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

1. 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. 

2. 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). 

3. 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.

4. [The applicant] applied for review on 15 October 2018.  He provided a copy of the primary decision to the Tribunal. 

5. [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.

6. [The applicant] is detained at [an] Immigration Detention Centre.    

7. [The applicant] appeared before the Tribunal on 19 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [the applicant]’s eldest daughter, [Ms A], who is a [age] year old Australian citizen.  The Tribunal hearing was conducted in English.  An interpreter in the [Language 1] and English languages attended by telephone but was not called upon to give assistance.  

8. [The applicant] is a [age] year old national of New Zealand, born in [Country 1].  He is separated.  Since 2015 he has lived in Melbourne while his wife and [number] children, aged from [age] to [age] years, have lived in Sydney.  His most recent employment – commenced last May - has involved [specific tasks].  [The applicant] first entered Australia [in] June 2005 holding a Class TY Subclass 444 Special Category visa.  He departed Australia [in] February 2011 and re-entered [in] March 2011.  He departed again [in] November 2014 and re-entered [in] December 2014.  He departed again [in] May 2016 and re-entered [in] June 2016. 

9. On 1 June 2016 [the applicant] was granted the Class TY Subclass 444 that has been cancelled. 

10. According to the primary decision, Victoria Police notified the Department in May this year that [the applicant] had been convicted of the following criminal offences while residing in Australia and that he had further charges pending, with a court date of 8 October 2018, which date has of course now passed. 

Court and Date Pending
Melbourne Magistrates’ Court 14 March 2018
Melbourne Magistrates’ Court 7 February 2018
Broadmeadows Magistrates’ Court 22 September 2016
Dandenong Magistrates’
Court 4 October 2015
Parramatta Local Court 17 August 2015
Mt Druitt Local Court 11 September 2009
Mt Druitt Local Court 26 November 2007
Liverpool Local Court Offence Possess general category handgun without licence
Criminal damage
Intentionally cause injury
Possess cartridge ammunition without licence/permit
Assault in company
Recklessly cause serious injury
Intentionally cause serious injury
Unlawful assault
Assault with weapon Contravene community correction order
Recklessly cause injury
Make threat to kill
Intentionally damage property
Contravene a conduct condition of bail
Unlawful assault (2 counts)
Dishonestly undertake in retention stolen goods
Fraudulently use registration label
State false name when requested
Contravene family violence interim intervention order
Unlicensed driving Contravene Family Violence Intervention Order Recklessly cause injury
Make threat to kill
Intentionally damage property
Contravene a conduct condition of bail
Unlawful assault
Contravene prohibition/restriction in Apprehended Violence order (domestic) Common assault (DV) T2
Destroy or damage property under $2,000 Use uninsured motor vehicle
Use unregistered motor vehicle Assault occasioning actual bodily harm
Common assault Court Result Pending next court appearance on 8 October 2018 Convicted and a Community Correction order for 12 months (conditions attached) 21 days’ imprisonment concurrent.  Effective total State Term imposed is 21 days.  Time held in custody, 137 days, reckoned as a period of imprisonment already served  under this sentence Convicted and a Community Correction order for 12 months (conditions attached) 12 months to comply with current Apprehended Violence order Fine $500
12 months supervision
Fine $400 Fine $50 costs – Court $76 Fine $50 costs – Court $76 Fine $400 Fine 200 costs – Court $70

1. Prior to the hearing [the applicant] submitted to the Tribunal notices of court orders that contain the following information regarding the 8 October court date.

Court and Date 8 October 2018
Melbourne Magistrates’ Court Offence Possess unregistered general category handgun Possess cartridge ammunition without licence/permit Court Result Convicted and sentenced to 28 days’ imprisonment concurrent with other State sentences.  Effective total State term imposed is 28 days.  Time held in custody, 28 days, reckoned as a period of imprisonment already served under this sentence Convicted and fined $750 Orders made without consent for property to be forfeited, seized and destroyed: pen pistol, 8 x .22 calibre ammunition, cricket bat, round pole, and coloured shirt

1. In relation to the matters pending - at least at the time of the delegate’s decision - the primary decision includes this information.  Victoria Police alleged that [the applicant] and his co-accused assaulted a man [in] January 2017.  Police alleged that [the applicant] and his co-accused were armed with [various items] when they assaulted the victim and smashed windows at his residence.  The victim suffered a broken [Body Part 1] in three places, lacerations to the left side of his [Body Parts 2 and 3] and lacerations to the back of his [Body Parts 4, 5, 6 and 7].  The alleged offending left the victim experiencing immense pain with injuries that required ongoing rehabilitation.

2. [The applicant] told the Tribunal that on 8 October 2018 the court disposed of all matters.  (It was on that day that he was taken into immigration detention).  [The applicant] said in effect that the assault charges were withdrawn.  On the other hand he was unable to say what he meant in his undated written statement when he said that he had committed crimes from 2007 to 2018 and had “one matter pending”.  (He said that friends in immigration detention and lawyers he spoke to on the phone helped him prepare the statement and some other documents that he submitted). 

