2000508 (Migration)

[2020] AATA 4689

2000508 (Migration) [2020] AATA 4689 (6 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2000508

MEMBER:Jason Pennell

DATE:6 October 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 6 October 2020 at 1.32pm

CATCHWORDS

MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – risk to community – criminal history – trial pending for further offences possibly resulting in substantial criminal record – not guilty plea, bail and immigration detention – discretion to cancel visa – long residence, extended family and significant community ties – hardship for Australian citizen partner and children – best interests of children – possible future visa exclusions and conditions – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 5, 32, 116, 189, 198, 200, 362A, 501

Migration Regulations 1994 (Cth), Schedule 2, cls 309.226, 600.213; Schedule 4, Public Interest Criterion 4013; Schedule 5, Special Return Criterion 5002

CASES

Gong v MIBP [2016] FCCA 561

Re Application for Bail by Fadi Diab [2020] VSC 196

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 23 December 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) on the basis that the presence of the applicant in Australia is or may be a risk to the safety of the Australian community. 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 by video on 6 October 2020 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by video via Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, 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 telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

4. The applicant was represented in relation to the review, and at the Tribunal hearing, by his registered migration agent. The Tribunal also received evidence from the applicant’s partner, [Ms A] (‘the applicant’s partner’).

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

Background

1. The applicant was born in [country] and is a citizen of New Zealand. He lived in New Zealand from the age of [age] for approximately two years. [The applicant] migrated with his family to Australia in November 2002 when he was [age] years old. He has spent his formative years in Australia. His partner, [Ms A], [age] years old (DOB: [date]) is Australian. [The applicant] and [Ms A] have two children, [Child 1], aged [age] (DOB: [date]) and [Child 2], aged [age] (DOB: [date]). Both children were born in Australia.

2. According to Departmental records, the applicant first arrived in Australia [in] November 2002 as the holder of a Special Category (Subclass 444) visa. A Special Category visa is generally granted to New Zealand citizens on arrival and allows them to visit, study, stay and work in Australia until they depart. The applicant has not departed Australia since [November] 2002, and it is this Special Category visa that has been cancelled and is under review.

3. As indicated in the Notice of Intention to Consider Cancellation (‘NOICC’) sent to the applicant and dated 19 November 2019, the Department was made aware of possible grounds for cancellation of the applicant’s Subclass 444 visa under s.116(1)(e) of the Act. The NOICC indicated that information was provided to the Department confirming the applicant was charged with [specified offences] [in] June 2019, with a committal mention [in] December 2019.

4. The NOICC also outlined further historical offences whose details were made available to the Department:

Date	Offence	Result
[01]/2017, [Court 1]	[Offences]	WITH CONVICTION. Fined an aggregate of $1000.
[04]/2016, [Court 2]	[Offences]	WITHOUT CONVICTION. The accused is placed on Probation for a period of 12 months to [04]/2017.
[07]/2015, [Court 3]	[Offences]	WITHOUT CONVICTION. Adjourned to [01]/2017. The offender is released upon entering a Good Behaviour Bond in the amount of $100. The offender is to be of good behaviour during the period of the Good Behaviour Bond.

1. The NOICC further provided part of a summary of the alleged facts relating to the then outstanding charges, in which the applicant was named as one of [number] people accused in a case relating to [Mr B] (pseudonym; herein ‘[the victim]’) [in] April 2019. The part summary outlines [details deleted]. The part summary outlines that the applicant was identified through CCTV footage and phone records, with clothing and his mobile devices seized during a search and arrest carried out [in] June 2019.

2. The NOICC noted that the applicant’s criminal history involves multiple offences and that the most recent [charges] indicated an escalation in violence and that the applicant has little regard for the impact of these offences on victims. The NOICC further noted the seriousness of the charges and convictions indicate the applicant has behaved unacceptably in the community and shown disregard for Australian laws, and so it appeared that the applicant’s presence in Australia is, or may be, a risk to the safety of the community, and thus that grounds for cancelling his visa existed under s.116(1)(e)(i) of the Act.

