1816963 (Migration)

[2018] AATA 4307

1816963 (Migration) [2018] AATA 4307 (10 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1816963

MEMBER:James Lambie

DATE:10 September 2018

PLACE OF DECISION:  Brisbane

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 10 September 2018 at 4:03pm

CATCHWORDS
MIGRATION – Cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – risk to Australian community – extensive criminal history – escalating series of offences – upbringing – mental health history – family ties in Australia – measures to deal with addiction – availability of stable accommodation – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116

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 4 June 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)(i) on the basis that, in view of [the applicant’s] criminal history, his presence in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community. 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 19 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [the applicant’s] stepfather, [and] a [friend].  

4. 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

5. 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)(i). 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?

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

6. 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].

7. 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.

8. [The applicant] has resided in Australia since 1999, at the age of [age].  He arrived with his father, his parents having separated by that time. His childhood in Australia appears to have been particularly unsettled, attending various schools as he alternated residence between his father in [one city] and his mother and stepfather at various addresses in [another State].  He started taking drugs at [age] and was placed in rehabilitation on several occasions in his teens.  He had a mental health breakdown at about [age] and was an inpatient at a psychiatric hospital.  When he was [age], his father died and, having not seen his mother for some 7 years, he eventually moved in with her [ex-husband].  By this time, he was using marijuana, ecstasy and methamphetamine, had been homeless at various times, had a significant juvenile criminal record and had spent time in youth detention.

9. [The applicant] has a substantial adult criminal history.  Under summons, the Tribunal obtained a copy of his [court] outcomes and the police charge sheets.  These were provided to the applicant under section 359A for his response.

10. His adult criminal history is as follows:

Date	Charge	Result
[November] 2016	Commit public nuisance ([in] June 2016)	No conviction recorded, 18 months’ probation
[November] 2016	Enter premises and commit indictable offence by break ([in] April 2016) Failure to appear in accordance with undertaking ([in] July 2016) Enter premises and commit indictable offence by break (between [date] and [date] June 2016)	No conviction recorded, 18 months’ probation, $2150 total restitution
[January] 2017	Enter premises with intent to commit indictable offence ([in] October 2016) Trespass – entering or remaining in dwelling or yard ([in] October 2016) Failure to appear in accordance with undertaking ([in] November 2016)	No conviction recorded, 15 months’ probation
[February] 2017	Failure to appear in accordance with undertaking ([in] December 2016)	Convicted, 14 days’ imprisonment suspended for 6 months
[October] 2017	Failure to appear in accordance with undertaking ([in] October 2017) Failure to appear in accordance with undertaking ([in] September 2017)	Convicted, imprisoned for 2 months on each count, cumulative, suspended for 18 months
[January] 2018	Breach of orders imposed [in] October 2017	Suspended sentences extended to 3 months
[May] 2018	Enter premises and commit indictable offence x2 ([in] February 2017) Robbery ([in] February 2017) Burglary and commit indictable offence ([in] October 2017) Failure to appear in accordance with undertaking x4 Contravene direction or requirement x2 Assault or obstruct police officer x2 Unauthorised dealing with shop good ([in] August 2017) Breach of bail conditions x5 Breach of suspended sentence x3	Convicted, 17 months’ imprisonment On Magistrates Court matters heard in the District Court, convicted, 6 months’ imprisonment concurrent On failures to appear and breaches of suspended sentences:  suspended sentences fully invoked, cumulative. Released on parole [in] May 2018

1. [The applicant’s] adult criminal history covers a relatively brief period of just less than two years.  He has spent 252 days in custody.  He is now [age] years of age.

2. I asked [the applicant] to explain the circumstances of his offending.  He said that in 2016 he was trying to get his life in order but was struggling. He was associating with the wrong kind of people and using drugs and alcohol.  The public nuisance offence, he says, relates to a fight at the Gold Coast that he does not recall at all. He observed that he was so drunk that he was unlikely to harm anyone but himself and that this is probably reflected in the low grade nature of the charge and the fact that no conviction was recorded.  At around this time, he was evicted for non-payment of rent and was intermittently homeless.  He was charged on a couple of occasions with break and enter offences.  On these occasions, he said, he was looking for money to purchase drugs.  The two most serious offences, for which he was tried in the District Court are those of entering premises with intent to commit an indictable offence and robbery.  He said that the robbery related to an attempt to steal stock from a Sunglass Hut when he was interrupted by a security guard.  He made contact with the guard in his effort to escape, which escalated the offence to robbery.  The other offence related to entering a private yard at random and looking for something to steal from a car when he was apprehended by the owner.  He was homeless at the time.