3. [The applicant] submitted to the Tribunal letters in support by two of his children - his daughter, [Ms A], and his son, [Mr B]; and by two of his friends – [Ms C] and [Ms D]. 

4. [The applicant] told the Tribunal that in 2013 he was injured by two “uncles” at his home.  He [suffered specific injury] as the result.  He is still angry about that.  There was a dispute when they were using his pool table and a neighbour complained.  [The applicant] asked his uncles to leave.  He told the Tribunal that his uncles were never prosecuted because he forgave them after the whole family apologised. 

5. [The applicant] and his wife and those of his children who were then born came to Australia together in 2005 but in 2015, two years after he [suffered specific injury], [the applicant] wanted to get away and he came to Melbourne.  He has not been to Sydney since 2015 and his wife has not visited him in Melbourne.  With the exception of his daughter, [Ms A] - who came to Melbourne a few days before the hearing and was due to leave soon afterwards - none of the children has visited him in Melbourne.  The Tribunal was told that the children have been busy at school and playing [sport], even during the school holidays.  [The applicant] said he had been planning to see his children, and his two grandchildren (aged [age] and [age]) but he was in prison and after that he was required to stay in Victoria until his October court date. 

6. [The applicant] said that there are no custody or access orders in place or orders that he pay child support, but he said that he has been paying child support and he gives his children extra money if they ask for it.  They maintain regular contact by telephone. 

7. [The applicant] said there are no intervention orders in place at present.

8. [The applicant] gave the Tribunal bare and apparently incomplete information in relation to his past offending.  In particular, [the applicant] was slow to acknowledge there were convictions or intervention orders made where the victim or protected person was a woman.  He finally acknowledged that his wife had obtained one or more orders in [Australian State 1] and that an ex-girlfriend in [Australian State 2] obtained orders against him in [State 2].  At first he said that his wife went to police because she was concerned that he would harm an uncle in retaliation for his injury.  Commenting on or responding to particular adverse information contained on the Department’s file [the applicant] denied that his ex-girlfriend had made serious sexual assault allegations or that he had ever sexually assaulted her.  (These matters were not mentioned in the above criminal history).  He also denied that he had ever made a threat to her that he would “chop [her] children into pieces”.  (This may or may not have related to one of the “make threat to kill” convictions).  [The applicant] went further and alleged that his ex-girlfriend abused the drug ice.    

9. [The applicant] confirmed that he has no convictions other than the convictions in Australia.  He said that he has been imprisoned on only one occasion.  He said he was not sure for how long that was.  He was released at the beginning of this year.  He acknowledged that he had been ordered to undergo alcohol and anger management programs but he said he did not ever have to undergo any drug rehabilitation program.  Concerning the offences that involved contravening a conduct condition of bail, [the applicant] said he thought that referred to him not providing a medical certificate that he had to provide in connection with community service he was required to perform.

10. In one of his written statements [the applicant] mentioned that his supervisor had indicated he was prepared for him to have his job back.  [The applicant] said the supervisor was aware of his criminal past.  He acknowledged that the supervisor was another employee and was not the employer.

11. [The applicant]’s daughter told the Tribunal she knew only that her father had served a prison term for assault.  She said she did not know about any intervention orders.  [The applicant] told the Tribunal that the friends who wrote letters of support were aware of his criminal history.  One of his friends, [Ms C], wrote that [the applicant] is an “active participant for charity works and outreach programs”.  [The applicant] said that she was referring to the work he has done under community corrections orders. 

12. [The applicant] told the Tribunal that he has no family in New Zealand.  He has aunts, uncles and cousins in [Country 1].  He said it would be hard for him to obtain work in those countries.  He said that he loves his children and does not want to lose them.  He acknowledged that his family could visit him in New Zealand or [Country 1].  His daughter, [Ms A], said she spoke on behalf of her siblings who do not want [the applicant] to leave Australia.  She said that it was hard enough with her father being interstate.  She said that it would be much harder financially and practically for them to see him if he had to leave Australia.  She asked for him to be given a second chance.  [The applicant]’s son made similar statements in his letter. 

13. Questioned about his physical and mental health, [the applicant] said that the [injuries he sustained] still makes him angry but he has never sought or received counselling or treatment for any mental health problem. 

14. [The applicant] apologised for his crimes and said that he would undertake whatever anger management or other programs may now be required.  He said he learned his mistake when he spent time in gaol. 

15. 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

16. 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.

17. 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).

18. 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.

19. 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. 

20. 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

21. 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’.

22. 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. 

23. 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.  

24. 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. 

1. 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.  

