1827629 (Migration) - [2019] AATA 6117

1827629 (Migration) [2019] AATA 6117 (14 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1827629
MEMBER:Brenton Illingworth
DATE:14 June 2019
PLACE OF DECISION: Adelaide
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 14 June 2019 at 3:12pm

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) – Subclass 444 (Special Category) – criminal conduct – risk to community – various convictions – one outstanding – low risk of drug use in future – healthy general appearance – removed from negative influences – abstained from taking drugs – positive support available – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth),
CASES

Gong v MIBP [2016] FCCA 561
Newell v MIMA [1999] FCA 1624
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

This is an application for review of a decision dated 12 September 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).
The delegate cancelled the visa under s.116(1)(e)(i) of the Act on the basis that the presence of the Applicant in Australia may be a risk to the safety of the community give the serious, violent, and apparently escalating nature of the Applicant’s alleged offending. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The Applicant appeared before the Tribunal on 18 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A].
The Applicant was represented in relation to the review by his registered migration agent. The representative and the Applicant attended the Tribunal hearing by video link.
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
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) of the Act. 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?
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].
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.
Introduction
On 25 February 2012, the Applicant was granted a Subclass 444 (Special Category) visa.
The Department was subsequently advised that, [in] July 2018, the Applicant was charged with the following offences by [State 1] Police:
(a)Contravene Term of Intervention Order – Other than the Programs;
(b)Fail to Comply with Bail Agreement;
(c)Commit Assault Aggravated Other by Use of Offensive Weapon;
(d)Engage in Sexual Intercourse with a Person Without Consent;
(e)Compel Person to Sexually Self-Manipulate;
(f)Commit an Assault that Causes Harm; and
(g)Dishonestly Take Property Without Consent.
Paragraph 10(a) relates to an alleged attempt to communicate with the Applicant’s former partner ([Ms A]) through her mother, in contravention of an intervention order. Paragraph 10(b) relates to an alleged non-compliance with a residential condition of a bail agreement. Paragraphs 10(c) – (e) relate to alleged offending committed against [Ms A] on [date]. Paragraph 10(f) relates to an alleged threat made with a [weapon] during an incident of road rage between the Applicant and another motor vehicle driver, and Paragraph 10 (g), dishonesty take property without consent, however the material before the Tribunal provides no detail in respect of that alleged offence and the Decision of the Minister does not refer to the allegations giving rise to that alleged offence.
On 28 August 2018, the Applicant was sent and he acknowledged receipt of a Notice of Intention to Consider Cancellation (NOICC) under s.116 of the Act which put the Applicant on notice that the Department had been advised of the above alleged offences and that grounds for cancellation of his visa may exist. Further, the Department referred to two convictions dated [2009] for driving unregistered and uninsured motor vehicle, and two convictions [in] 2016 for driving without due care and unauthorised driving of a motor vehicle. The Department decided that, given the seriousness of the alleged offending and apparent escalation in offending, it appeared the Applicant’s presence in Australia may be a risk to the safety of the community. The Applicant was invited to comment and show why grounds for cancellation did not exist. The Applicant did not respond to the NOICCs.
On 12 September 2018, an authorised delegate of the Department cancelled the Applicant’s visa. The Applicant has applied to the Tribunal for a review of that decision.
Background
The Applicant was born in New Zealand on [date] and lived in New Zealand until he migrated to Australia in 2004, on or about his [number] birthday. The Applicant completed his education in New Zealand and worked for a [Industry 1] company. He also played [Sport 1].
When arriving in Australia, the Applicant did not really know anyone and resided at backpackers’ accommodation. He introduced himself to a suburban [Sport 1] club where he continued to play [Sport 1], socialise and engage in club activities.
The Applicant obtained employment in [Industry 2], which in particular involved [specified work] for [a named organisation] and also [other tasks]. He remained in that employment for approximately nine months and then accepted a position working for a member of the [Sport 1] club in [Industry 3] where he worked for two years. He then accepted employment with another [Industry 1] company and subsequently started his own [Industry 1] business which was engaged in [a specific field]. The Applicant ran that business for three years but, following the global financial crisis, he ceased trading in about 2010 or 2011.
