1818183 (Migration)

[2018] AATA 4384

1818183 (Migration) [2018] AATA 4384 (28 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1818183

MEMBER:Ann Duffield

DATE:28 August 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 28 August 2018 at 10:36am

CATCHWORDS

MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – risk to the health and safety of an individual – domestic violence and drug use charges – breach of a domestic violence order – charges not yet heard in court – strict bail conditions – partner’s children unable to depart Australia – 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 s378 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 28 May 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)(ii) on the basis of the applicant’s criminal record, in particular domestic violence offences against his ex-partner. 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 27 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, [named].

4. The applicant was represented in relation to the review by his registered migration agent who was also present at the Tribunal hearing.

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

   BACKGROUND

6. The applicant is a citizen of New Zealand born on [date] ([age] years old). He arrived in Australia with his mother and siblings in March 2001 when he was [age] years old. He claims to have been ordinarily resident in Australia since that time.

7. On 20 April 2018 the Department of Home Affairs (DHA) sent the applicant a notice of intention to consider cancelling his visa on the basis of his past and present criminal convictions and charges which relate to domestic violence and drug use. He responded on 7 May 2018 and his visa was cancelled on 28 May 2018. The applicant was subsequently detained on 22 June 2018 by DHA at [a facility] where he remains.

8. The applicant was granted bail by the [specified court] in relation to outstanding charges [in] April 2018.

9. The applicant has two minor children, born in Australia. His [Child A] born on [date] to [Ms A] and [Child B] born on [date] to his current partner [named], as well as his mother and siblings.

10. The domestic violence convictions in 2010 were in relation to his ex-partner, [Ms A].

11. The applicants current domestic violence related charges are in relation to his ex-partner, [Ms B] whom he met in around 2014. They began living together in early 2015 and became engaged in October 2016. They subsequently separated in February 2017 and [Ms B] took out a domestic violence order [in] March 2017.

12. The applicant met his current partner, [Ms C] in around March 2017 and is also the stepfather to her [eldest children] aged [ages]. They have a child together born on [date].

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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.

14. S.116(1)(e)(ii) provides that the Minister may cancel a visa if he or she is satisfied that the presence of its holder in Australia is or may be, or would or might be, a risk to the health and safety of an individual or individuals.

15. In the present case, that risk was found to exist in relation to the applicant’s ex-partner, [Ms B], the victim in the current domestic violence related offences, as well as other individuals in relation to the applicant’s drug abuse.

    Does the ground for cancellation exist?

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

16. 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].

17. 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.

18. On 2 July 2018 the Tribunal summonsed the applicant’s person history and criminal history from the [relevant police agency]. Those documents were sent to the Tribunal on 3 July 2018 and the Tribunal forwarded them to the applicant informing him that depending upon his response, those matters would form a reason, or part of the reason for affirming the decision under review.

19. Those matters included that the applicant has been charged and plead guilty to the following offences:

    a.Breach of a domestic violence order [in] March 2010

    b.Breach of a domestic violence order [in] July 2010

    c.Contravention of a domestic violence order [in] August 2017

    d.Contravention of a domestic violence order between [dates in] August 2017 and [September] 2017

    e.Driving while relevant drug is present in blood or saliva [in] October 2017 and

    f.Driving while relevant drug is present in blood or saliva [in] March 2018.

20. Additionally, the applicant is facing court on the following charges:

    a.Unlawful stalking occurring between [dates in] September 2017 and [February] 2018; and

    b.Contravention of domestic violence order between [those two dates].

21. The domestic violence related offences in 2010 were against his former partner, [Ms A] (the mother of his [Child A]). The 2017-2018 offences are in relation to his ex-partner [Ms B].

22. The applicant responded to the Tribunal’s request and provided a personal statement and a statement from his partner, [Ms C]. He also provided 8 statements of support from friends and family, a letter from [an agency] confirming his completion of [relevant] programs during his detention, a statement from [Agency 1] confirming his engagement with their services and some photographs of himself together with his partner and their children. Through his agents, the applicant stated the following:

    a.He intends to defend the charges as he is not guilty.

    b.His case will not be heard in court until 2019 and he is confident that the charges will be dropped.

    c.The allegations were made by a jealous ex-partner and only lodged after the birth of his [youngest child] ([date]).

    d.The Tribunal should not make any adverse inference against the applicant for his unwillingness to give evidence to the Tribunal about his current charges. The applicant states that giving evidence to the Tribunal on the charges he faces would or could prejudice his case.

