1914028 (Migration)

[2019] AATA 6845

1914028 (Migration) [2019] AATA 6845 (8 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1914028

MEMBER:Rachel Westaway

DATE:8 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 08 October 2019 at 11:00pm

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – risk to community and individuals – criminal charges, convictions and imprisonment – discretion to cancel visa – factors for and against cancellation – previous criminal record not voluntarily disclosed to tribunal – alcohol-related violence – guilty plea, remorse and participation in rehabilitation activities – limited ties to home country and no ties to birth country – family, partner and children in Australia – best interests of children – no contact with one child and limited contact with another – large child support debt – real risk of reoffending – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 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 29 May 2019 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 presence of the visa holder is or may be, or would or might be, a risk to the health or safety of an individual or individuals. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 8 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], the applicant’s mother.

4. 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

5. 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). 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

6. 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].

7. 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.

8. The applicant provided the Tribunal with documents at hearing. These documents related to the charges the applicant faced which led to the cancellation of his visa.  Two charges were withdrawn and the applicant provided the Tribunal with documents which confirmed his charges and subsequent convictions. These documents were:

   ·A letter of confirmation from the applicant’s criminal lawyers [dated] September 2019 which confirmed he was convicted of unlawful assault and sentenced to 2 months, 2 months’ imprisonment for breaching a family violence intervention order, 60 days imprisonment for breaching a community corrections order. Some of the sentences were to be served concurrently and in total the applicant was sentenced to 3 months imprisonment. A full no-contact Intervention Order was made.

   ·A copy of the Family Violence Intervention Order [dated] April 2019

   ·A family Violence Final Intervention Order [dated] September 2019

   • An application by the applicant’s partner [dated] September 2019

   ·Two certified extracts [dated] September 2019 where the charges of Intentionally cause injury and Contravene Family Violence Intervention order Intending to Cause Harm or Fear were withdrawn

   ·An application by the applicant’s partner [dated] September 2019 to have the order varied so she can speak to him and so he can see [their child]

   ·A copy of the warrant to imprison

9. The applicant did not dispute the convictions.

10. [The applicant] confirmed he came to Australia [in] June 2009 after being granted a subclass 444 visa.

11. The Department received information that [in] April 2019, he was arrested and charged by Victoria Police with the charges now culminating in convictions which attracted a prison sentence. The applicant was originally sent a Notice of Intention to Consider Cancellation (NOICC) of his visa and provided with an opportunity to respond. He responded to the NOICC and did not dispute the charges.

12. The Tribunal explained the process of reviewing the cancellation and asked the applicant if he would like to comment about the charges and subsequent convictions. He confirmed he pleaded guilty and stated he has learnt from this.

13. The Tribunal asked the applicant if he has had any previous charges or convictions or prison sentences. The applicant stated no. The Tribunal reminded the applicant that he was under oath and asked the applicant again. She said he could not remember but it was small things a long time ago. The Tribunal asked the applicant what he meant by small things and he said theft. He stated he has never hurt anyone before. As detailed in the decision, the Tribunal outlined the applicant’s significant criminal record which he did not disclose to the Tribunal voluntarily.

14. The Tribunal considers the current charges and subsequent convictions as extremely serious demonstrating a lack of regard for the safety and wellbeing [the applicant]’s partner and their child. Furthermore the conviction confirms that a family violence intervention order was already in place and the applicant breached this. These actions are serious, violent and unacceptable demonstrating a disregard for the safety and wellbeing of his partner and child and the law. Given a family violence order was already in place, the Tribunal is mindful of the fact that the applicant has already demonstrated a propensity for violence.

15. The Tribunal accepts that the applicant is remorseful and has undertaken treatment in the form or men’s supports groups and Alcoholics Anonymous whilst in prison. However given the repetitive and violent pattern of his behaviour over a number of years, the Tribunal is not satisfied that the applicant does not pose a risk to the Australian community or to individuals in the community.

