1819784 (Migration)

[2019] AATA 4202

1819784 (Migration) [2019] AATA 4202 (18 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1819784

MEMBER:Rachel Westaway

DATE:18 February 2019

PLACE OF DECISION:  Melbourne

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 18 February 2019 at 12:45pm

CATCHWORDS

MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – risk to the health and safety of an individual – family violence and firearms charges – access to Australian citizen child – developing a meaningful relationship with the child – no home or assets in New Zealand – impact a three year bar on entering Australia – decision under review set aside     

LEGISLATION

Migration Act 1958, 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 2 July 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 that the delegate found that the presence of the applicant in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals.

3. The applicant was charged on [a date in] May 2018 with 5 offences relating to an incident which allegedly occurred that day. The charges were:

   • Threaten to Kill

   • Common Assault in Circumstances of Aggravation or Racial Aggravation

   • Criminal Damage or Destruction of Property

   • Unlicensed Person Possess Firearm

   • Unlicensed Person Possess Ammunition.

4. [In] December 2018 the [relevant state] sought to discontinue the “Threaten to Kill charge” arising out of the [May] 2018 incident (R4, transcript of Magistrates Court proceedings [in] December 2018) as a result of which that charge was dismissed for want of prosecution (Tribunal file ff. 193). The Director of Public Prosecutions advised by letter dated [in] January 2019 that the State discontinued the charge because “[a]fter an assessment of the materials provided by police, the State considered that there were no reasonable prospects of conviction in relation to that charge” (Tribunal file ff.220).

5. [In] January 2019 the Applicant pleaded guilty to the “unlicensed person possess firearm” charge and the “unlicensed person possess ammunition” charge.

6. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

7. The applicant appeared before the Tribunal via video on 18 August 2018 to give evidence and present arguments.

8. The applicant was represented in relation to the review by his registered migration agent. The applicant’s mother and father also gave oral evidence.

9. 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

10. 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) which states that the presence of the applicant in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals. 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

11. 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].

12. 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.

    Background and applicant’s oral evidence pertaining to the charges

13. On 5 December 2016 the Applicant was granted a Class TY subclass 444 Special Category visa. [In] October 2017 the Applicant was convicted of damaging property. He was fined $200.00, ordered to pay $188.00 in costs and granted a spent conviction. In [early] 2018 the Applicant’s daughter was born to his former partner. On 2 July 2018 the Applicant’s subclass 444 Special Category visa was cancelled under s 116(1)(e)(ii) of the Act on the basis of the offences that the Applicant was charged with [in] May 2018. On 3 July 2018 the Applicant lodged an application for the Bridging visa. On 6 July 2018 the Applicant sought review of the decision to cancel his subclass 444 Special Category visa which is the matter currently under review. On 26 November 2018 the delegate refused to grant the Applicant the Bridging visa under s 501(1) of the Act (R2, G11). On 27 November 2018 the Applicant applied for review of this decision which was set aside by the Tribunal on 15 February 2019 (Tribunal file ff. 212-222).

14. The applicant is a citizen of New Zealand born on [date] and is [age] years of age. He initially came to Australia when he was [age] years of age. He stayed in Australia for four years and returned to New Zealand at the age of [age]. He then returned to Australia at the age of [age] with his parents and has remained in Australia for the last five years returning once for a 6-8 week visit. He returned to clean up the family homestead. The person living there was sick and couldn’t attend to maintenance around the house.

15. He claims that his family came to Australia for employment opportunities. His father was a [specified occupation] and his mum [another occupation]. He stated that returned to New Zealand the first time because his Mother wanted to be with her sister and his grandparents were getting old.

16. He said that in the time following their return to New Zealand his [specified relatives] were diagnosed with cancer and died and his Grandmother also passed away.

17. Following the loss of most of their close and immediate family they chose to return to Australia and make a new life. The applicant has [specified siblings]. The applicant lives in Australia and [a] brother lives in New Zealand.

18. In applying for review of the decision to cancel his visa, the applicant supplied a copy of the delegate’s decision (Tribunal file ff1-9). The decision outlined that the [specified police service] provided a copy of the Statements of Material Facts which have been served to the visa holder in relation to circumstances around these alleged offences. It summarised that the applicant was in a de facto relationship and have a [child].

19. Between 7:30pm and 8:30 pm on [the date in] May 2018 the applicant and his then partner were at home eating dinner. The applicant was claimed to have challenged his partner over her diet which resulted in a verbal argument. During the argument the alleged victim, his then partner commented on the applicant’s upbringing which angered him and he smashed a bowl on the floor. He then said “this is done” and began to pack his clothes and belongings and put them into the car. It is alleged he took the baby from his partner and began to pack up the baby’s belongings as well. His partner was claimed to have said that he was not taking the baby and stood in front of the door preventing him from leaving.