The Applicant then accepted a position working in [Industry 4 in State 2] and [State 3]. He remained in that employment for approximately two years and then accepted a position with a [Industry 1] company as a [occupation].
The Applicant said, and I accept, that if released back into the Australian community he has employment [with a specified business].
The Applicant was married and his former wife was of New Zealand heritage. He met her in Australia. She migrated to Australia when she was [age] years of age. They separated after approximately [number] years of marriage, in about 2014 or 2015. There are two sons of the relationship currently aged [age] and [age] years. They both live with their mother.
The Applicant has a good relationship with his former wife. He and his former wife share the care of both children and the Applicant has a close and loving relationship with them. Until he was taken into custody, he saw them each weekend. Both boys share the Applicant’s love of [Sport 1]. The eldest son attends [a specific] high school and the younger son is in primary school.
The Applicant’s said his former wife had intended to give evidence but was not able to attend because of a death in the family on the Sunday immediately before the hearing, requiring her to travel to New Zealand.
I accept the Applicant’s evidence with respect to the family relationship and the reason for his wife’s unavailability to appear before the Tribunal.
The Applicant came to Australia to explore the country and because he had a friend living in [City 1] whom he had met at school in New Zealand. The Applicant said that, since arriving in Australia, he had been back to New Zealand many times and approximately every year save for the last three to four years. The Applicant’s mother and father are separated. His mother lives in [State 4]. His father moved to Australia but returned to New Zealand approximately two years ago where he remains. The Applicant has a brother who also resides in [State 4].
The Applicant said he remained close with his father since he returned to New Zealand, as he does with his mother and brother.
The Applicant’s former wife works [for a company] and he continues to provide financial and emotional support to her and their two children.
The Applicant said that, other than his father, he has no real ties to New Zealand. He feels like he is an Australian as he has spent the majority of his adult working life in Australia. His greatest fear is to not be part of his children’s lives and to engage with them and see them on the regular basis that he currently enjoys. All of his friends live in Australia. He has no friends in New Zealand. He has immediate employment should he return to the Australian community and although he believes he will gain employment if he returns to New Zealand, he will not do so quickly.
The Tribunal issued a [subpoena] for the production of all records relating to the Applicant’s offender history. The Tribunal had before it the [police] reports in relation to each of the abovementioned offences. The Tribunal became aware of another alleged offence of trafficking in [Drug 1] committed at about the same time as the other offending. The [police] report was not before the Tribunal.
The Applicant was invited to comment on the [police] reports in relation to each of the alleged offences that gave rise to the cancellation of his visa. The Applicant was warned about the privilege against self-incrimination before answering questions about the alleged offending. The Applicant denied the allegations.
As to the alleged offences relating to [Ms A], the Applicant said that she was his former partner with whom he had been in a relationship for about 18 months. The Applicant’s sons loved [Ms A]. That relationship ended at about the time she made the allegations to police which gave rise to a number of the alleged charges.
The Applicant said in evidence and I accept that [Ms A] has since moved to [State 3] and [Charge 1] issued against the Applicant was lifted at her request. It is unlikely she will return to [State 1].
The Applicant described his relationship with [Ms A] as “hard” and that the allegations made by [Ms A] to police were untrue. He explained that with the loss of his business and the personal difficulties he faced following the breakdown of his marriage he turned to drugs, and he and [Ms A] had been taking drugs at about the time of the false report in relation to the alleged offending.
The Applicant said that after he was charged and taken into custody and the matters were before the courts, [Ms A] contacted the police and the Office of the Director of Public Prosecutions and told them that the allegations were false. The charges were discontinued. [Ms A] also apologised to the Applicant for making the false report. Further I note that the alleged offence referred to in paragraph 10 (g) was before [City 1] Court on [date] and heard along with those alleged offences involving [Ms A]. That charge was not proceeded with along with all other charges involving [Ms A]. I infer that this too was an alleged offence which [Ms A] asserted was a false report.
