1733134 (Migration)

[2018] AATA 2559

1733134 (Migration) [2018] AATA 2559 (23 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1733134

MEMBER:James Lambie

DATE:23 May 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 23 May 2018 at 11:11am

CATCHWORDS
Migration – Cancellation – Subclass 444 (Special Category) visa – Substantive criminal history over 20 years – Emotional hardship – Family ties to Australia – Rehabilitation services available in New Zealand – No extenuating circumstances – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 116, 359, 359A
Migration Regulations 1994, r 1.03 Schedule 2 cls 114.211, 114.221, 115.221

CASES
Botha v Minister for Immigration and Border Protection [2017] FCA 362
Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 December 2017 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 444 (Special Category) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e)(ii) on the basis that his presence in Australia is or may be, or would or might be a risk to health or safety of an individual or individuals. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. On [date] February 2018, the Tribunal issued a summons to the Commissioner of the [State 1] Police Service seeking documents relating to the applicant’s criminal history. These documents were received on 2 March 2018. On 7 March 2018, the Tribunal wrote to the applicant pursuant to sections 359(2) and 359A of the Act to invite him to attend a hearing of the Tribunal and to respond to the information contained in those documents. On 12 and 16 March 2018, the Tribunal received material responding to the invitation, including a submission from the applicant. This material has been considered by the Tribunal.

4. The applicant appeared before the Tribunal by video link from [a detention centre], to give evidence and present arguments. The Tribunal also received oral evidence from his [sons] and from his wife, [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Samoan and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Does the ground for cancellation exist?

7. 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].

8. 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.

9. The Tribunal had before it documentary evidence obtained from the Departmental and Tribunal files including the Form 1099 Notice of intention to consider cancellation, person history and charge sheets obtained from the [State 1] Police Service under summons and written submissions provided for and on behalf of the applicant.

10. In relation to the person history and charge sheets, the Tribunal put to the applicant that the information was relevant to the review because it may suggest that his presence in Australia is or may be, or would or might be, a risk to the safety of an individual or individuals.  The Tribunal informed the applicant that it would discuss this information with him at the hearing and, depending upon his response, it may rely upon it in making an adverse decision.

11. The applicant has an extensive criminal record, dating back over 20 years.  Relevantly, that record includes:

    [Table containing applicant’s criminal history deleted].

12. The applicant was born in Samoa in [year].  As a baby, he was adopted by a cousin.  At the [age], he went to Auckland to stay with an aunt.  At the [age], he ran away from home and lived on the streets for about two years.  It was at this time he started drinking and using marijuana.  He moved to Wellington at about [age], where he met his wife and moved in with her parents.  He and his wife were married in about 1994, at [age].  In 1999, the couple, their two children and his wife’s parents came to Australia and moved to [State 1].  The couple now have 9 children [and] the applicant has another [daughter]. 

13. The Tribunal invited the applicant to address the subject of his criminal record, which commenced about three months after his arrival in Australia.  [Criminal history deleted].

14. [Criminal history deleted].

15. The Tribunal has carefully considered whether the ground for visa cancellation in s. 116(i)(e)(ii) exists. The applicant’s criminal history is extensive and serious, with numerous convictions recorded since 1999 and some 20 offences since 2002 relating to [a range of offences]. In addition to terms of probation and suspended sentences, he has served two terms of actual imprisonment.

16. The evidence of the applicant and the witnesses on his behalf as to the existence of grounds for visa cancellation was essentially that nothing very serious had occurred:  [Details of criminal incidents deleted].  This evidence was entirely unsatisfactory and was disclaimed by the applicant after hearing the evidence of his wife.

17. The Tribunal is satisfied on the evidence that the applicant has committed numerous acts of violence [over] a period of at least 15 years.  The violence has been accompanied by, or an incident of, [substance] abuse that the applicant failed to acknowledge until confronted by evidence of it at the hearing.  Given the long history of family violence in these circumstances, the Tribunal is satisfied that the applicant’s presence in Australia or may be, or would or might be a risk to health or safety of his wife and children.