20. It is claimed he pushed her aside causing a [specified injury]. It is then alleged that she remained by the door as the applicant went into the master bedroom and removed a black double-barrel shotgun from the floor beside the bed and walked up to his partner whilst holding the baby, and placed the barrel of the shotgun to the complainant’s forehead. He said “if you don’t move I will shoot you”. It is then claimed that he told her it was loaded but then lowered it to the floor. It is then alleged that the alleged victim walked past the visa holder and told him she was going to ring his mother.

21. She rang the applicant’s mother using her mobile phone. It is alleged the applicant followed her into the kitchen and grabbed the phone from her, threw her phone on the ground causing it to come out of its case, then threw it at the floor a second time causing the screen to smash. The baby began to cry and the alleged victim grabbed the baby from him.

22. The applicant went into the master bedroom and wrapped the shotgun in a blanket and put it into the car then left in the car. It is alleged he returned after a short time and began to clean up the smashed bowl. His mother arrived a short time later and arranged for police to be contacted. [Police] officers attended the applicant’s house at 9:00 pm, arrested him and a subsequent search located a 12 gauge double barrel shotgun in the rear of a vehicle parked in the garage. The applicant was not licensed to possess this firearm or any firearm.

23. [The police] have advised that the applicant is currently on bail pending his next court date, a Family Violence Restraining Order has been issued protecting the alleged victim from him, and the court has issued protective bail conditions preventing him from attempting to contact or approach her.

24. [The police] have determined there is sufficient evidence to support charging the visa holder with the 5 offences detailed earlier and issuing a Family Violence Restraining Order protecting the complainant from him. The courts have determined it necessary to put orders in place to mitigate any risk he may pose to his former partner.

25. The applicant confirmed with the Tribunal that the incident on [the date in] May 2018 led to the charges he now faces. He stated that it involved a domestic dispute between the applicant and his then partner. He said that the police have never been called to his home before.

26. He was asked if he has ever faced charges before and he stated that he was convicted of one charge. He said that he did not serve any time and was given a $250 fine. He explained that it was regarding damage to the rim of a car wheel which he scratched. He explained that the car belonged to the applicant’s ex-partner and he confirmed that this occurred in Australia and he received a spent conviction.

27. He stated that he accepted that he was in possession of an unregistered fire arm but stated that he did not threaten his former partner and disagreed that the events as outlined above occurred in the manner in which they were presented.

28. The nature of the charges indicates aggressive and threatening behaviour towards another individual. The claimed possession of an unlicensed firearm and ammunition indicates the applicant has the potential to carry out his claimed threat to harm the applicant. The mere possession of an unlicensed firearm indicates poor judgement which whether intentionally or not may have seen the firearm discharged during the alleged incident or at another time.

29. Whilst the Tribunal acknowledges it is not its role to access the merits of the criminal matter, it relies on the charges given that the [Police] have issued a Family Violence Restraining Order and found sufficient evidence to charge the applicant. The Tribunal explained to the applicant that the bench mark for making a finding that the applicant may pose a risk to the safety of his ex-partner is low based on the use of the word ‘may’. It is not definitive but rather the Tribunal must weigh up the evidence before it to determine the possibility. Given the applicant has confirmed that he was in possession of an unlicensed fire arm in itself indicates poor judgment and a disregard for Australian laws.

30. The applicant, through his migration agent provided the Tribunal with a copy of the favourable decision provided by the Tribunal in relations to the review of the applicant’s bridging visa refusal. (Tribunal file ff.212-223). Noted within this is the statement that the applicant claims the gun was not his but it belonged to a friend. At no point in time did the applicant provide this explanation to the Tribunal pertaining to the review of his substantive visa, but rather stated that he did not have time to get the gun registered.

31. The existence of a restraining order and charges pending his court case indicate [Police] believed that there was a reasonable chance of a conviction based on the evidence they had at hand.

32. From the above evidence it appears the visa holder’s continued presence in Australia may pose a risk to the safety of an individual or individuals, specifically his ex-partner. Therefore it appears grounds for cancellation of his visa exists under subparagraph 116(1)(e)(ii) of the Act.

33. 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

34. 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’.

    the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

35. The applicant explained that he considers Australia home and that the vast majority of his life has been spent in Australia. Throughout the hearing the applicant and his parents explained that they came to Australia to make a better life.