As for the alleged offence referred to in paragraph 10(c) above, the Applicant’s attention was drawn to the [police] report and the alleged incident as reported by the alleged victim to police. The Applicant admitted that there was a confrontation with another driver. That driver, he said, had pulled up in front of the Applicant’s car, cutting him off, and slammed on his brakes. That driver who was in [a] uniform immediately alighted from his vehicle and approached the Applicant. The Applicant acknowledged there was a verbal altercation but said that he sought to defuse the tension. He denied the allegation that he produced a [weapon]. He said in hindsight he should have driven off rather than engaged with the other driver.
The Applicant said that since being in custody he has ceased all drug consumption, he has always tested negative to drugs when urine tested, he has lost 17kg in weight, and now feels fit and healthy. He has renewed his old friendships, and no longer associates with [Ms A] or others who were involved in drugs.
The Applicant also gave evidence about the alleged offence of drug trafficking. Again before doing so, the Applicant was warned about the privilege against self-incrimination in respect of the alleged offending. His representative immediately produced the [police] report and read its contents to the Tribunal.
The Applicant said that the alleged offence occurred at about the same time as the issues with his relationship with [Ms A] and the making of the false report. In summary, the [police] report said that police attended a venue in the city. The accused was using a poker machine. Police made certain observations about his appearance and as a result he was searched. He was found to be in possession of [various items associated with Drug 1]. The quantity of [Drug 1] in his possession was, by operation of the relevant drug legislation, deemed to be in his possession for the purpose of trafficking, and it is for the Applicant to satisfy the court that it was not. The Applicant denies he was trafficking in the drug and the matter is strongly contested.
The Applicant also called a witness, [Mr A]. He is a friend and former work colleague. [Mr A] saw the Applicant whilst he was in the relationship with [Ms A] but has not met his former wife.
[Mr A] said that he met the Applicant approximately three years ago working in [Industry 1]. The Applicant was, at first, a customer, but they quickly developed a strong friendship and socialised.
[Mr A] has a [age] year old daughter. He is a single parent and has 100% care of that daughter. His daughter enjoys a good relationship with the Applicant and his sons. He continues to support the Applicant.
[Mr A] said that, should the Applicant return to the community, he is welcome to live with him and his daughter until the Applicant can get back on his feet, secure employment and find an appropriate residence. He said he would not continue to support the Applicant and to offer him accommodation if he did not trust him and particularly if he thought he was potentially a bad influence on his daughter.
[Mr A] described the Applicant as someone who is highly regarded in [Industry 1], reliable, honest, and does what he says he will do. He regarded the Applicant as a valuable customer and one for whom he has the highest regard.
[Mr A] described [Ms A] as a manipulator, attention seeker, loose cannon, erratic and said she “chops and changes all over the place”. He said his last contact with [Ms A] was when she was in [State 3]. He recalled an occasion when [Ms A] telephoned him and was very apologetic for having caused the Applicant’s downfall by reporting him to police. [Ms A] had also sent a text message in which she apologised for what had occurred, said that she was wrong and that she had sent rent money to [Mr A] to be given to the Applicant. He said that it was unfortunate that the Applicant had fallen in love and had a relationship with [Ms A], and that it is to his benefit that that relationship has ended and she is no longer living in [State 1].
[Mr A] said that he has not communicated with [Ms A] since just prior to Christmas. He described her as having “flipped out” for reasons that were inexplicable.
[Mr A] has seen the Applicant in the company of his sons on a number of occasions such as at barbecues. He observed that they get on very well together. He described them as nice boys and that their relationship with the Applicant is a strong one.
[Mr A] said that he was aware of the various criminal charges which led to the Applicant remaining in custody and, further, he was aware of the allegation of road rage and the person involved. It was [Mr A’s] opinion that the incident was blown out of proportion. However, he only recently became aware of the Applicant’s drug use. He described the appearance of the Applicant eight months ago as bloated and much larger. That appearance surprised him. However, now he looks fit and healthy and is a much changed person.
[Mr A] is working with others to ensure that the Applicant will have employment upon his release and he is confident that will occur. He said it was his intention to make it a priority to ensure that the Applicant’s life is back on track.
I found [Mr A] to be a credible and reliable witness who had a genuine concern for the Applicant’s future and that of his sons. I am satisfied that [Mr A] will provide support to the Applicant, including arranging employment should the Applicant be released into the community.