16. In conducting the review, the Tribunal requested from the applicant a copy of the delegate’s decision. The applicant did not respond the request. Consequently information contained in the delegate’s decision was considered to be relevant to applicant’s case and adverse. As such, the Tribunal under s.359AA provided the applicant with a copy of the delegate’s decision and directed him to the information outlining the applicant’s criminal record in Victoria. The Tribunal read the list of charges and results. The Tribunal explained to the applicant that it had not made up its mind but invite [the applicant] to comment on the information which it considered would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review.

17. [The applicant]’s history is listed below.

Court and Date	Charge	Result
[November 2017] [Magistrates Court 1] [October 2016] [Magistrates Court 1]	- Affray (Common Law) - Unlawful Assault - Contravene Community Correction Order - Breach – re 02/03/2016 - Contravene Family Violence Interim Intervention Order	Convicted and a Community Corrections Order for 18 months. Unpaid community work, perform 200 hours of community work. - Offending behaviour program/s as directed - Any other treatment and rehabilitation as directed: anger management as assessed / directed. Proven Community Corrections Order for 12 months. 100 hours unpaid community work. Cont.
[September 2016] [Magistrates Court 1] [September] [Magistrates Court 1] [March 2016] [Magistrates Court 2] [December 2015] [Magistrates Court 2] [July 2014] [Magistrates Court 2] [January 2013] [Magistrates Court 3] [March 2012] [Magistrates Court 1] [May 2011] [Magistrates Court 2]	- Contravene Fine Default – Community Work Order re 10/12/2016 - Contravene Family Violence Intervention Order - Criminal Damage (Intent Damage/Destroy) - Unlawful Assault - Unlawful Assault - Contravene Family Violence Interim Intervention Order - Contravene Family Violence Intervention Order - Criminal Damage (intent damage/destroy) - Unlawful Assault - Contravene Family Violence Intervention Order - Theft (x 2) - Intentionally Cause Injury - Handle/Receive/Retention Stolen Goods - Theft – From Shop (x 2) - Fail to Answer Bail (x 2) - Re 16/05/2011 Possess Controlled Weapon Without Excuse - Assault in Company - Knowingly/Wilfully/Corruptly Perjure - Possess Controlled Weapon without Excuse	Aggregate 1 month imprisonment. Concurrent. Effective total state term imposed is 1 month. 1 month imprisonment. Concurrent. Convicted and a Community Corrections Order for 12 months. To perform 100 hours unpaid community work. Convicted and a Community Corrections Order for 4 months. To perform 60 hours unpaid community work. With Conviction. To present as a client of project [number] of [Charity 1] within 7 days and thereafter to undergo such counselling as directed… including men’s behaviour programs and anger management programs. Aggregate 3 months sentence, suspended for 12 months. Convicted and fined aggregate $750 Convicted and fined aggregate $750 Without Conviction. Community Correction Order for 6 months. To perform 100 hours of community work. Order all property seized be forfeited and destroyed.

1. The Tribunal explained that the information is relevant to the review because his criminal history indicates a propensity for violence, particularly against female partners. The Tribunal asked the applicant if he understood the relevance of this information to the review and he stated he did. He was offered an opportunity to provide comments on or respond to the information and he was also told he could seek additional time to do so if he wanted to.

2. He confirmed that he was happy to address the Tribunal on the issue presented at hearing.

3. He agreed he has had a history of being an alcoholic and he became negative to people around him and when he isn’t drinking alcohol he is fine.

4. The Tribunal asked the applicant why he did not disclose this information when he was asked originally and he said that he did not remember. He said he has “learnt from his mistakes” and he was a “stupid boy” and he “has children now and he is a grown up man and he learnt from the past”. He said he was young and he should not have done it.  He said he was very sorry.