3. He also sought to explain the numerous breaches of undertakings and orders.  He said that over this period, his life was hopelessly disorganised by reason of his drug addiction, medications, poverty, homelessness and psychological problems.  Often he would lose track of dates and times and it was also common for him to have no means whatever for any form of transport.  On his criminal record as a whole, he said that it does not disclose any propensity for violence and that, where his offending does involve any contact with people, his reactions have been out of fear and confusion and have not caused injury. 

4. I have considered [the applicant’s] submissions carefully and have given them some credence as consistent with the matters alleged by police.  I have also had regard to his objective record which contains two matters serious enough to be result in District Court convictions and the imposition of head sentences totalling 20 months’ imprisonment.  On balance, given what seems to be a relatively short but escalating series of offences, the applicant’s presence in Australia does pose a risk to the safety and good order of the Australian community.

5. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(i) 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

6. 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’.

7. [The applicant] has resided in Australia since arriving here at the age of [age].  All of his extended family live in Australia and, if returned to New Zealand, he says he would be on his own and without support.  The last time he visited New Zealand was in 2007, when he was [age] years old.  His addiction and psychological problems arose from his unsettled upbringing in Australia but he is now receiving assistance and for this he relies on family support.  I give this matter some weight in his favour.

8. [The applicant’s] subclass 444 visa has no conditions attached to it.  No weight either way is applied in respect of visa compliance.

9. I have given careful consideration to the degree of hardship that may be caused by the cancellation of [the applicant’s] visa.  He has no partner or children to whom hardship might be occasioned.  However, [the applicant], according to the evidence of his stepfather and friend, is making good progress towards dealing with his psychological and substance abuse problems.  On [the applicant’s] evidence, he has not used any drugs since November 2017.  His stepfather is able to offer stable accommodation and a job and believes that with that stability and support he should stay out of trouble.  Given the likelihood that [the applicant’s] offending has been closely connected to his psychiatric or psychological condition and what appears to have been a turbulent upbringing, in my view any support he can receive from his family is very important.  I give this factor some weight in [the applicant’s] favour.

10. While I have little doubt that [the applicant’s] subjective circumstances contributed to his propensity to offend, I do not think it can be said that his criminal record arose from circumstances beyond his control.  There is no medical or other expert evidence before me to support such a conclusion.  Accordingly, I do not give this factor any weight.

11. The delegate gave some weight to the fact that [the applicant] had not been uncooperative or untruthful in his dealings with the Department.  To this I would add that [the applicant’s] evidence to the Tribunal impressed me as truthful and he seemed genuine in his remorse for his actions.

12. There are no consequential cancellations that would arise as a result of the cancellation of [the applicant’s] visa, nor are there any international obligations that would arise.  No weight is given to these factors.

13. I have given some weight in [the applicant’s] favour to the legal consequences of cancellation, including the possibility of detention and the obstacles that may arise to making a valid visa application.

14. I have given careful consideration to [the applicant’s] family ties to Australia and to the absence of close family or friends in New Zealand.  This forms part of my reasoning in paragraph 19 and I accord some weight to it in his favour.

15. In considering this matter, I have carefully considered the nature and extent of [the applicant’s] criminal behaviour and have concluded that it does constitute grounds for cancellation.  Against this I have weighed [the applicant’s] subjective factors, including his upbringing, mental health history, measures to deal with addiction, ties to Australia and the hardship he would encounter were his visa to be cancelled.  On balance, the considerations against cancellation very slightly prevail.  It is, however, unlikely that this conclusion would survive any further criminal offending.

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

    DECISION

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

    James Lambie
    Senior Member