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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1827629 (Migration)

Details

AGLC: 1827629 (Migration) [2019] AATA 6117
Case: [2019] AATA 6117
Decision Date: 14 June 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision by the Department of Home Affairs to cancel the Applicant's Subclass 444 (Special Category) visa. The Applicant, a New Zealand citizen who had resided in Australia since 2004, had his visa cancelled on 12 September 2018, following various criminal charges laid by Queensland Police in July 2018. The Applicant sought a review of this cancellation decision.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) was made out. This section permits the Minister to cancel a visa if satisfied that the visa holder's 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. The Tribunal was required to determine if the Applicant's criminal conduct, including charges of contravening an intervention order, failing to comply with bail, aggravated assault, and sexual offences, posed such a risk.

The Tribunal considered the Applicant's criminal history alongside his changed personal circumstances and the support network available to him. It noted the Applicant's efforts to abstain from drug use, his healthy general appearance, and his removal from negative influences. Furthermore, the Tribunal accepted evidence regarding the Applicant's positive family relationships, including his close bond with his two sons and his good relationship with his former wife, who was unable to attend the hearing due to a family bereavement. Given these factors, the Tribunal concluded that it was not satisfied that the Applicant's presence in Australia constituted a risk to the health, safety, or good order of the Australian community, or the health or safety of any individual.

Consequently, the Tribunal found that the ground for cancellation under section 116(1)(e) of the Act was not established. The Tribunal therefore set aside the decision to cancel the Applicant's visa and substituted a decision not to cancel the Subclass 444 (Special Category) visa.

Orders

Orders of the court

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Background

Background to the litigation

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].

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 IllingworthSenior Member

Ratio Decidendi

Legal Principle Established

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