5. 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

6. 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

7. The applicant came to Australia in 2009 at the age of [age].  He stated he is originally from New Zealand but he had been living in [Country 1] with his Mother and siblings and looking after grandma. He stated that he has spent a limited amount of time in New Zealand. He said his father died when he was 10 years of age after a long illness. He is the eldest child and he has [number of siblings]. He said that he lived in [Country 1] most of his life with his extended family. He said his grandmother is still there and she is [age]. His mother took the family to Australia for a better life. He said his Aunty looks after her. The applicant was not clear on how long he lived in [Country 1] but later said he was there for at least 5 years because he went to primary and college there.

8. He said that on arrival into Australia he and his brother undertook English school for approximately 8 months. Following this his mother helped them to look for jobs and he went to be a [Occupation 1] in [Suburb 1] and his brother worked in [Occupation 2]. He explained he has held numerous jobs and worked for [Company 1] in [Occupation 3]. He worked there casually for a few years. He also worked at a [business] and has generally been in ongoing employment.

9. [The applicant] said that he has strong emotional ties with his family and that it is a close family. He came to Australia with the intention of a better life. He is sober now and he will do everything to be a better person.

10. He stated that he wants to remain in Australia and work so he can provide for his [child] and [Ms B].

11. The Tribunal accepts that the applicant came to Australia for a better future and for migration purposes. The Tribunal accepts that the applicant wants to work and provide for his family. The Tribunal has considered that the applicant could still work in New Zealand and financially support [Ms B] and his children. However in light of the legitimate reasons for coming to Australia, I give this some weight in favour of the applicant.

    the extent of compliance with visa conditions

12. The Tribunal has considered the extent to which the applicant has complied with visa conditions and has found that this does not apply to a TY444 visa.

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

13. [The applicant] has been in Australia for ten years. His immediate family are in Australia and his grandmother lives in [Country 1]. He stated that he spent his formative years in [Country 1] at primary school and college. [The applicant] is a New Zealand citizen. He confirmed he has no assets in Australia and has very limited savings, approximately $200. He has no assets in New Zealand.

14. The applicant explained that his ties are in Australia and he has limited ties to [Country 1] and no ties to New Zealand. He and his mother explained that in [Country 1] it is a poor country and no opportunities for work and he could not live there. He said he has no family or friends in New Zealand. He said that he needs to be with his children and if his visa is cancelled he will be separated from them and this will cause significant hardship. He also stated that he would be unable to work and support them financially. He said that he cannot leave his children as he has four children. He explained the he has two step children and two of his own children [specified]. He said that he wants to work and provide for his family and be a good dad and partner.

15. He explained that his partner is the person who he assaulted and whom the orders relate to. She is an Australian citizen and of [a specified] background. He said he met her through a friend and they knew each other for 9 years.  He was in a relationship for 7 years. He said that [Ms B] is the mother of his step children, an [age] year old girl and a [age] year old boy. The Tribunal asked if there were any parenting orders in place and he said no. He said that the children do not live at home as they are in foster care. He said that his [age] daughter [Child C] is at home and was the only child at home when he lived there. The Tribunal asked about his relationship with the children and he said he plays with the boy and they take him to the pool and park and play basketball. He could not confirm what school he attended, he thought he was in year [level] and he could not recall his birthday. He said that in 2019 her son came back from foster care however the applicant was incarcerated at this time.

16. He confirmed that [Ms B]’s daughter has been in foster care for a long time and has not been in the house he shares with [Ms B] since he was living there and had the baby. The Tribunal asked the applicant why the children were placed in foster care and he said he did not know. He was not sure what was reported. He said he knew [Ms B] was doing a good job because her son is back.

17. The Tribunal asked about his involvement with his daughter with [Ms B]. He confirmed he was at the birth of his daughter at the [Hospital] on [date] and she was born by caesarean. He said that he looked after his partner and the baby after the caesarean and he cooked for [Ms B] so she could eat properly.