    e.The Tribunal should not accept the contents of the court briefs as true, but rather observations made by the police. They cannot be considered as true evidence because those observations have not been tested in a court. The applicant submits he has a significant amount of evidence disputing those observations.

    f.The Tribunal should consider the fact that the applicant’s visa can be cancelled again if he is convicted of the crimes he has been charged with.

    g.The applicant has had no convictions recorded as a result of his previous domestic violence related and drug related offences.

    h.The applicant’s drug taking was limited to a short period of time between around October 2017 and March 2018. He has not taken drugs since that time and has never engaged in supplying or trafficking.

    i.The applicant has participated in drug rehabilitation counselling and programs and considers himself free of the stresses that led to his drug use in the past.

    j.His domestic violence offences in 2017 were in relation to breaches of a domestic violence order which was police initiated and related to violence against the applicant by [Ms B]. The order was also applied to [Ms B].

    k.The breaches in 2010 and 2017 were in relation to verbal contact between the applicant and his accusers and no physical violence on his part was involved.

    l.Strict bail conditions imposed on the applicant until the outstanding charges are dealt with provide significant and meaningful incentive for the applicant to avoid engaging in any further criminal conduct.

    m.The risk to any individual or individuals if the applicant’s visa is not cancelled is extremely low.

    n.Significant hardship would be caused to his current partner and two Australian born children.

    o.The applicant has no family in New Zealand and has not resided there since he was [age] years old.

    p.If the applicant is removed from Australia as a result of the cancellation he will find it almost impossible to return to Australia to visit his family if they do not return with him to New Zealand.

    Tribunal hearing

23. The applicant and [Ms C] re-iterated and developed these arguments in the applicant’s defence during the hearing.

24. The applicant did not deny pleading guilty to his domestic violence breaches but told the Tribunal that he had no legal advice at the time. He claims that he was told by the duty officer at the court to plead guilty as it would not have any great consequences. He said that his breach of the orders related to phone or email contact and not any physical violence. He says that no convictions were recorded as a result of these breaches and he was fined. This was also the case with his drug convictions.

25. The applicant told the Tribunal that he did not consider himself a heavy drug user. He said that he took ICE around once a week or fortnight when he was with friends. He claims these friends provided him with ICE and he never sought it out. [Ms C] also told the Tribunal that the applicant did not appear to her to be a heavy user and she only found out in February 2018 that he used ICE. She did not suspect anything as his behaviour seemed normal around her.

26. The Tribunal pointed out to the applicant that the current charges he was facing were in a different order of seriousness than his previous offences. The applicant vigorously denied the charges and told the Tribunal that [Ms B] was acting out of jealousy that he had moved on with his life and had a child with [Ms C]. He said that she only made the charges after the baby was born.

27. The applicant told the Tribunal that he had been clean since February and had not used drugs since then. The Tribunal pointed out to him that he had been incarcerated either in jail or detention for the best part of the year and was only in the community for 8 weeks or so between the time he was released on bail and the time he was taken into detention.

28. The applicant told the Tribunal that he was subject to strict bail conditions. The Tribunal put to the applicant that the strictness of the conditions reflected the seriousness of the crimes of which he is accused. The applicant claimed that he was told at the time to ask for all and any conditions to be placed on his bail as he would rather be outside than remain incarcerated. He claims that the judge did not impose those conditions other than at his request.

29. The Tribunal sought a copy of the applicant’s bail conditions which he provided after the hearing. Those conditions include the following:

    a.The applicant not leave [his state of residence] without prior written consent of the office of the DPP

    b.The applicant reside at a named address

    c.The applicant not be absent from the approved bail address between the hours of 9pm and 6am without the prior written consent of the DPP

    d.The applicant report twice a week to the [Town 1] Police Station

    e.The applicant not use or possess any illegal drugs

    f.The applicant submit to drug screening

    g.The applicant attend [Agency 1] and provide a report from [Agency 1] that he has successfully completed their residential program

    h.The applicant must not access the internet whatsoever for any purpose other than for banking purposes

    i.The applicant must not possess or use a mobile telephone

    j.The applicant must obtain a mental health assessment and if referred to a psychologist for further treatment, the applicant must comply with this treatment.

    k.The applicant must have no contact, directly or indirectly, with [Ms B] or any other prosecution witnesses.

    l.The applicant must adhere to the requirements of any Domestic Violence Order naming his as the respondent.