2. The Tribunal now considers [the applicant]’s past and present conduct towards the Department.  The primary decision indicates that the NOICC was properly given.  [the applicant] has conceded that he was living for most of the week at the address to which it was sent but he claims not to have received it.  The Tribunal does not consider that he was deliberately uncooperative with the Department by not responding to the NOICC.  There is no indication that [the applicant]’s general conduct towards the Department has been of concern.  This factor has moderate weight in [the applicant]’s favour. 

3. The Tribunal now considers whether there are mandatory legal consequences, such as whether cancellation would result in [the applicant] being unlawful and liable to detention and removal from Australia, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent him from making a valid visa application without the Minister’s intervention.  Cancellation may result in [the applicant] continuing to be detained and in him being removed from Australia.  [The applicant] may otherwise be prevented from applying for further visas while in Australia and be affected by Public Interest Criterion 4013 preventing the grant of a further visa to him for three years.  [The applicant]’s daughter, [Ms A], really expressed greater concern than [the applicant] did about the difficulty there would be for face to face contact between him and his family if he has to leave Australia.  The Tribunal accepts the proposition that it would be financially and practically more difficult for family members to see [the applicant] in New Zealand or [Country 1] than in Victoria, but the Tribunal also takes into account the situation regarding the contact they have had since 2015.  While [the applicant] maintained that there is no intervention order currently in place, he finally conceded that there have previously been one or more such orders made for the protection of his wife.  The existence of an intervention order may or may not have been part of the reason for [the applicant] living separately from his wife and children for the past three years.  But the three year separation has not been satisfactorily explained.  [The applicant] said he could not leave Victoria while he was in gaol and then awaiting his October court date.  If that is so, it does not explain why he did not visit family in New South Wales from 2015 until 2017 or why they have not visited him in Victoria.  [The applicant] and [Ms A] and his son, [Mr B], have made statements to the effect that his deportation would be emotionally detrimental for the children.  Beyond that there is no evidence concerning the children or their welfare.  Nevertheless, the potential impact on [the applicant]’s family, including the impact on plans he or they might have to see each other in future, is the most serious and difficult aspect of the case.  But if providing financial support and making even regular contact by telephone has been the extent of [the applicant]’s involvement with his family for the past three years, his removal from Australia would not materially affect that.  [The applicant] told the Tribunal that he left [Country 1] and went to live in New Zealand when he was in his [age].  That is about 20 years ago.  He has resided in Australia for about 13 years, since 2005.  He and his wife have had children here.  He has been in the workforce.  [The applicant] also has friends in this country.  Visa cancellation would therefore have a serious impact on him.  However, taking into account all the considerations just mentioned, but also taking into account the seriousness of [the applicant]’s conduct, which has more or less been repeated over a number of years, the Tribunal considers that the mandatory consequences that it has referred to would not be unreasonable.

4. There would not be any consequential cancellations under s.140.  [The applicant]’s eldest daughter is an Australian citizen.  No one else in [the applicant]’s family could have been a secondary visa applicant when he was granted the visa.  He was granted the visa upon re-entering Australia in June 2016.  It was not claimed that his family travelled with him.  His evidence is that he did not see them after 2015.  This factor has no weight.

5. The Tribunal now considers whether any international obligations would be breached as a result of the cancellation.  There is no claim that Australia’s non-refoulement obligations in relation to [the applicant] would be breached as a result of cancellation of the visa.  Specifically in relation to [the applicant]’s children there is article 3(1) of CROC (Convention on the Rights of the Child) to consider.  That provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.  (In summary, Article 6 concerns the right to life; Article 9 concerns the principle that children not be separated from their parents against their will except in specified circumstances; and Article 24 concerns the right of children to enjoy the highest attainable standard of health).  Article 9(4) of CROC contemplates that a parent may legitimately be separated from children through deportation.  Article 23(1) of the ICCPR (International Covenant on Civil and Political Rights) provides that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.  The children, apart from [the applicant]’s eldest daughter who lives with her partner and their two children, reside with their mother.  They all reside in Sydney.  The Tribunal has essentially considered the best interests of the children in the context of whether there are mandatory legal consequences of cancellation.  The Tribunal has noted especially the lack of contact between [the applicant] and his children for the past three years and the absence of a satisfactory explanation for that.  The Tribunal ultimately gives limited weight to this consideration.

6. The Tribunal has considered [the applicant]’s ties to Australia though notes that the Class TY Subclass 444 visa is not a permanent visa. 

7. The other relevant matter to consider is [the applicant]’s friends’ evidence.  Their letters provide limited support for non-cancellation.  [Ms C]’s letter is in error regarding the length of time [the applicant]’s family has been in Australia and her reference to [the applicant]’s “charity works” and involvement in “outreach programs” is misleading.  [Ms C]’s letter gives no indication that she knows about the criminal history and [Ms D] simply says that he has “turned his life around”. 

8. 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

9. The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

   John Billings
   Senior Member