18. The applicant explained that his other daughter is from a previous relationship and her name is [Child D] and she is [age] years of age. She lives in [City 1] with her mum. He confirmed that he does not see her. He explained that he previously purchased train ticket every fortnight but her mother has re-partnered and he no longer goes. He confirmed that he does not have access to her and that her mother has full custody. He said he pays $200 in child support a fortnight. When asked to provide evidence of his he stated that he has a large debt and he has not paid it for some time.  

19. The applicant stated that he works with his step father in [Industry 1] and can continue with this if he is released.

20. The Tribunal acknowledges that the applicant’s close family outside of his Grandmother live in Australia and that his children also live in Australia. His mother explained to the Tribunal her love of her son and her desire to keep him in Australia and not break up her family.

21. The Tribunal has considered the emotional hardship the applicant and his family would face if his visa was cancelled. It acknowledges the applicant’s desire to continue to be in the same country as his family members and to financially support his partner and children. For completeness, the Tribunal notes that the Subclass 444 visa is a temporary visa according to the prevailing legislation. The applicant has worked in different casual jobs and has confirmed he has no assets or savings. He has a significant child support debt for his daughter [Child D] and has not seen her since 2014 and does not have custody of her. He claims to need to remain in Australia for his step children however he has demonstrated a very limited connection with the children given he has never lived with them and they have been living in foster care. The Tribunal acknowledges that the applicant has expressed a desire to continue his relationship with [Ms B] and his infant daughter. However intervention orders remain in place at present and do not permit contact with [Ms B] or [Child C]. The Tribunal acknowledges the emotional impact on [Child C] and possibly [Ms B] in not having the applicant reside in Australia. The Tribunal accepts that it is far more desirable for a child to have two parents in their life, however the Tribunal notes that the applicant already had an intervention order in place and his behaviour to date has demonstrated a disregard for the welfare of his partner and daughter to the degree that the Tribunal is not satisfied that the applicant would be able to make an active contribution to her life and be present.

1. Overall, the applicant has a significant criminal history and demonstrated a propensity to be violent towards his partners. He has not demonstrated a commitment to regular contact with his eldest biological [child] and given the orders in place at the time of the offence, did not demonstrate a regard for an ongoing relationship with [Ms B] or [Child C]. The Tribunal acknowledges that a separation would be a significant emotional strain on the family. [Ms B] has demonstrated an interest in limited contact with the applicant given her request for a variation to the orders however this has not been granted yet. The applicant’s mother confirmed that she remains in contact weekly with [Ms B] and [Child C] and cares for [Child C]. She said that [Ms B] would like to see the applicant. The applicant’s mother and the applicant have spoken about their desire to have the family remain close. A cancellation would cause emotional strain on family members and the Tribunal gives this emotional hardship some weight.

2. The applicant and his mother have spoken of the financial strain of a cancellation as he claims he would struggle to work in New Zealand as he has no contacts and his mother has stated that only people with money get ahead. The Tribunal acknowledges that the applicant has only spent a limited amount of time in New Zealand and does not have family there or a job. However, he has managed to secure numerous casual jobs in Australia. The Tribunal accepts that there would be financial hardship for the applicant if his visa was cancelled and he had to return to New Zealand.

3. The applicant stated that his family are all in Australia or [Country 1] and he would be isolated and by himself in New Zealand.  The Tribunal acknowledges this as a significant hardship and gives this some weight.

4. The Tribunal accepts that the cancellation of the applicant’s visa would cause significant emotional stress and some financial stress given the applicant would need to secure work in order to live. The applicant’s mother said that he will be on the streets as he will have no income. However the applicant’s mother also stated that she does send money regularly to her mother and sister in [Country 1] and the applicant has demonstrated an ability to pick up ongoing casual work. I also note that the applicant claims to have a close and supportive family who could assist him initially and the applicant could seek advice on welfare support in New Zealand.

