1935088 (Migration)

[2020] AATA 6204

1935088 (Migration) [2020] AATA 6204 (27 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1935088

MEMBER:Michael Ison

DATE OF ORAL DECISION:  27 November 2020

DATE OF WRITTEN STATEMENT:         18 March 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitute’s a decision not to cancel the applicant’s Special Category (Class TY) (Subclass 444) visa.

Statement made on 18 March 2021 at 5:58pm

CATCHWORDS

MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – risk to the health or safety of the Australian community – criminal convictions – multiple imprisonments – drug addiction – Australian citizen child of the relationship – potential period of separation from family – rehabilitation and counselling – decision under review set aside       

LEGISLATION

Migration Act 1958, ss 116, 359
Migration Regulations 1994

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 26 November 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).

   Background

2. The applicant is [name], [an age]-year-old New Zealand national. [He] is referred to in these reasons for decision as the applicant.

3. The applicant first arrived in Australia [in] April 1996 as the holder of a Subclass 444 visa and had further short duration trips to Australia in 1999, 2002, 2005 (twice) before relocating to Australia with his birth family in May 2006. Since that time the applicant has returned to New Zealand nine times for various durations, with his most recent trip to New Zealand being in April 2013 for 18 months. The applicant returned to Australia in October 2014 and has not departed Australia since.

4. Since relocating to Australia with his family the applicant has entered into a long-term relationship with his now fiancé [named], who has an [age] year old daughter from a previous relationship and an [age] old son with the applicant. The evidence before the Tribunal is both children and [his fiancé] are Australian citizens, which the Tribunal accepts.

   Applicant moved [between states and] to [Detention Centre 1]

5. The applicant was detained in immigration detention [in] June 2020, after his release from prison where he was held on remand for [period] between [dates in] 2019 and [2020]. The applicant was initially held at [Detention Centre 2] in [one state], where his family and lawyer are located.

6. For reasons that have not been explained to the Tribunal the applicant was moved from [Detention Centre 2] to  [Detention Centre 3] in [another state] in October 2020 before being moved again to [Detention Centre 1] only three weeks before the Tribunal hearing in November 2020. The applicant being moved by the Department firstly to [Detention Centre 3] and then to [Detention Centre 1] denied him physical access to his family and lawyer. Relocating the applicant firstly to [state] and then to an island in the Indian ocean that is over 2,500 kilometres from Perth presumably occurred at significant financial cost to the Australian community and did not assist the Tribunal in the conduct of this review.   

   Apology to the applicant from the Tribunal

7. At the outset of the Tribunal hearing the Tribunal offered the applicant the following unreserved apology, which is self-explanatory on its own terms:

   Firstly, [applicant name] I would like to extend you an apology on behalf of the Tribunal. I can see that you lodged your application for review on 11 December 2019 and that you have been detained in immigration detention since your release from prison [in] June 2020. Your review was not constituted to me until 19 August 2020 and then with my case load and [Representative A’s] availability we could not schedule your hearing before today. Normally when an applicant is being held in immigration detention the constitution of the review to a member and the scheduling of a hearing would occur as a priority and more quickly than it has in your case. I do not know why it took so long for your case to be constituted to me but I will be referring that matter to the Division Head of the Migration and Refugee Division of the Tribunal. I understand that will be little comfort to you and again, on behalf of the Tribunal, I apologise.

   The primary decision  

8. The applicant provided the Tribunal with a copy of the delegate’s decision. The delegate cancelled the applicant’s Subclass 444 visa under s.116(1)(e)(i) of the Act on the basis that the applicant’s presence in Australia is or would be a risk to the health, safety or good order of the Australian community because he had been charged with three criminal offences, [details deleted]. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Tribunal hearing

9. The applicant appeared before the Tribunal by video from [Detention Centre 1] on 27 November 2020 to give evidence and present arguments. The applicant’s fiancé, father, mother, [a sibling] and future mother-in-law were available to give evidence on the applicant’s behalf. The Tribunal was able to make a decision in the applicant’s favour without hearing the oral evidence of the witnesses. The witnesses each provided written statements or letters of support for the applicant. Those written statements and letters were of assistance to the Tribunal in the conduct of this review and the Tribunal thanks each witness for being available to give evidence.

10. The applicant was represented in relation to the review by [Representative A]. [Representative A] attended the Tribunal hearing by video and at that time was a practising lawyer and registered migration agent. [Representative A] is referred to in these reasons as the applicant’s representative.