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

    Consideration of discretion

19. 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’.

20. 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].

21. As discussed at paragraph 12 above, the applicant has lived in Australia for some 19 years and has 10 children in this country, 8 of whom were born here.  He has 3 grandchildren. The applicant and his wife first came to Australia following his parents-in-law and the Tribunal acknowledges the importance the applicant attaches to family ties and the fact that what family the applicant has in New Zealand is either estranged or absent.  Aside from the family aspects – considered further below – the applicant has presented no evidence of any compelling need to travel or remain in Australia.

22. In the absence of any express conditions on his visa, no weight is attached to the extent of any compliance with visa conditions.

23. The applicant has made efforts at rehabilitation but these have been limited by his failure to acknowledge the length and seriousness of his offending behaviour and the nature or, indeed, existence of his substance abuse.   Services to support his rehabilitation would be available to the applicant in New Zealand.  The Tribunal notes that no professional medical or psychological evidence was before it to suggest that the applicant would suffer psychological hardship if the visa is cancelled.  It does not accept suggestions to the contrary from witnesses who are unqualified in these fields.

24. The Tribunal accepts that he will face emotional hardship if his visa is cancelled from the disruption to his familial, relationship and social networks.  The applicant’s employment history, which includes periods of employment in unskilled work and long periods of unemployment, suggest that little weight can be accorded to any financial hardship that might be said to arise.

25. The Tribunal notes 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.

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

27. The Tribunal has carefully considered the application to this matter of the United Nations Convention on the Rights of the Child (CROC) and, as is relevant to the family unit, the International Covenant on Civil and Political Rights (ICCPR).  The Tribunal acknowledges that the best interests of the child must be treated as a primary consideration by administrative decision makers. 

28. The Tribunal heard evidence from the applicant, his wife and two of his sons and also considered the submission from the mother of his other daughter as to the effect of any cancellation of the applicant’s visa on his children.  The Tribunal had particular regard to the evidence of the applicant’s wife.

29. [Ms A] gave evidence that she finds it very difficult to cope with sole responsibility for the 6 minor children in her care.  Her congregation arranges for someone to attend weekly to assist, for which she is grateful.  She also gets some help from her adult children, but this is limited because they now have families of their own.  She said that it is difficult to get a baby-sitter because of the number of children that need to be supervised.  In addition, the teenagers need a father figure to deal with disciplinary issues.  [Ms A] acknowledged the applicant’s poor record and example, but said that her requirements of the applicant would be basic:  he would not be staying with the family under one roof, but would be assisting with supervision and doing what he could as a provider.  Without such help, she said, she is struggling.

30. The applicant’s sons supported the evidence of [Ms A], stating that the teenagers needed more supervision and that they had limited capacity to assist owing to their own family responsibilities.  The applicant gave evidence of his own willingness to resume paternal responsibilities and abide by whatever conditions [Ms A] wished to impose.

31. The Tribunal has given very careful consideration to these submissions as they relate to the question of the best interests of the children.  The best interests of the children are served by recognition of the benefits of the maintenance of a meaningful relationship with both parents and the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. This latter factor is to be given the greater weight: see, e.g., s. 60CC of the Family Law Act 1975.

32. The evidence before the Tribunal is that the applicant’s children have been, at the least, exposed to family violence committed by the applicant over a long period.  In addition, it is likely that abuse or neglect has occurred as a direct or indirect consequence of the applicant’s [substance] use.  What assistance he can offer his wife, in view of the evidence, is likely to be financially negligible and carries an unacceptable risk of further exposure of her and the children to family violence and abuse.  On balance, the weight to be given to the mitigation of this risk exceeds the weight to be given to any benefits said to accrue from the applicant’s physical proximity to the children.  Accordingly, the best interests of the children would not be adversely affected by the cancellation of the visa.

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

    DECISION

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

    James Lambie
    Senior Member