5. The decision to cancel the visa would cause significant emotional and financial hardship on the applicant, his family and daughter with [Ms B].  I have also taken into consideration the length of time the applicant has lived in Australia and [Country 1] and his very limited time in New Zealand. Cumulatively I give these considerations significant weight.

   circumstances in which ground of cancellation arose.

6. In his response to the Notice of Intention to Consider Cancellation (NOICC) the applicant stated that he is a functioning member of society but he has drinking problems and that on the night of the assault he had been drinking day and night and cannot remember his actions. He explained that he is seeking professional help and help of family and friends for detox and rehabilitation. He has undertaken a parenting program, attended Alcoholics Anonymous and anger management courses in prison. When asked how he would act differently if under pressure he said he can go for a walk or talk to someone. He said he needs a counsellor.

7. He explained that he and [Ms B] were under pressure from the Department of Human Service and this put pressure on them. He said he cannot control himself and he ‘flipped’. He said he has learnt from what has done and he wants to be a better person.

8. He said he was trying his best to keep his daughter and he doesn’t want to lose her. He said that in the past there were arguments and this is the first time he has physically assaulted anyone. He has never been charged with assault or hurting anyone else. He has thought hard about what he has done and is learning.

9. The Tribunal as previously detailed put information to the applicant under s.359AA of the Migration Act 1958 which would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review.

10. The applicant’s criminal history is extensive and demonstrates that it is not the first time the applicant has been convicted of serious and violent behaviour towards others.

11. Whilst the applicant stated that he was young and silly and attributes this and alcohol and stress to the situation, his mother stated that it is also due to the influence of women. The applicant supplied a supporting letter which was duplicated twice for the Tribunal but with different dates. They were dated 8 May 2019 and then 9 May 2019. His cousin [Mr E] stated that he has learnt from his mistakes but he was involved with gangs and the wrong young people at school and he is not academic but tries his best.

12. Whilst the Tribunal gives some weight to these explanations and accepts that whilst under the influence of alcohol, people are less in control, the applicant has had numerous opportunities to correct his behaviour and has demonstrated a history of violence. As the delegate stated and the Tribunal also found, the applicant did not acknowledge his past criminal record until it was put to him. Furthermore the applicant was on an intervention order when he assaulted his partner and breached the order.

13. The Tribunal does not accept that the circumstances occurred outside of the applicant’s control and gives these considerations no weight in favour of the applicant.

    past and present behaviour of the visa holder towards the department

14. The Tribunal has considered the past and present behaviour of the applicant towards the Department and does not find any evidence that he has not been cooperative. Some weight is given to this in favour of the applicant.

    whether there would be consequential cancellations under s.140

15. The Tribunal has considered that there are no consequential cancellations under s.140.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

16. The Tribunal put to the applicant that his opportunities of returning to Australia in the event that his visa was cancelled and he was deported would be significantly reduced. The Tribunal informed him that he may still face a bar to re-entry for some years. The applicant stated that he would be prevented from seeing his daughter and [Ms B] and he was sorry. The applicant’s mother stated he would not survive financially if he left Australia.

17. The ongoing cancellation of the applicant’s visa would mean that the applicant is an unlawful noncitizen which may make him liable to be detained under s.189 of the Act and be removed from Australia under s.198 of the Act if he does not voluntarily depart Australia.

18. Having had a visa cancelled under s.116 will mean that the applicant will become subject to s.48 of the Act which means the applicant will have limited options to apply for visas if he remains onshore and will be subject to a three year exclusion period if applying for visas offshore unless the applicant can show he meets Public Interest Criterion 4013.

19. The Tribunal accepts the mandatory legal consequences as set out above that may arise from the ongoing cancellation of the applicant’s visa. The Tribunal gives this consideration some weight against the cancellation of the applicant’s Subclass 444 visa.

