1804798 (Migration)

[2018] AATA 5419

1804798 (Migration) [2018] AATA 5419 (13 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1804798

MEMBER:James Lambie

DATE:13 November 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 13 November 2018 at 11:32am

CATCHWORDS

MIGRATION – cancellation – Subclass 444 (Special Category) visa– risk to health, safety and good order of Australian community – lengthy criminal history – drug user – assault – domestic violence order – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 198
Migration Regulations 1994, PIC4013

CASES
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 13 February 2018 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) on the basis that [Mr A]’s presence in Australia is or may be, or would or might be, a risk to health, safety and good order of the Australian community or a segment of the Australian community or the health or safety of an individual or individuals. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 8 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms B].

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(e). 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. [Mr A] is a New Zealand national who arrived in Australia [in] September 1986, at the age of [age].  His foster parents had moved from Christchurch, New Zealand to [a town] in [Australia] a year earlier.  [Mr A] had been getting into trouble with the police and his foster mother told him it might be a good idea to move to Australia to remove himself from that situation.

10. Following his arrival in [Australia], [Mr A] was able to find employment and avoid any engagement with the criminal justice system until 1993, when he was charged on two occasions with possession of cannabis.  His criminal history is as follows:

Date	Charge	Outcome
[In] Mar 1993	Possess dangerous drugs (cannabis) [in] March 1993	No conviction recorded, fined $250
[In] Jul 1993	Possess dangerous drugs (cannabis) [in] June 1993	Convicted, fined $600
[In] May 1998	Possess dangerous drugs (cannabis) [in] May 1998 Supply dangerous drugs (cannabis) between [days] May 1998 Possess thing used in commission of a crime [in] May 1998 Possess utensils, etc, [in] May 1998	Convicted, 200 hours community service, property forfeited
[In] Sep 1998	Application for revocation of community service order [in] May 1998	Fined $400
[In] Feb 2012	Possess dangerous drugs (cannabis)  [in] January 2012 Possess thing used in commission of a crime [in] January 2012 Possess utensils, etc, (methamphetamine) [in] January 2012	Convicted, fined $500
[In] Jan 2013	Assaults occasioning bodily harm [in] November 2012	Convicted, fined $1200, compensation $500
[In] Aug 2016	Possess property suspected of having been used in a connection with a drug offence (cannabis) [in] July 2016	Convicted, fined $450
[In] Dec 2016	Possess dangerous drugs (methamphetamine) [in] October 2016 Wilful damage – domestic violence offence [in] October 2016 Contravention of domestic violence order [in] October 2016	On all charges, convicted, fined $900
[In] Jul 2017	Possess dangerous drugs (methamphetamine) [in] June 2017	Convicted, fined $900
[In] Aug 2017	Unlawful use of a motor vehicle [in] August 2017 Common assault – domestic violence offence (x2) [in] August 2017	Convicted, 15 months’ probation, disqualified from driving 24 months.
[In] Dec 2017	Possess utensils, etc, [in] November 2017 Fail to take reasonable care in respect of syringe or needle [in] November 2017 Possess property suspected of having been used in connection with a drug offence [in] November 2017	Convicted, fined $800
[In] Feb 2018	Fail to stop motor vehicle [in] December 2017 Contravention of domestic violence order [in] December 2017 Wilful damage – domestic violence offence [in] December 2017 Unlawful use of motor vehicle – domestic violence offence [in] December 2017	On all charges, convicted, 6 months’ imprisonment, disqualified from driving 2 years Parole release date 13 Feb 2018

1. This is a lengthy criminal history which has increased in the frequency and seriousness of offending since 2013, and especially from 2016 to 2018.  It includes the imposition of a term of actual imprisonment and several domestic violence offences.

2. [Mr A] and gave evidence to the Tribunal of his domestic and criminal history.  He was married in 1996 and has [children], now aged [specified].  The marriage broke down in 2014 but the divorce has not yet been finalised.  Although there was a lot of conflict in the marriage, there was no physical violence.   In about 2008 or 2009 [Mr A], who at the time was working night shift, first started using methamphetamine as a means to cope with the demands of his job.

3. In about 2013 [Mr A] became acquainted with [Ms B].  They did not become a couple until his final separation from his wife in 2015.  [Ms B] has [a number of] children from previous relationships:  [some] now aged [specified], and [some] aged [specified].  [A number of] children live with her.

4. At the time [Mr A] and [Ms B] met, it seems that both were at least occasional methamphetamine users.  From shortly after the commencement of the relationship, [Mr A]’s interactions with the criminal justice system (which had been sporadic and relatively minor to this point) intensified.  It appears from the police records that a domestic violence order was made [in] June 2016.  [Mr A] was convicted of 13 drug and domestic violence offences committed between July 2016 and December 2017.  There were also two serious motor vehicle offences committed during this time associated with his drug use and domestic violence.  This series of offending only came to an end when he was incarcerated following his arrest in December 2017 and his subsequent removal into immigration detention.