36. He stated that he has a daughter who at the time of the hearing was [of specified] age. She is an Australian citizen and lives with her mother. He explained that if his visa was cancelled he would not be in a position to see her or be a part of her life and he explained that in order to be present in his daughter’s life, he has a compelling need to remain in Australia.  He explained that he is estranged from her mother and has attempted to remain in contact in order to see his daughter but the mother will not assist. It has been made more difficult due to the fact he has been in detention.

37. The applicant provided an email from his mother which detailed the weekly video calls they make to their granddaughter and son to enable the applicant to see his daughter (Tribunal file ff. 205).

38. Oral evidence was provided by the applicant’s parents who confirmed they have attempted to try and see the infant but her mother has made such contact difficult.

39. The applicant stated that if he were to be sent to New Zealand and not permitted to remain in Australia he would lose contact with his daughter as she is so young she would not have the ability to make her own choices. Furthermore it was to put to the Tribunal that her Mother would not assist in enabling this to occur.

40. The applicant put to the Tribunal that it was unreasonable to rely on the alleged circumstances based on the charges because he did not agree with the charges and whilst he accepted he was in possession of an unregistered fire arm, he disputes the other charges and they are yet to be proven.

41. The applicant stated he has a compelling need to remain in Australia in order to remain in contact with his daughter.

42. The Tribunal places a significant amount of weight on the need for the applicant to be in regular contact with his daughter especially as she is in her infancy. The Tribunal acknowledges that a visa cancellation would prevent the applicant from developing a meaningful relationship with his young daughter. 

    the extent of compliance with visa conditions

43. There is nothing before the Tribunal to indicate that the applicant has not complied with conditions on his visa which is the subject of this review.

    degree of hardship that may be caused (financial, psychological, emotional or other hardship)

44. If the visa is cancelled the applicant has stated that he will face significant hardship on numerous levels. He explained that he will be separated from his newborn daughter and be prevented from establishing a relationship with her. The applicant’s child resides with her Mother and to date the mother has provided limited access to the applicant’s own parents to visit their grandchild. He stated that his former partner has refused to take the child to the detention centre for visits. He stated that if the visa is cancelled she will not assist in enabling him to develop a relationship with the child and will use his location as an excuse.

45. He stated that if he must return to New Zealand he has no close family or friends and that whilst he confirmed his brother is in New Zealand he stated that he has little contact with him. He explained that if he needed to, he could live with his brother temporarily however he claims to speak to his brother once every three months and they are not close. He explained that beside one visit to sort out a property issue for his family he has not gone back because everything he has and needed is in Australia. The applicant explained that his immediate family live in Australia. He stated that his parents are still in Australia and his [other specified relatives] remain in Australia.

46. He stated he has no home and no assets in New Zealand. He put to the Tribunal that he does not have a bank account in New Zealand and he considers Australia home. He claims he owns assets in Australia. He has a motorcycle, a car and an investment home in Australia. He has owned his home for four years. He owns it with his parents.

47. He also stated that he will face significant financial hardship as he has been working in a trade as [an occupation in specified location].  He has a permanent roster of [specified schedule]. He has maintained this schedule for two years and he has been in the [specified] industry for four years. He stated that he is currently employed and he would lose his job if his visa is cancelled. He also stated that he has a working ticket in Australia which is recognition for his skills and this is not recognised in New Zealand. Accreditation. He would need to retest his trade in NZ and start from scratch because his qualifications would not be recognised or be considered valid.

48. The Tribunal acknowledges that a cancellation of the applicant’s visa would have a significant impact on him given the limited ties he has with New Zealand and the fact that he has spent the most part of his adult life in Australia. The Tribunal is also mindful of the serious nature of the offences. The Tribunal has considered that the most serious charge of threaten to kill has been dismissed. In weighing up the charges and the hardship a cancellation would have on this applicant, the Tribunal gives more weight in favour of not cancelling the visa.

    Circumstances in which ground for cancellation arose.

1. The applicant stated that the police have never been called to his home for a domestic dispute. Prior to the incident, the applicant explained that he lived ten minutes away from his parents with his partner and their child. He would see his parents on a daily bases and visits would occur at both homes. His parents work. He also said that his sister lives close by and they would see her daily as well. He said that his family had a good relationship with his partner. He said they did not have many arguments and the relationship was good.

2. He confirmed that he has a fire arm but never held it to anyone’s head. He stated that he had a licence in New Zealand but not in Australia. He said he has always been a hunter gather and his friends hunt and [Ms A] his former partner knew the gun was there and they just hadn’t sorted it out in regards to the licence. He attempted to go to a club to register the firearm but every time he went it was closed and his work schedule was hard in regards to his availability.