11. The Tribunal hearing was held during the COVID-19 global pandemic. The Tribunal determined it was reasonable to hold a hearing by audio-visual link, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by audio-visual link. The Tribunal was satisfied the applicant, his representative and the Tribunal could satisfactorily see, hear and understand each other throughout the hearing.

    Written submissions received on behalf of the applicant

12. The Tribunal received the following written submissions on behalf of the applicant prior to the Tribunal’s hearing:

    ·A copy of the Record of Decision dated 26 November 2019 in which a delegate of the Minister cancelled the applicant’s Subclass 444 visa was provided with the applicant’s application for review made on 12 December 2019;

    ·A 2-page letter dated 29 September 2020;

    ·A 12-page written submission with a 6-page index of documents also dated 29 September 2020;

    ·178 pages of attachments listed in the index of documents;

    ·Other correspondence in relation to hearing availability and witness details.

13. The 178 pages of documents provided on 29 September 2020 included the applicant’s criminal history, birth certificates for [his fiancé’s] and the applicant’s children, personal correspondence, offender case file from [a named] Correctional Centre, course completion certificates and reports for programs undertaken in prison, a psychologist’s report dated 24 September 2020, 67 requests from the applicant to prison authorities seeking to participate in additional rehabilitative courses and programs, character references from family members and former employers including an ongoing offer of employment.

14. On the day of the Tribunal hearing the Tribunal received an additional 30 pages of documents on behalf of the applicant including an eight page written statement from the applicant, a four page written statement from [his fiancé] and written statements from the applicant’s parents and from [his fiancé’s] mother. All the written statements were dated 26 November 2020. The documents also included a medical certificate for [his fiancé’s] father who has been diagnosed as suffering [a terminal condition], course completion certificates for the applicant including understanding addiction and positive parenting short courses and a letter from [an agency] dated 14 November 2020 confirming the applicant has been accepted into their residential rehabilitation program.

15. Those submissions were presented in a clearly indexed and tabulated format with documents grouped in logical order. The submissions and the manner in which they were presented to the Tribunal were of considerable assistance to the Tribunal in the conduct of this review and the Tribunal thanks the applicant’s representative for her assistance and professionalism in this regard.

    Disclosure of adverse information to the applicant

16. The applicant’s submission dated 29 September 2020 was provided in response to a letter sent to the applicant by the Tribunal dated 8 September 2020 disclosing information that would be the reason, or a part of the reason, for the Tribunal to affirm the decision under review, in accordance with the requirements of s.359A of the Act.

17. The Tribunal’s letter stated:

    In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    Please note, however, that we have not made up our mind about the information.

    Particulars of information
    The Tribunal has received a copy of the Department’s file in relation to the cancellation of your Subclass 444 visa.

    The Department’s file contains a report from [state] Police printed on 1 July 2019 that discloses you have a criminal history in that State dating back to 2007, have been convicted for [one charge] in 2010 and 2015, for [two charges] in 2015, for [various charges] in 2015, for [another charge] in 2017 and 2018 (five convictions) and in 2019 have been charged with an extensive number of offences including [multiple charges specified]. There are multiple charges for some of these offences.

    In addition an email from [state] Police dated 1 July 2019 states you were found guilty in [another specified state] in 2005 of [a charge].

    A copy of the report and email from [state] Police are enclosed. The email has been edited to prevent the unreasonable disclosure of personal information by removing the names of third parties.

    The relevance of this information to your review

    The information from [state] Police is relevant to your review because you have an extensive criminal history in Australia dating back to 2005 and are currently charged with an extensive number of offences, including indictable offences, the outcome of which is nknown to the Tribunal. This information is relevant to both whether there is a ground for the cancellation of your visa and, should the Tribunal find there is a ground, whether the discretionary considerations overall weigh in favour of or against the cancellation of your visa.

    In relation to whether there is a ground for the cancellation of your visa, the information is relevant because the criminal offences you have been convicted of and charged with involve behaviour that poses a significant risk to the health, safety and good order of the Australian community and this risk is ongoing.

    It is commonly accepted and publically known that the use of drugs causes significant harm which can extend to incidents of domestic violence, mental health issues and the committing of other crimes as is evident in your case, impacting not just the individual but their family members, friends and the broader community and costing Governments and communities throughout Australia significant funds and resources to try and prevent and to respond to those harms.

    Crimes of personal violence, particularly when committed against a police officer, are traumatic for the people assaulted, undermine law and order and also community safety. Collectively, your criminal history and outstanding charges are so extensive that the Tribunal could form the view they indicate you do not respect the laws of Australia generally and the laws of the communities within which you have lived or the authority and role of the police in ensuring compliance with those laws and the safety of the community.