The Applicant produced a number of additional character references. The Director of [Business 1], who was a former customer and then employer of the Applicant, confirmed the evidence of [Mr A], namely that he was both an excellent customer and employee, and that when the Applicant was engaged in his own business, [Business 1] employed him as a subcontractor. Reports were received from two friends who also confirmed the Applicant’s loving relationship with his sons and the regard that they and others have for the Applicant. Two reports were received from officers [who] supervised the Applicant’s employment within [a named prison]. They both spoke well of the Applicant and described him as being a cooperative and reliable worker, resourceful and demonstrating initiative and willingness to learn new methods and styles of cooking. He was described as a person with whom it was a delight to work, a team player with a positive can-do attitude, and that the Applicant has undertaken training in food safety, work health and safety training.
I found the Applicant to be a credible and reliable witness. I accept the explanation for the charges relating to [Ms A] being withdrawn or discontinued, namely that the allegations were false. I have no evidence before me explaining the reason for the withdrawal of the alleged road rage related offence, but I accept the Applicants evidence that no weapon was produced and that he regrets the incident and should have adopted a different attitude and avoided engaging with the other driver. Accordingly I find that there is no evidence upon which I can be satisfied that the ground for cancellation in s.116(1)(e) is made out.

I have also had regard to the alleged offence of drug trafficking, which prosecution is continuing, when considering whether the ground for cancellation in s.116(1)(e) is made out.
In assessing whether I can be satisfied that the presence in Australia of a person who has a pending charge of drug trafficking would or may be a risk to the health, safety or good order of the Australian community within the meaning of s.116(1)(e)(i) of the Act, the reasoning in Newell v MIMA [1999] FCA 1624 is also relevant. The Court held (at 30) that such satisfaction might be based on the risk of an adverse reaction by certain members of the Australian society to his presence in this country in the circumstances referred to above, rather than on concern about the likely or possible conduct of the Applicant in Australia. Whether the presence of the Applicant in Australia might create difficulties in relation to the values, balance and equilibrium of Australian society is also relevant: Tien v MIMA [1998] FCA 1552, at page 94.
I note that although the charge of drug trafficking is still pending, the offending occurred at the same time when the Applicant was in a relationship with [Ms A] and charged with the offences relied on by the authorised officer as founding the cancellation of his visa. I accept that relationship has now ended and [Ms A] resides in [State 3] with little possibility of her returning to [City 1]. The Applicant also recognises the adverse influence that relationship had on him and his drug use. I am satisfied there is a low risk of drug use occurring in the future. I accept that the Applicant has abstained from taking drugs whilst in custody and that his urine has tested negative for drugs during that time. Further, I accept that his general appearance is now one of a healthy man having lost approximately 17 kilograms in weigh which was corroborated by the evidence of [Mr A].
The Applicant has removed himself from those negative influences which contributed to his drug use. In the Applicant’s favour is the fact that he has maintained his relationship with [Mr A], who is a positive support for him now and if released. The Applicant has the trust of [Mr A], who intends to prioritise getting the Applicant’s life back on track now and into the future.
I am satisfied that if released from custody and allowed to return to the community that the Applicant has strong employment opportunities waiting for him.
It is also to the Applicant’s credit that he has renewed old relationships which previously had a positive effect on his lifestyle and ongoing employment.
In light of those circumstances, I am not satisfied the Applicant’s presence in Australia might create difficulties in relation to the values, balance and equilibrium of society such that there might be an adverse reaction by certain members of the community, or that he will or might behave in such a way that his presence on Australia is or may be a risk to the health, safety or good order of the Australian community or a segment of the Australian community. Nor am I satisfied his presence in Australia is or may be a risk to the health or safety of an individual or individuals.
I have considered the Applicants convictions and his alleged offending, and in particular his change of personal circumstances and the support with which he is now surrounded, and his efforts and commitment and incentive to maintain those changes, I am not satisfied that his presence in Australia is or may be a risk to the health, safety or good order of the Australian community, or the health or safety of an individual or individuals. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(e) of the Act exists. It follows that the power to cancel the Applicant’s visa does not arise.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the Applicant’s Subclass 444 (Special Category) visa.
Brenton Illingworth
Senior Member