5. [Mr A] and his representative made detailed submissions to the Tribunal, to which I have given careful consideration.  I have also had regard to the written submission and oral evidence of [Ms B], and to written character references and letters of support from [a number of acquaintances].  Relevant to the risks posed by [Mr A], these claim that his offending was out of character and/or was a by-product of drug use which has now ceased. 

6. [Mr A] made submissions on each of the sets of charges of which he was convicted.  He provided some background information and pointed to mitigating factors, his contrition and admissions made to the police.

7. [Ms B]’s submissions refer to his offending in a more general way.  She expanded on those submissions at the hearing and put most of the offending down to methamphetamine use.  She claims that at least one of the more serious incidents was related to a combination of [Mr A] coming down from methamphetamines and suffering a [medical] episode.  She claimed to have no concerns for her safety should [Mr A] be released into the community.

8. In assessing the risk to the community or individuals, I have weighed the objective mitigating factors against the seriousness of [Mr A]’s offending.  I consider the lengthy history of methamphetamine use to be an indicator of risk rather than treating as a mitigating factor the fact that some offences occurred under its influence. I have, however, given some weight to his claims that he has embarked on rehabilitation and has ceased his drug use while in detention.

9. [Mr A]’s representative submitted that, in relation to the November 2012 offence, there had been no previous violent offence and that he has not since been convicted of an offence of causing injury.  I have taken that submission into account.

10. In relation to the domestic violence offences, it was submitted that the majority of these involved property damage and that the common assault charges did not result in actual harm or injury.  I have taken these submissions into account, while noting that the offences are serious.

11. It was further submitted that [Mr A]’s history disclosed a propensity to cooperate with the police and that, in some cases he had made admissions before being accused or suspected of committing any offence.  This is said to be indicative of remorse.  I have taken this submission into account but am not persuaded that his conduct with police is necessarily indicative of remorse, given his record.  While it may be consistent with remorse, it is also consistent with a range of other motives including a desire to conclude the interaction with police as soon as possible and a recognition of the inevitability of the results of searches and inquiries.

12. I take into account the violent nature of the domestic violence offences, whether against property or against the person.  I give some weight to the fact that a child was the victim of an assault, whether or not actual physical contact was intended, and that children were exposed to other domestic violence offences.  I further take into account that the existence of domestic violence orders was no deterrent to contraventions.

13. Finally, I have considered the submissions by and on behalf of [Mr A] and by [Ms B] that they intend to reconcile and that [Ms B] has sought to vary the existing domestic violence order to permit [Mr A] to visit the household.  I give some weight to [Ms B]’s assessment that [Mr A] does not pose a risk to her or her children.  Against this, I must weigh the fact of his criminal history – which is objectively serious – and  his long-standing substance abuse.  This history discloses conduct that has been a risk to the health, safety and good order of the Australian community as well as to the health and safety of [Ms B] and her children.  I am satisfied on the basis of the history and [Mr A]’s demonstrated propensity to reoffend that his presence in Australia is or may be, or would or might be a risk to health safety and good order of the Australian community or segment of the community and to the health and safety of [Ms B] and her children.

14. For these reasons, the Tribunal is 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.

    Consideration of discretion

15. 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’.

    Purpose of the visa holder’s travel and stay in Australia

16. I have considered the purpose of [Mr A]’s travel and stay in Australia and whether he has a compelling need to remain in Australia.  As noted above, [Mr A] has been resident in Australia since 1986.  He has only returned to New Zealand for a period of 11 days in the last 32 years.  It is asserted on his behalf that he has generally maintained employment, married and raised [children] (who are now adults) and remains in a relationship with [Ms B] and her young children.  I give weight to these submissions.

    Extent of compliance with visa conditions

17. [Mr A]’s subclass 444 attaches no conditions.  I therefore give no weight to the issue of compliance either for or against cancellation.

    Degree of hardship that may be caused

18. I have given very careful consideration to the degree of hardship that might be caused to [Mr A] and to his family members were his visa to be cancelled.  If the visa is cancelled, [Mr A] will be required to leave Australia and return to New Zealand, where he has not lived since 1986. It was submitted on his behalf that he is likely to experience emotional hardship resulting from his separation from [Ms B], his step children and the rest of his family.  [Ms B] is likely to experience hardship as a result of his removal and, by the terms of parenting orders to which she is subject, will be unable to relocate to New Zealand.  At the hearing [Ms B] did not mention the parenting orders but gave other reasons as to why relocation would be difficult (I attach no particular significance to this omission and have taken into account the examples of hardship she described).