    You have admitted to a long term addiction to drugs and indicated that as at the date of the cancellation of your visa, you had not received any treatment of note for that addiction or reached the point where you can manage your addiction without drug use and/or criminal offending if you were living in the community. This could lead the Tribunal to form the view that the risk your behaviours of drug use and criminal offending represent to the community are ongoing.

    Should the Tribunal find there is a ground for the cancellation of your visa, the information is also relevant to the Tribunal’s consideration of the discretionary considerations, in particular the circumstances in which the ground for cancellation of your visa arose.

    The consequences for your review if the Tribunal relies on this information
    If the Tribunal relies on the information from [state] Police the Tribunal may find that there is a ground for the cancellation of your Subclass 444 visa under s.116(1)(e)(i) because you have been convicted of and charged with criminal offences that involve actual and alleged behaviour, including drug related crimes, traffic offences and violent behaviour, that is or may be a risk to the health, safety and good order of the Australian community including because of the harms identified above and because your addiction is untreated those risks remain present.

    Should the Tribunal find there is a ground for the cancellation of your visa, as cancellation of a visa is not mandatory under s.116(1)(e), the consequences of the Tribunal relying on the information provided to you is that the Tribunal may find given your substantial criminal history, more recent alleged offending and untreated drug addiction that the circumstances in which the ground for cancellation of your visa arose should be given such significant or great weight that overall the discretionary considerations may weigh in favour of the cancellation of your visa rather than against the cancellation of your visa which would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate to cancel your visa.

    You are invited to comment on or respond to the above information in writing.

    Your privilege against self-incrimination
    The information provided to the Tribunal includes that you have been charged with criminal offences that have not been finalised. In those circumstances you have a privilege against self-incrimination. This is a legal right not to provide information or answer questions that could tend to or may incriminate you in relation to current criminal proceedings until those criminal matters are finalised. Any answers or information you provide to the Tribunal could be used in the criminal proceedings against you. Tribunal hearings are recorded and [state] Police or other prosecuting authorities could obtain a copy of such a recording and use it against you.

    The Tribunal will make no adverse findings against you in relation to the outstanding criminal matters because you choose to assert that privilege.

    Even if you choose to rely on your privilege against self-incrimination in relation to your outstanding criminal charges, it is important that you still respond to this letter, including in relation to your criminal convictions, to ensure that you do not lose your right to a hearing before the Tribunal under either s.359C(1) for failing to respond to the Tribunal’s request for information below or s.359C(2) for failing to give comments or a response to the information the Tribunal has provided above under s.359A of the Act.

18. The applicant requested an extension of time to respond to the Tribunal’s letter and was granted an additional 14 days to respond. The applicant’s representative responded on the applicant’s behalf within the extended period for response.

19. In the applicant’s response to the Tribunal’s letter the applicant’s representative provided documents that confirmed all of the applicant’s criminal matters before the courts had been resolved by the applicant pleading guilty [in] June 2020 to [number] separate criminal offences that arose in 2018 and 2019.

20. As a result of his guilty plea the applicant was convicted and sentenced to terms of imprisonment of [specified time periods] for the four indictable offences and these sentences were each suspended provided the applicant does not commit another offence for 30 months – which expires [in] December 2022. The applicant’s [period] spent in prison on remand was recognised in these sentences.

21. In relation to the other [number] summary offences the applicant was convicted of each offence, disqualified from holding a driver’s licence for 27 months and required to forfeit specific items of property.

22. In his statement dated 26 November 2020 the applicant stated he had also been previously imprisoned in 2018.

    Tribunal’s oral decision at the time of hearing

23. The Tribunal gave its decision on the review at the conclusion of the hearing held on 27 November 2020. The Tribunal set aside the cancellation of the applicant’s Subclass 444 visa and substituted a decision that the applicant’s Subclass 444 is not cancelled. The Tribunal indicated to the applicant at the time of making that decision that it would provide the applicant with written reasons for its decision at a later date. The following are the Tribunal’s reasons for that decision.

