. In his opinion, [the applicant] can be considered in the low risk category of offending given the "complete absence of core factors associated with violent offending". This was likewise accepted by [the judge] in his sentencing remarks. [Dr D] went on observe there are a number of protective factors in place that mitigate any risk of reoffending, namely:

    ·An absence of underlying deviant ideation;

    ·An absence of substance abuse dependencies;

    ·Supportive and stable accommodation;

    ·Ongoing emotional support of his siblings;

    ·Increased insight/awareness of high risk situations;

    ·Lack of outstanding criminogenic treatment needs.

    It is evident that his two years of incarceration are a significant deterrent to any further offending. [The applicant] in particular wishes to emphasise that his time in custody has been a very sobering experience. This has been reaffirmed by his close family and friends who have remained in close contact with him during this period. It must be borne in mind that this was his first custodial experience and a particularly daunting one given that it coincided with his visa cancellation proceedings. It was also his first real encounter with the police and the authorities in any meaningful way. The threatened sanction of deportation, which would result in the loss of his family and return him to a country of which he is estranged, will likewise deter him from any future misconduct. These matters, taken together with the protective factors of his release plans, auger well for his resolve and capacity to remain offence-free in future.

    Based on the above, we submit there is a negligible chance of [the applicant] engaging in further offending. Given the established consensus that his AOBH offence was an aberration and [the applicant] is acutely cognisant and capable of avoiding similar situations again, we submit there is no real possibility of him posing a risk to the safety of others or the wider community. Accordingly, we submit the ground for cancellation cannot be established in present circumstances.

1. The Tribunal discussed with the representative a proposed finding that the grounds for visa cancellation exist notwithstanding that submission. The representative did not argue against such a finding.

2. On balance, after careful consideration, the Tribunal gives more weight to the evidence which suggests the grounds for visa cancellation exists than it gives to the evidence to 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 Australian community.  The Tribunal is therefore 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

3. 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, is 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’.

4. 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].

5. The Tribunal considered the representative’s submission as follows:

   [The applicant] travelled to Australia as the holder of a Special Category (subclass 444) visa. This visa was first granted to him in around 1999 when he was three or four years old. He remained in Australia until 2007 at which time he travelled with his family to New Zealand. He relocated with his siblings to Australia in July 2007 and he has remained here since this time. Had his visa not been cancelled, it would have continued to permit him to remain living in Australia indefinitely.

   [The applicant] completed nearly the entirety of his schooling in Australia, having completed grade 12 at [High] School in [year]. He also obtained casual and part-time employment in different roles. He has been offered employment with a [company] which he can start immediately if released to the community.

   While his father and mother were notably absent from his childhood and he remains alienated from them (in particular his father with whom he has had no contact for several years), he has a close and supportive relationship with his siblings. Their connection was sustained through the years of their separation in different foster care homes. They have also been in constant contact with him during his incarceration, including visiting him on a weekly basis and speaking on the phone 8 to 10 times per week.

   [The applicant]'s siblings, with the exception of [one] who lives nearby, currently live with his eldest sister [Ms A], her partner and their [children] at their [Suburb 1] residence. [The applicant] intends to live with his sister and family upon his release. By contrast, he has neither connections, supports, a place to live or employment prospects in New Zealand or Samoa.

   His purpose of remaining in Australia is evidently to reside, as he has for nearly 17 years, with his family. Accordingly, we submit there are compelling reasons for him to remain in Australia which weighs against cancellation.

   Both [the applicant] and his family will face considerable hardship if his Special Category visa remains cancelled. This hardship was expressly recognised by [the judge] in his sentence [in] December 2018.

   As a starting point, we wish to emphasise that he is incredibly close to his siblings. This is perhaps a closeness borne from their experiences in foster care and the absence of their parents. Their very close relationships despite their separation during this period is testament to their strong familial bond. They are the only family he has and have been in daily contact with him during his incarceration and visited him on a weekly basis. They have understandably been distressed by his time in custody and his likely deportation should his visa not be reinstated.

   He intends to live with his eldest sister [Ms A], her partner and children and his other [siblings] at their home in [Suburb 1]. Prior to his incarceration, [the applicant] helped look after his younger siblings from time to time, including taking them to school, babysitting and chipping in for groceries.

   If [the applicant]'s visa remains cancelled, he will be removed to New Zealand after the Tribunal proceedings. This will have a negative impact on both himself and his siblings.

   He will face considerable obstacles in the event of his removal to New Zealand. It is submitted these challenges are not merely limited to those associated with relocating to a country he has not lived in since he was a child and starting afresh. Rather, we hold serious concerns that he will not be able to sustain basic living standards due the hardship he will face in New Zealand.

