1830074 (Migration) - [2018] AATA 5542

1830074 (Migration) [2018] AATA 5542 (20 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1830074
MEMBER:John Billings
DATE:20 November 2018
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 20 November 2018 at 3:48pm

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – ground for cancellation – risk to safety of Australian community or individual – convicted of serious criminal offences – breaches of orders made for the protection of persons – genuineness of remorse – consideration of discretion – family ties in Australia – financial support to family – lack of face to face contact between applicant and his children since 2015 – not forthcoming in relation to criminal history – degree of hardship – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 140
CASES
Gong v MIBP [2016] 561
Newall v MIMA [1999] FCA 1624

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 1 October 2018 made by a delegate of the Minister for Immigration and Border Protection under s.116 of the Migration Act 1958 (the Act) to cancel the Subclass 444 (Special Category) visa held by [the applicant]. [The applicant] has a number of aliases recorded in the primary decision.
The delegate gave notice of intention to consider cancellation (NOICC) dated 29 August 2018. There was no response from [the applicant]. ([The applicant] acknowledges that at the time the NOICC was given he was living during the week at the address to which the NOICC was sent though he says that he did not receive it).
The delegate cancelled the visa under s.116(1)(e) on the following basis. The delegate concluded that the presence of [the applicant] 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. The delegate’s conclusion was based on evidence that [the applicant] had been convicted of certain criminal offences and that there were further criminal charges pending. The delegate exercised discretion to cancel the visa.
[The applicant] applied for review on 15 October 2018. He provided a copy of the primary decision to the Tribunal.
[The applicant] essentially concedes that the ground for cancellation is made out. In an undated written statement to the Tribunal he said that “it is an undisputable fact” that he 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. The issue in this case is therefore whether the visa should be cancelled.
[The applicant] is detained at [an] Immigration Detention Centre.

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 1830074 (Migration)

Details

AGLC: 1830074 (Migration) [2018] AATA 5542
Case: [2018] AATA 5542
Decision Date: 20 November 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 444 (Special Category) visa of an applicant. The dispute centred on whether the applicant's presence in Australia posed a risk to the health, safety, or good order of the Australian community or a segment thereof, as provided by section 116(1)(e) of the Migration Act 1958 (Cth). The applicant had a criminal history involving serious offences against the person, including breaches of protection orders.

The Tribunal was required to determine if the ground for cancellation under section 116(1)(e) was established and, if so, whether to exercise its discretion to cancel the visa, considering all relevant circumstances. The legal issues included the interpretation of "risk" under section 116(1)(e), the threshold for establishing such a risk, and the genuineness of the applicant's remorse in light of his criminal conduct and lack of candour. The Tribunal also had to weigh factors favouring or disfavouring cancellation, such as the applicant's family ties in Australia, financial support for his family, the degree of hardship cancellation would cause, and the circumstances surrounding his offending.

The Tribunal found that the applicant's criminal record, particularly the breaches of protection orders, established that his presence in Australia was or might be a risk to the safety of the Australian community or a segment of it, consistent with the amended threshold in section 116(1)(e). While acknowledging the applicant's expressed remorse and his claims of financial support for his family, the Tribunal found his lack of candour regarding his offending cast doubt on the genuineness of his remorse. The Tribunal also noted the lack of face-to-face contact with his children since 2015. Despite considering the emotional hardship cancellation might cause, the Tribunal concluded that the circumstances of the offending were not beyond the applicant's control and, on balance, affirmed the decision to cancel the visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel [the applicant]’s visa should be affirmed.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). 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. A visa may be cancelled under s.116(1)(e) if the Minister or the Tribunal 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. The expressions “health” and “safety” are used in s.116(1)(e) in their ordinary meanings: see Newall v MIMA [1999] FCA 1624 at [21]. “Risk” is not defined but use of the words “may be a risk” means that there does not have to be any direct, solid or certain foundation before the power to cancel a visa can arise: see Gong v MIBP [2016] 561 at [41]. The provision was amended by the Migration Amendment (Character and General visa Cancellation) Bill 2014. Item 13 of Schedule 2 to the Explanatory Statement for that Act states: The purpose of this amendment is firstly to clarify that this ground for cancellation applies where the risk of harm is to an individual, or a segment of the Australian community, as well as to the broader Australian public. Secondly, the amendment seeks to lower the threshold of this cancellation ground, so that it exists where there is a possibility that the person may (or might upon their arrival in Australia) be a risk to the health, safety or good order of an individual or community in Australia, as well as where there is demonstrated to be an actual risk of harm. (Emphasis added). For reasons that follow, the Tribunal is satisfied that the presence of [the applicant] 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. It is unnecessary for the Tribunal to make a determination about the adverse information mentioned earlier or about whether there are still criminal matters pending, for as noted towards the beginning of these reasons, [the applicant] essentially concedes that the ground for cancellation is made out. [The applicant]’s criminal record shows a number of serious crimes against the person committed over several years. Of particular concern are the breaches of orders made for the protection of persons. [The applicant] now expresses remorse for his past actions and indicates that he would undertake whatever behavioural management programs may be required but he has offended repeatedly and breached these orders. The Tribunal is especially concerned that [the applicant] was not forthcoming when it questioned him about the circumstances of his offending. While he says that that his imprisonment ending early this year made him learn from his “mistake”, his lack of candour casts doubt on the genuineness of his remorse.

Decision

Reasons for decision

Considering all the circumstances as far as they can be determined on the whole of the evidence before the Tribunal, the Tribunal concludes that the visa should be cancelled. DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.John BillingsSenior Member

Ratio Decidendi

Legal Principle Established

On the basis of the above matters, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) 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 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 Tribunal first considers the purpose of [the applicant]’s travel and stay in Australia and whether he has a compelling need to travel to or remain in Australia. [The applicant] has effectively established residence in Australia since 2005. Until 2015 he was living with his family in Sydney. Since then he has been living separately in Melbourne. He has not seen his wife since then. And until last weekend he had not seen any of his children. He told the Tribunal that he financially supports his family and is regular contact with his children but the Tribunal does not accept the explanations given by [the applicant] and his daughter for the lack of face to face contact there has been since 2015. On this whole this factor nevertheless has substantial weight in [the applicant]’s favour. The Tribunal next considers the extent of compliance with visa conditions. There were no conditions attached to [the applicant]’s visa. This factor has no weight. The Tribunal now considers the degree of hardship that may be caused (financial, psychological, emotional or other hardship) by cancellation. The Tribunal inquired as to [the applicant]’s physical and mental health. He mentioned feelings of anger regarding the [injuries he sustained] thought he told the Tribunal that he has not ever sought or received counselling or treatment for any mental health condition. [The applicant] is pessimistic about his employment prospects in New Zealand or [Country 1] but the evidence before the Tribunal does not enable it to be satisfied that [the applicant] would be unemployed in the longer term if he had to leave Australia, or that he would become destitute. The Tribunal considers that hardship, especially emotional hardship to [the applicant], is a factor that has some weight in favour of not cancelling the visa. Next the Tribunal considers the circumstances in which the ground of cancellation arose and especially whether the circumstances in which the ground for cancellation arose were beyond [the applicant]’s control. [The applicant] has committed serious offences and he concedes that his presence in Australia is or may be, or would or might be a risk to the community or a segment of the community. [The applicant] was not forthcoming when the Tribunal attempted to explore the circumstances of his offences. On the evidence before it the Tribunal is not satisfied that his offending has been beyond his control. This factor does not weigh in [the applicant]’s favour.