3. The applicant’s father gave evidence and stated that his son is shy and the circumstances are terrifying and he is quite certain his son did not threaten his partner and nothing and if the visa is cancelled and he is barred from applying for a visa for 3-4 years then such a separation is terrifying and damaging for the child. He said what happens next? He does not think the mother will take the child to New Zealand and his son has been working [number] hours a day in harsh conditions which shows his strong commitment to his family. There is a small child who should be considered as the main person affected by a cancellation and separation from her father.

4. The applicant’s mother said that her son’s visa should not be cancelled. She said she was there at the time of the incident and arrived not long after.  She explained that she received a pocket call from the applicant’s former partner yelling at her son. She asked her husband to see what is happening. It was a random around 7.30. They live 10 minutes away. Her husband entered and then his mother arrived and they saw some shattered glass on the ground and [Ms A] was in the kitchen and putting the jug on for the baby and she talked to [Ms A] and asked if she was ok. She said that this was 8.30-8.45pm and everything was fine. Then they received a call from their son at 11pm to say he was in custody.

5. She stated that her son has changed his life to have a fuller work roster of two weeks on and two weeks off to provide for them and pay for everything and then to help for a full two weeks with the baby. She said that a three year bar from applying for a visa to return would be drastic and financially it would be draining. They came to Australia to make a better life for him. She said that her granddaughter was a blessing. She has seen her once and it was for 2 minutes and since the arrest she hasn’t seen her since. The applicant’s sister has tried to contact [Ms A]. All contact has stopped. [Ms A] doesn’t answer her calls. Her calls are ignored when they ring. The applicant’s mother said that she use to babysit on Mondays and she would be dropped off however after the arrest [Ms A] made it hard and after trying a few times they gave up because she was made to feel uncomfortable and decided not to keep calling.

6. She said that her son wants to remain in Australia and provide for his daughter and be a dad. He is a hard worker and good provider for his family and they previously had a good relationship. He has never had any aggression issues at work and he works in a pressured environment.  He is good with his work colleagues and he is climbing the ladder at work. She stated that he has learnt from the experience and it has scared him.

7. The Tribunal has considered the charges and the most serious charge, threatening to kill his former partner. The applicant denied this and the charge relating to that claimed threat was withdrawn by the police in December 2018 on the basis that there was “no reasonable prospects of conviction in relation to that charge”.

8. At this point in time the applicant’s alleged actions are yet to be tested in court and he faces charges with the serious charge of threatening to kill his former partner dismissed. The Tribunal notes that the applicant’s criminal matter is due to be heard on [a date in] March 2019.

9. The applicant’s bridging visa appeal was remitted back to the Department which if granted will enabled him to live in the community lawfully until his criminal matter is decided.

10. The Tribunal has considered the circumstances pertaining to the cancellation.  It is not the role of the Tribunal to determine the matter pertaining to the existing charges but rather to consider them in relation to the impact of a cancellation. The Tribunal considers the charges that remain to be serious; common assault in circumstances of aggravation or racial aggravation, criminal damage or destruction of property and charges of possessing an unlicensed firearm and ammunition. The Tribunal gives some weight to cancelling the visa based on the seriousness of these charges because it is conduct which suggests that the applicant does not respect the law in Australia and other people’s rights.

    Summary

11. The Tribunal has considered the charges currently before the applicant and notes that the most serious charge of threatening to kill the applicant’s former partner was dismissed. The Tribunal also notes that the applicant has not been convicted as this stage but has pleaded guilty to the charges of possessing an unlicensed firearm and ammunition. Whilst the charges and the applicant’s plea of guilty to two charges is considered by the Tribunal to be serious, the Tribunal has considered the impact a cancellation will have on the applicant and his Australian citizen child. The Tribunal places significant weight on the impact a three year bar would have on the applicant. He would not be able to apply for a visa to return to Australia to see his daughter. The Tribunal also places significant weight on the applicant’s willingness to provide for his daughter financially and notes that a visa cancellation would impact on the applicant’s ability to earn money in the short term as he would need to re-register and obtain a New Zealand certificate to practice his trade. The Tribunal has also considered the hardship faced by the applicant and his immediate family who are for the most part in Australia and would have limited contact with the applicant if he was required to return to New Zealand. The Tribunal places some weight on the fact that the applicant has been able to demonstrate that his former partner would not support any form of contact between him and his daughter and a visa cancellation would only act as a further obstacle in fostering a caring and healthy relationship between the applicant and his daughter. Furthermore the Tribunal notes that the applicant has also been able to demonstrate that he has very limited ties with New Zealand and this would add to the hardship he would face if his visa was cancelled. 

12. Given the significant impact on the applicant and his relationship with his daughter should the visa be cancelled, and the fact that the criminal proceedings are yet to be finalised, the Tribunal has considered the circumstances as a whole and the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Rachel Westaway
    Senior Member