   He has no known family support in New Zealand, having lived in Australia for the majority of his life. He instructs that his biological father may be residing in New Zealand but he does not know his whereabouts and no knowledge of whether he could support [the applicant]. In any event, he has no intention of contacting his father given [family reasons]. While he has been in irregular contact with his mother, she resides between Australia, New Zealand and Samoa and has no fixed address. Given her previous limited involvement in his life and upbringing, she cannot be considered a stable, positive support to him if he is removed to New Zealand. He does not know of any other relatives he could live with or who could support him.

   [The applicant]'s siblings are unable to relocate to New Zealand to live with him. They have resided permanently in Australia for many years and regard it as their home. His eldest sister [Ms A] is established in Australia through her partner and [children], who are Australian citizens. She is employed as an [occupation] at [workplaces]. She is the principal breadwinner in the family and has multiple dependents who live with her, including her own [children] and her [younger] siblings who are enrolled in local primary and high schools. Their relocation to New Zealand where [Ms A] has no employment prospects would place too much financial strain and pressure on the family. It would also be undesirable given the proximity to their father. Their continued residence in Australia will make the impact of cancellation and removal particularly harsh on [the applicant].

   He additionally has other close personal supports, namely [Ms B] and her family. [Ms B] is an Australian citizen by birth and is employed as [an occupation] at [a workplace]. [Ms B] lives across the street from [the applicant]'s family and has been providing support and assistance to him since 2010. She has sustained a close connection with [the applicant] during his incarceration, including regular visits and talking with him on the phone 2 to 3 times a week. She has pledged to continue supporting him if his visa is reinstated.

   In view of the above, [the applicant]'s removal to New Zealand would completely isolate him from his immediate family and support network. He will likely not see them again for an extended period of time due to the prohibitions on his return to Australia and the prohibitive costs of overseas travel which his family cannot afford. It is submitted that his family and other personal supports are critical to his health and well-being. As he explains in his statutory declaration, they have been a huge part of sustaining his positivity and motivation while he has been in custody. In his words - "If they weren't here, I would have given up by now".

   While it is accepted that he could remain in contact with his family and supports by phone and email, these methods of contact are hardly a substitute for the day-to-day contact and support he can both receive and provide to them in Australia. These methods are hardly meaningful if they are to be sustained on an indefinite basis. Put simply, [the applicant] cannot be a supportive brother nor derive adequate support from his family when reliant solely on such channels to sustain their relationships.

   His isolation from his support network to a place where he has no equivalent or indeed any known and established familial supports is likely to hamper his reintegration to New Zealand. [The applicant] has negligible prospects of supporting himself financially should be removed. He has no employment prospects and a very limited employment history in Australia to recommend himself to employers. He has no income or savings. His family have limited financial means and cannot afford to contribute to the costs of his living expenses in New Zealand.

   Accordingly, he does not have any place to live and no savings at his disposal to help him re-build a new life. In these circumstances, it is likely that he would be entirely dependent on welfare and support services on an indefinite basis. In these circumstances, he is likely to face significant challenges in sustaining and establishing support networks, securing employment and accommodation, as well as the detrimental impact of his complete isolation from his family and networks in Australia.

   Further, [the applicant] has expressed concern on a number of occasions for the impact of his removal on his family, who rely on him for emotional support. He is acutely aware of the stress and anxiety they have endured as a result his incarceration and threat of deportation. It is anticipated that they will experience considerable suffering should his removal occur - in [Ms A]'s words in her statutory declaration dated 15 March 2018, "my siblings and I would miss him greatly and would always feel like there was a piece of missing". It follows that their suffering would be likely to exact a heavy toll on [the applicant] personally.

   Accordingly, we submit [the applicant] will not merely face adversity and financial distress as a result of being separated from his family and having to establish himself in New Zealand. Rather, it is reasonable to suggest that he may face such hardship as would prove insurmountable and his well-being could be placed in significant jeopardy. By contrast, if he remains in Australia he can live with his family, receive their day-to-day support and commence work immediately with a [company]. We consider this factor weighs significantly against the cancellation of his visa.

6. A report from the Consultant Psychologist A/Professor [Dr D] was also provided. His report was dated [December] 2018 and he was present at the hearing and offered further evidence in support. Key points from his clinical summary, risk assessment and concluding remarks are as follows:

   [The applicant] is [an age] year old male who experienced a somewhat unsettled childhood marked by parental and housing instability. Nevertheless, he demonstrated a keen interest in obtaining an education and made attempts to seek employment. The applicant does not appear to have substantially misused substances, aligned himself with a negative peer support group nor does he have a significant Queensland Court outcomes history. However, it does appear that he was sporadically placing himself in high-risk situations (with his peer support network) such as drinking alcohol in public places. Nevertheless and taken together, there are no marked aspects of his psychological functioning to explain the uncharacteristic offence.