24. When the Tribunal made its decision in this review on 27 November 2020, the Tribunal prefaced its decision with the following remarks directed to the applicant:

    [Applicant name], the Tribunal is giving you another chance. For the sake of your fiancé, your children, your extended family and for your own sake do not waste this chance. I do not think you will get another chance if you do. You have an extensive criminal history and I suspect the expectation of the average person on the street is that you should be deported. That is not the test the Tribunal has to consider. The Tribunal has had to weigh the considerations that support cancellation – such as your criminal history, your drug addiction and the circumstances of the cancellation of your visa – against those considerations that weigh against cancellation such as the impact cancellation would have particularly on your children but also your fiancé and extended family, your efforts to rehabilitate yourself, the motivations you now have not to reoffend and the impressive support in particular of your fiancé and extended family to assist you to reintegrate back into the community and become a productive and law abiding member of the community.

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. 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). 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 health, safety or good order of the Australian community

1. A visa may be cancelled under s.116(1)(e)(i) 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.

2. The applicant’s representative made written and oral submissions to the Tribunal that the applicant’s criminal offending was property related, did not involve violence directed toward a person, in 2018 and 2019 was drug related, he is now rehabilitated and drug free, has committed to ongoing rehabilitation and is no risk of committing further offences that warrant the cancellation of the applicant’s visa.

3. The Tribunal discussed the applicant’s history of criminal offending with the applicant in great detail during the hearing. The applicant appeared to the Tribunal to be generally open and honest about his offending and his perceptions of its causes, although he could not remember the specific circumstances of some of his offending which in the Tribunal’s experience is not unusual given some offending occurred over 15 years ago and much of the applicant’s recent offending occurred when he was under the influence of methylamphetamine, colloquially known as ‘ice’.

4. The Tribunal is satisfied that the applicant’s extensive criminal history indicates he is or may be a risk to the health, safety or good order of the Australian community for the reasons identified in the Tribunal’s letter to the applicant dated 8 September 2020, reproduced in part in paragraph 16 of these reasons, and for the following reasons. The applicant’s extensive offending, which dates back to 2005 prior to the applicant becoming addicted to illegal drugs, in the Tribunal’s view involved crimes of actual or apprehended violence and crimes of driving a vehicle dangerously and whilst affected by drugs and separate offences of driving while intoxicated each of which placed members of the public in physical danger and therefore was a risk to their health and safety and also undermined the good order of the Australian community.

5. At the time of the Tribunal’s decision the evidence before the Tribunal is that the applicant has received only very limited treatment for his drug addiction and so the Tribunal remains concerned that the applicant may remain a risk to the health, safety or good order of the Australian community until he receives appropriate treatment and support for his drug addiction and is able to manage that addiction while living in the community rather than while he was living in prison, during which time the Tribunal accepts the evidence before it that the applicant abstained from drug use.

6. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(i) 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

7. 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’.

8. The applicant’s circumstances have changed considerably since the delegate of the Minister cancelled his Subclass 444 visa on 26 November 2019. In summary those changed circumstances are that the applicant:

   ·Has become a father of his own biological child for the first time, being a son who was born while the applicant was in prison;

   ·Has finalised all of his criminal matters and is now subject to a concurrent two and a half year sentence of imprisonment if the applicant reoffends again before [December] 2022;

   ·Has been released from prison and detained in immigration detention where access to rehabilitation programs is very limited;

   ·Continues to have the very impressive support of his fiancé, [named], whose detailed statement and letter of support gave the Tribunal a helpful insight into the applicant’s family unit consisting of [his fiancé], her daughter, their son and the applicant and the impact the cancellation of the applicant’s visa would have on each of them;

   ·Continues to have the impressive support of [his fiancé’s] parents, which is not something the Tribunal has taken lightly;

   ·Now has, after a previous period of estrangement initiated by the applicant, the support of his family which in the Tribunal’s view will be critical to the applicant’s effective reintegration back into society and management of his drug addiction;

   ·Has stable accommodation and an offer of ongoing employment; and

   ·Has demonstrated both an understanding of the need to change and commitment to participating in educative and other programs that will assist in his rehabilitation, particularly while in prison;

   ·Has committed to undertaking a residential drug and alcohol rehabilitation program at a leading rehabilitation facility; and

   ·Maintains he has not used any illegal drugs since his imprisonment [in] April 2019, despite it being commonly accepted that drugs can be obtained by prisoner and detainees alike.   

9. The Tribunal accepts that all of the applicant’s birth and own family are in Australia, save for his [sibling] who remains in New Zealand, and that he has made Australia his home for nearly 15 years.