30. The Tribunal noted that it was not a judge and it was not its job to decide whether he was innocent or guilty of the current charges. The Tribunal noted that it was able to make a finding that there were grounds to cancel his visa on the basis of charges alone. The Tribunal put to the applicant that it was hard to move past the fact that he had pled guilty and been charged with drug and domestic violence related offences, even if those convictions were at the lower end of the scale. The Tribunal noted that he appeared to be a recidivist in relation to the domestic violence offences and did not appear to be able to abide by orders.

31. The applicant told the Tribunal that the breaches were verbal or electronic in nature and also consensual or initiated by [Ms B]. He said that he had abided by his bail conditions whilst he was out of jail. The Tribunal put to him that he was only in the community and subject to those conditions for around 8 weeks and it was unclear to the Tribunal why he would continue to abide by them in the future if he had not in the past. The applicant claimed that he had significant incentive to abide by the conditions. He said that if he didn’t he would be back in jail and there would be no prospect at all of him remaining in Australia with his partner and children.

32. The applicant told the Tribunal that he now had a stable family life with [Ms C] and their children and previous stresses and strains of being in a bad relationship no longer existed. He said he just wanted to be with them and build a life together. The Tribunal discussed with the parties their future plans and current arrangements and is satisfied that the relationship between them appears to be genuine and that they consider the relationship to be a long term one. They plan to marry towards the end of the year.

33. The applicant told the Tribunal that if he were required to go to New Zealand, [Ms C] and their [child] would come with him. [Ms C] gave emotional and compelling evidence that she would be forced to leave her [elder children] if she went to New Zealand. She told the Tribunal that she and her ex-husband had the children every other week and the arrangement was amicable and good. She claimed that her ex-husband and the applicant had a good relationship and there was no tension amongst them. She said that despite this, her ex-husband would not agree to the children going to New Zealand and she could not expect him to part with his children.

34. The applicant said that he was not guilty of the charges and would prove that in court. The applicant’s adviser put to the Tribunal that even if he was found guilty of the charges, which was a remote chance, the DHA could move to cancel the applicant’s visa again at that time.

35. Both the applicant and [Ms C] told the Tribunal that they would live together with [Ms C’s] parents in [named town] until they found a property together further out of [Town 1] and closer to [another town]. The applicant claimed that he could return to his previous employment and [Ms C] wanted to return to her [studies]. [Ms C] told the Tribunal that she was the beneficiary of her grandmother’s estate and was also supported by her parents. Both told the Tribunal that they didn’t want to have anything to do with [Ms B] and that the applicant did not pose a risk to her or anyone else.

36. The Tribunal has carefully considered these matters and accepts the applicant’s arguments that his presence in the community poses no risk to [Ms B] or to anyone else. The Tribunal accepts that the applicant is subject to strict bail conditions which, interalia, prevent him from seeing or contacting [Ms B] in any way. The Tribunal accepts that the applicant is strongly motivated not to breach his bail conditions in any way as doing so would result in his immediate incarceration and cancellation of his visa.

37. The Tribunal accepts the applicant’s submissions that the strict bail conditions were not imposed as a reflection of the seriousness of the charges he is facing but were made on his request and on advice. The Tribunal is of the mind that the nature of the conditions will ensure the applicant is not a risk to [Ms B] or anyone else.

38. The Tribunal also accepts that his previous convictions, whilst serious, are at the lower end of the scale of offences and that the applicant is strongly motivated not to resume his social drug habit. The Tribunal accepts that the applicant has attended and completed some relevant courses and that he recognises the stressors that may result in his relapse.

39. The Tribunal also notes that the time between now and the hearing and finalisation of his case is approximately 12 months away and that this is a significant period for the applicant to abide by the terms of his bail. The Tribunal also notes that it is open to the department to cancel his visa again at any time in the future if the applicant breaches his bail conditions or is found guilty of the offences for which he has been charged.

40. In the Tribunal’s mind, this matter is finely balanced. If the applicant’s previous breaches of his domestic violence orders involved any physical violence, or if he were involved in the distribution of drugs, there would be no question in the Tribunal’s mind about cancelling his visa. The Tribunal is also mindful that the charges he is facing are serious and including stalking. However, having weighed these matters individually and cumulatively, And taking into account the totality fo the applicant’s circumstances, the Tribunal is not satisfied that the applicant poses a risk to an individual or individuals in the Australian community.

41. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(e)(ii) exists. It follows that the power to cancel the applicant’s visa does not arise. decision

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

   Ann Duffield
   Senior Member