   In regards to the origins of the current offence, [the applicant] appears to have been involved in a high-risk situation in a licensed-premises precinct when two groups of males became involved in a brief physical altercation. The applicant's assertion that he never intended to harm the complainant appears genuine and is consistent with the lack of previous violence-based incidents in his community-based functioning. [The applicant]'s tendency to engage in pro­social behaviours is further evidenced by his full cooperation with apprehending police officers. To a lesser extent, the applicant's behaviour is consistent with what is known about younger males who experience difficulties recognising and responding appropriately to risk, and these tendencies have been linked to the prefrontal cortex that does not fully develop till the age of 25. Given this, the maturation process (and his new parental responsibilities) will likely have a salutary effect on the risk of recidivism.

   Taken together, the offence is particularly uncharacteristic and does not appear to be premeditated.

   The applicant does not have any mental health treatment needs. But rather, presented as quite a resilient young male who has successfully negotiated a range of interpersonal stressors (associated with a custodial environment) over the past two years.

   As highlighted earlier, the applicant's risk of recidivism can be considered in the low category (based on the widely-used PCL-R and the HCR-20: Violence Risk Assessment Scale). In regards to such tools, it is noteworthy that the applicant presents with a complete lack of psychopathic tendencies, and such constructs have consistently been demonstrated to predict both violent and general offending behaviours. The applicant's first period of incarceration is also reportedly a significant deterrent against recidivism. In regards to the latter, research has demonstrated that the threat of sanctions can create a specific deterrent effect among certain individuals in regards to reducing the risk of recidivism, and [the applicant] presents as an individual with such typology. There are also a number of protective factors, including an absence of underlying deviant ideation, an absence of substance use dependencies, a reported employment opportunity, etc.

   In regards to the possible visa cancellation, [the applicant]'s only familial/emotional support links appear to be connected to Australia, which is comprised of his siblings and friends. More specifically, he maintains close relationships with all of his siblings, some of whom regularly visit him. He has confirmed stable post-custodial accommodation and is eager to commence employment in the [industry]. In contrast, [the applicant] has never resided in New Zealand and last visited the country in 2005 (while on a family holiday). At the time of assessment, the applicant was not cognisant of his mother's whereabouts, but he suspected that she might be residing in New Zealand. He believes that she moves regularly between Australia, New Zealand and Samoa. He has not had any contact with his biological father for an extended period of time, and is not aware of his whereabouts. Given this uncertainty, [the applicant] has no confirmed accommodation options in New Zealand and was not able to articulate any employment opportunities. He is also not aware of any other family members residing in New Zealand. Additionally, he could not identify any relatives who resided in Samoa nor could he formulate a possible plan to return to his place of birth. Not surprisingly, this is because he has resided in Australia for the majority of his life.

   Taken together, he struggled to articulate a basic strategy to successfully re­establish himself in New Zealand or Samoa. In contrast, the applicant's Australian-based release plans are clear, pro-social and achievable. He presented with a strong intent to avoid similar high-risk situations in the future, and given the absence of criminogenic treatment needs, the applicant's prognosis for the future can be considered optimistic.

7. The Tribunal has carefully considered the application to this matter of the United Nations Convention on the Rights of the Child (UNCROC) 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.  The Tribunal has done so in this matter and elevates the weight afforded to the evidence which is suggestive of hardship that might be faced by the applicant and his sibling children and which weighs against the cancellation of the visa.  The Tribunal also notes that this primary consideration may be balanced against other considerations.

8. The Tribunal affords considerable weight to the applicant’s claimed willingness to be involved in the shared care of the sibling children.  In this he is supported by the statements of the witnesses, to which the Tribunal has due regard.  The Tribunal also gives weight to the evidence before it that his older sister strongly advocates in favour of this.

9. This, however, only addresses part of the issue.  The Tribunal must be satisfied whether, and to what extent (including the weight that must be given to other considerations), the best interests of the sibling children are affected by the applicant either remaining in Australia or returning to New Zealand. 

10. It must be noted that the sibling children have so far spent all of their lives in the care of their older sister, their mother and various foster parents. 

11. The Tribunal notes the representative’s submission as follows:

    We hold concerns that there is the potential for [the applicant]'s younger siblings to be significantly and adversely impacted if his visa remains cancelled. In [the applicant]'s case, this includes [details of siblings]. His removal would mean their loss of a cherished brother, which may well be on an indefinite if not permanent basis as is discussed further above. They are unable to relocate to New Zealand to live with him as is stated above.