10. The Tribunal considers the applicant’s circumstances provide a compelling reason for him to remain in Australia to be with his fiancé and children, although the applicant did note in his written statement dated 26 November 2020 that his fiancé and children would eventually move to New Zealand, if the applicant’s visa was cancelled. The applicant stated they would only do this after his fiancé’s father has passed away due to his terminal illness and that such a move would cause great hardship for his fiancé and significant hardship for his children, parents and his fiancé’s mother. The Tribunal accepts this evidence and accepts that cancellation of the applicant’s visa would cause at least some period of separation between the applicant and his fiancé and children.

11. In his written statement the applicant stated:

    75.     I am deeply sorry for my offending.

    76. Although it is no excuse, it related to my previous drug addiction. I don’t think this is an excuse but I would never do things like that when I am sober.

    77. I have been drug-free for over 19 months and have undertaken as many rehabilitation courses as possible during my incarceration.

    78.     I have also cut off contact from the people who are related to that old part of my life.

    79. If I am allowed to remain in Australia, I will have the support of my parents, siblings, parents in-law, fiancée, and my non-drug using friends. I also have an offer of employment from my previous employer ([named]), and therefore could get back on my feet and contribute the Australian economy and my family straight away.

    80. My family and children live in Australia, and therefore Australia is my home. There is nothing for me in New Zealand anymore.

    81.     I have truly already suffered the consequences of my offending, as have my children and family.

    82. I will never risk hurting them again, and armed with the knowledge I have acquired from my rehabilitation courses, I will never take drugs or offend again.

    83. I am sincerely asking you for a second chance. If given the chance to remain in Australia, I can prove to you that I can be a loving partner and father, and a hardworking, law-abiding member of the Australian community.

    84. Please consider the impact of my deportation not only on me, but on my Australian fiancée, Australian children, parents, sibling, and my parents in-law. We are an extremely close family, so my deportation would be devastating.

12. The rights of the applicant’s children, who are both Australian citizens, weighed heavily on the Tribunal. At the time of the Tribunal’s decision the applicant’s son was [age] old and is now over [age] old and his daughter has just turned [age]. The applicant had not yet lived with his son for any extended period of time and the Tribunal has accepted cancellation of his visa would cause some period of separation.

13. The Tribunal’s concerns in this regard were ameliorated by [his fiancé’s] commitment to move to New Zealand with the children to be with the applicant, even though such a move was not her stated preference or what the applicant or [his fiancé] consider would be in the children’s best interests given that would separate them from their extended family in Australia. The Tribunal accepts this evidence but does not find that cancellation of the applicant’s visa in his particular circumstances would cause Australia to be in breach of United Nations Convention on the Rights of the Child or the International Convention on Civil and Political Rights.

14. There are several aspects of the applicant’s circumstances that remain of concern to the Tribunal. The Tribunal does not accept that the applicant’s criminal offending has been caused primarily by his drug addiction since 2015. The applicant’s criminal offending dates back to 2005, is not isolated, reveals a lack of respect for Australian laws and is so extensive and serious that it provides a powerful consideration in support of the cancellation of the applicant’s visa. The Tribunal does accept that the most recent and perhaps most serious criminal convictions of the applicant, including the four convictions for which he received a suspended sentence of imprisonment, all occurred during a period where the applicant says he was addicted to and using methylamphetamines.

15. The Tribunal is also concerned that while the applicant maintains he abstained from drug use in prison, it was untested at the time of the Tribunal’s decision whether the applicant will be able to live drug free in the community. This has not been a matter within the applicant’s control given he was detained in immigration detention upon his release from prison, but it remains a concern for the Tribunal.

16. The Tribunal is greatly disturbed by the applicant’s drug addiction and its potential impact on his family, particularly given his evidence that when he committed his most recent crimes he was “… on a drug ‘bender’ for twelve days.” While the applicant maintains he did not use methylamphetamine in the house he shared with his fiancé and children and never exposed his children to his drug use, the Tribunal does not accept that his fiancé and children would have been unaffected by his drug use or were never present when the applicant was under the direct effect of ice or after effects of ice use. The risk the use of ice presents to the health and safety of the applicant’s fiancé and his children is a matter that occupied a great deal of the Tribunal’s consideration of the applicant’s circumstances.

17. Ultimately, the Tribunal has accepted the applicant’s oral evidence in particular of his genuine commitment to both his family and his rehabilitation from his drug addiction. The applicant’s acceptance into a leading residential drug and alcohol addiction recovery program, the impressive support of the applicant’s fiancé, extended family and friends including former employers, satisfied the Tribunal that the discretionary considerations that weigh against the cancellation of the applicant’s visa outweigh the discretionary considerations that support the cancellation of his visa.

18. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

19. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

    Michael Ison
    Senior Member