19. In respect of [Mr A]’s adult children, I do not consider that any particular hardship will be occasioned by his relocation to New Zealand, given the ease of communication and travel between Australia and New Zealand.  Similar considerations apply in respect of his foster family.

20. I have given some weight to the hardship said to result to [Ms B] and her children, but weight is tempered by the fact that violence has occurred in the relationship on multiple occasions, that domestic violence orders are still in place, and that [Mr A] has been unemployed and using drugs over the relatively short course of the relationship.  Some of these factors are discussed further below in respect of the best interests of children.

    The circumstances in which the ground of cancellation arose

21. It was properly conceded on behalf of the applicant that the ground of cancellation arose from his own conduct and that, to the extent that it arose from substance misuse, that substance misuse was not a matter beyond his control.  His representative submitted that his participation in drug and alcohol rehabilitation should weigh against cancellation.  Given that this occurred following being taken into custody, and the behaviour that preceded it, I give it no weight for the purposes of the discretion.  It has been given some weight in relation to the existence of the grounds for cancellation.

    Past and present behaviour towards the department

22. The delegate noted that [Mr A] displayed anger towards Australia Border Force officers, swearing and cursing at them, and that he hit a window in the interview room and kicked a chair.  [Mr A] admitted this conduct at the hearing but submitted that he was angry and surprised when he learned of the intention to consider cancelling his visa.  He says he calmed down when asked to and cooperated with the process.  Against this, I note that he refused to sign the notification of decision.  It seems unlikely that he calmed down immediately.  However, this is a single instance and I give it no weight.

23. It was submitted on [Mr A]’s behalf that he made full and frank admissions to the Tribunal and that this was indicative of a cooperative approach.  It was further submitted that his conduct toward police (see paragraph 21) was indicative of an ‘indirect’ cooperative approach to the Department and Tribunal.  I am not convinced of the merits of this submission, given the consequences of dissembling at the hearing, and treat it as neutral. 

    Any consequential cancellations under s.140

24. There are no consequential cancellations that would arise on the cancellation of [Mr A]’s visa.  No weight is given to this factor.

    Mandatory legal consequences

25. If [Mr A]’s visa is cancelled, it may result in him being detained under s.189 and removed from Australia under s.198.  He may also be subject to s.48, preventing him from applying for further visas while in Australia.  He may also be subject to PIC4013, limiting the granting of a further temporary visa for a specified period.  [Mr A] may not be permitted to work in Australia and may be held in immigration detention until his removal from Australia.  I give some weight to these consequences.  However, the weight I give them is tempered by my finding that he poses a risk to the health, safety and good order of the Australian community and to the health and safety of individuals.

    Whether any international obligations are invoked

26. On [Mr A]’s behalf it was submitted that the Tribunal should consider Articles 3 and 9 of the UN Convention on the Rights of the Child and Article 23 of the UN Convention on Civil and Political Rights in respect of the consequences for [Mr A]’s daughters and [Ms B]’s children should the visa be cancelled.

27. The application of these provisions to [Mr A]’s adult [children] was not further adumbrated.  There were no submissions from them.  I do not consider that [Mr A]’s removal to New Zealand would invoke any obligations under the international instruments.

28. I have given careful consideration to the effect of any visa cancellation on the best interests of [Ms B]’s children.  In particular, I have had regard to the submission that [Ms B]’s [child] [name] has been diagnosed with [a medical condition] and has gained a significant benefit from having [Mr A] in his life.  Her evidence is that [her child’s] behaviour has deteriorated since being separated from [Mr A].  Against this, I note that [Mr A] has been resident with [Ms B]’s children only since 2015 and that for a significant proportion of that time he has been incarcerated, detained and/or subject to domestic violence orders.  Most of the offences the subject of this application were committed while he was resident with the children.  The children also witnessed, or were subject to, domestic violence.  During this time, he was a regular user of methamphetamine.  Further, the children maintain a relationship with their biological father.  In these circumstances, I cannot find that the best interests of the children are necessarily dependent upon or furthered by [Mr A]’s continued presence.

    If a permanent visa, the applicant’s strong family, business or other ties to Australia

1. [Mr A]’s subclass 444 visa is a temporary visa, so this factor does not fall for consideration.  I have given consideration to his family ties in paragraphs 26 and 28 above.

2. Weighing the risk to the community and individuals posed by [Mr A]’s continued presence in Australia against the discretionary factors considered above, I consider that the balance favours cancellation of the visa. 

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

   DECISION

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

   James Lambie
   Senior Member