    Australia’s international obligations and best interests of the children

20. The applicant has an infant daughter [Child C] to his partner [Ms B]. He also has a daughter [Child D] who he has no contact and no shared responsibility. The applicant stated that he has four children however he confirmed at hearing that the other two children are children to [Ms B] and her former partner and he has no responsibility for these children and there are no parenting orders relevant to him. He also confirmed he has never lived with the children and they are in foster care. As such the Tribunal places no weight on the relationship between the applicant and [Ms B]’s children from another relationship and does not accept that a cancellation would impact on these children.

21. However in respect of [Child D] and [Child C], the Tribunal has carefully considered the application to this matter of the United Nations Convention on the Rights of the Child (CROC) and, as is relevant to the family unit, the International Covenant on Civil and Political Rights (ICCPR). The Tribunal acknowledges that ‘the best interests of the child’ must be treated as a primary consideration by administrative decision makers. Accordingly, the Tribunal has done so in this matter and elevates the weight afforded to the evidence, detailed above, which is suggestive of hardship faced by [Child C] and [Child D] being separated from the applicant.  The Tribunal notes that this primary consideration may be balanced against other considerations, a matter to which it shall later return.

22. However, the following combination of factors presents considerable concern for the Tribunal and weighs strongly in favour of cancelling the applicant’s Subclass 444 visa. The applicant’s proven criminal conduct, which includes his current conviction; unlawful assault breaching a family violence intervention order and breaching a community corrections order and Contravene Family Violence Intervention Order as well as his extensive criminal record including Theft, Intentionally Cause Injury, unlawful assault and several convictions for Contravene Family Violence Intervention Order.  The Tribunal is satisfied the applicant presents a real risk of reoffending and he might be a threat to the safety of the Australian community if he remains in this country. That is because the applicant has a history of being prone to violence in situations of stress or if he comes into contact with alcohol, even with family support available, counselling and his stated remorse.

23. The Tribunal has given the present review application the utmost attention given the ramifications for the applicant and his daughters if the Subclass 444 visa is cancelled. The Tribunal has considered that the applicant has had no contact with his daughter [Child D] since 2014 and has not paid child support. The Tribunal has also considered the applicant’s limited contact with his infant daughter [Child C] and that prior to the cancellation of the applicant’s visa he was not able to see her due to an existing family violence order which was in place. On balance, following much consideration, the Tribunal finds that the factors in favour of cancelling the applicant’s visa outweigh those factors to the contrary.

    if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

24. The applicant’s visa is not a permanent one and there is no evidence before the Tribunal which indicates that the applicant has been the holder of any other visa in Australia.

25. This consideration is neutral and weighs neither in support of nor against the cancellation of the visa.

    any other relevant matters

26. The applicant’s mother [Ms A] attended the Tribunal as a witness for the applicant. She said that she grew up in [Country 1] and then moved to NZ for 3 years in 2008.  She has one daughter born in Australia and has remarried. She asked the Tribunal to consider keeping her family together. She said that she sees [Ms B] and [Child C] every weekend. Her relationship with [Ms B] is good and she calls her mum. She said that [Ms B] has texted her and said that she misses the applicant and the baby reminds her of him.

27. She confirmed she has no relationship with her eldest granddaughter [Child D].

28. She confirmed that she is aware of her son’s drinking problem but believes it is exacerbated by women. She said she could help him find a job. He has a problem with girls. This is his last chance and he is aware of the consequences. She stated that she would continue to support her son and help him find employment.

29. The Tribunal gives some weight to the support offered by the applicant’s mother to assist her son. However the Tribunal notes that with the best intentions and support of his mother, he has continued to build on his serious convictions since being in Australia.

30. The tribunal therefore gives only limited weight to the offer of support by the applicant’s mother.

31. The Tribunal has carefully considered all of the oral and written evidence provided by and on behalf of the applicant in weighing the discretionary considerations pertaining to the cancellation of the applicant’s Subclass 444 visa. Considering the circumstances individually and as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

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

    Rachel Westaway
    Senior Member