    We wish to highlight that these children have already been deprived of their parents in their upbringing. In these circumstances, [the applicant]'s eldest sister [Ms A] and to a lesser extent [the applicant] have served as parent-type figures to the children. [The applicant] has remained in constant contact with his siblings while in custody, including receiving weekly visits. He reports in his statutory declaration that his family have been really stressed throughout his criminal and immigration processes. Their anxiety and distress would be alleviated should he be allowed to remain in Australia.

    It necessarily follows that it is in his younger siblings' best interests that that his visa be reinstated so he can sustain a close and supportive relationship with the children.

12. Finally, the Tribunal has considered the prospects for the sibling children’s long-term care.  At present, that is undertaken by their older sister. The Tribunal has no doubts about the sustainability of the sibling children continuing to reside with older sister, at least in the short term.  The children therefore have a network of support stemming from both the older sister and friends which has been, so far as can be determined from the evidence, more than sufficient for their care.  The applicant has played a paternal role of sorts which has been limited only by his current term of detention. The Tribunal considered the financial impact on the children should the applicant be returned to New Zealand.  If the applicant returns to New Zealand and is able to gain employment there, it would be reasonable to expect that his capacity and willingness to provide financial support to the children would then be tested.  This evidence does not weigh in favour of or against cancellation.

1. On the evidence available to it, the Tribunal considers the best interests of the sibling children to be finely balanced.  After careful consideration, it considers that the risk to the sibling children’s interests from the applicant re-offending is low to non-existent.  The Tribunal finds that the best interests of the sibling children would, on balance, be adversely affected by the cancellation of the applicant’s visa.  On the evidence before it, the Tribunal considers the weight to be given to the best interests of the sibling children tends to factor against the cancellation of the applicant’s visa.

2. The Tribunal accepts that there is no evidence of adverse past or present behaviour by the applicant towards 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.  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 that Australia’s non-refoulement obligations would breached as a result of the visa cancellation.  These matters weigh neither in favour of, nor against, cancellation of the visa.

3. 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 for removal from Australia and likely face difficulties in obtaining a new Australian visa in the future.  The Tribunal places some weight on the evidence as to these matters and finds that they weigh against cancellation of the visa.

4. The applicant has resided in Australia since he was three or four years old.  The Tribunal accepts that he will face emotional and financial hardship if his visa is cancelled from the disruption to his familial, relationship and social networks.  Some weight is attached to these considerations, which weigh against the cancellation of the visa.   

5. The Tribunal accepts the applicant’s evidence and the evidence of [Ms B] that he has job opportunities in Australia upon his release from detention.  Some weight is accorded to this evidence and the Tribunal finds that it weighs against cancellation of the visa.  The weight the Tribunal accords this evidence is reduced by the applicant’s evidence that he has skills and could likely get a job as a landscaper in New Zealand.  This consideration reduces the weight to be given to the prospect of financial hardship.

6. The Tribunal must balance the factors in favour of and against the cancellation of the applicant’s visa.  Several factors have been found by the Tribunal to weigh against cancellation.  However, the nature and severity of the applicant’s offending is a matter of grave concern for the Tribunal given the fact the offence involved violence.

7. The Tribunal has carefully reflected upon the factors in favour of and against the cancellation of the applicant’s Subclass 444 visa.  The Tribunal has been especially cognisant of the best interests of the sibling children as a primary consideration, which, on balance, favours against cancellation.  The gravity of the applicant’s offending weighs in favour of the visa cancellation.  The Tribunal carefully considered the Trial Judge’s sentencing remarks (limited though they were), giving the applicant a declared jail term of six months, as against the potential penalties of up to seven years. The Tribunal has carefully considered the assessment of the consulting psychologist. It notes in particular the applicant’s strong work ethic and his strong peer group support. His offending arose in a group setting only and stems exclusively from the environment he found himself in. The psychologist noted that the applicant has no outstanding drug or alcohol abuse treatment needs and has no level of criminal versatility. He has accepted responsibility for his wrong-doing. His family are supportive of him and his, and the sibling children’s need, for his involvement in parenting. It noted that the applicant has strong familial and vocational links with Australia, a broad social network, and a range of employment opportunities. As he has not resided in NZ for virtually his whole life, and has not attempted to maintain interpersonal connections in NZ, he would have a very limited support network in NZ. On balance, therefore, the Tribunal finds that the factors in favour against cancellation of the applicant’s visa outweigh those to the contrary.

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

9. The Tribunal has also noted that whilst the applicant has served two years imprisonment against a sentence of only six months and is somewhat sympathetic to the applicant. The Tribunal observes the chance and opportunity being afforded to the applicant by virtue of the strong family support and excellent representation he has had but nevertheless recommends that in the event the applicant does so reoffend, that the department take immediate measures to cancel the applicant’s visa.

   DECISION

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

    Michael Hawkins
    Member