3. The NOICC was sent to the last known address of the visa holder and invited the applicant to respond in writing to the information outlined by the proscribed date. The Department did not receive a response to the NOICC.

4. On 24 December 2019, the delegate issued a record of decision of whether to cancel the visa, finding that the grounds for cancellation under s.116(1)(e)(i) were made out. Having regard to the information before them, the delegate then considered the prescribed circumstances and other relevant matters and concluded that the visa should be cancelled. The applicant was provided notification of the cancellation by mail to his last known address on 2 January 2020.

5. As a result of the cancellation of his visa, Departmental records indicate the applicant was detained under s.189 and taken into custody [in] January 2020, before being transferred to immigration detention. The applicant has been in immigration detention since this date.

6. On 10 January 2020, the applicant lodged an application to review the cancellation decision at the Tribunal, attaching a copy of the Department’s decision notification and decision record.  

7. On 25 February 2020, the Tribunal first invited the applicant to hearing scheduled for 11 March 2020. The applicant sought postponement of the hearing in order to acquire new legal representation; postponement was granted and a hearing rescheduled for 17 April 2020. On 23 March 2020, the applicant was advised that this hearing would take place by videoconference, in response to restrictions on Tribunal operations as a result of the COVID‑19 pandemic. On 30 March 2020, the applicant requested a further two months’ postponement to secure legal representation and the Tribunal granted the request, rescheduling the hearing to 3 June 2020.

8. On 15 April 2020, the applicant’s continuing representative requested access to the written material on file under s.362A, which was granted, excepting redactions of others’ personal information, on 14 May 2020. On 20 May 2020, the applicant’s representative made legal submissions in support of a further postponement request, also attaching the following for consideration:

   ·A letter signed by principal solicitor [Ms C], representing the applicant in his criminal matter, in regard to the charges, dated 1 May 2020.

   ·A certified extract of the [Court 4] register from [July] 2019, being a court order for bail for the applicant.

   ·A notice of alibi dated 23 December 2019.

9. As outlined in the submissions, the representative notes the applicant’s criminal matter is listed for trial in [Court 5] [in] March 2021. The submissions outline the delegate’s reliance on Victoria Police material that does not form part of the brief of evidence and the results of a contested committal hearing held since the cancellation decision was made. [Ms C], as counsel for the applicant, advised that under cross-examination, the police informant conceded that the only evidence tying the applicant to the offending is the complainant’s version of events. The identification of the applicant in the offence through phone records, referred to in paragraphs from the summary of offences relating to the applicant and considered by the delegate, was also put into question.

10. The submissions note the applicant entered a plea of not guilty at the conclusion of the committal hearing, with trial set [March] 2021, and that he was released on bail for he offences, but due to his immigration status remains in immigration detention. The submissions note that, as outlined in [Ms C’s] letter, it is in dispute as to whether the offending event actually occurred, and if it did, whether the applicant was even present during the offence. The submissions request postponement on these grounds of substantial doubt with respect to the alleged offending, as the decision making cannot properly assess the risk to the safety of the community until the offence occurring is irrevocably established.

11. The submissions requested postponement of the applicant’s hearing until after the outcome of his trial, or at least for a period of 3 months, also taking into account difficulties in collecting evidence and instructions during the COVID-19 pandemic.

12. On 21 May 2020, the Tribunal advised the applicant that the three-month postponement request was accepted and the additional submissions for postponement past the trial were noted. On 31 July 2020, the Tribunal sought an update on the applicant’s criminal proceedings and the representative responded on 3 August 2020, noting the trial was set for [March] 2021 and listed for 15 days, requesting the hearing be held after this date. The Tribunal advised this request was rejected on 4 August 2020. On 12 August 2020, the Tribunal invited the applicant to  a hearing on 6 October 2020.

Submissions and evidence considered

1. For the purpose of the hearing the applicant provided submission to the Tribunal by an email dated 5 October 2020 which included the following:

   •Statutory Declaration of [the applicant], dated 5 October 2020

   •Letter of [Ms C], dated 1 May 2020

   •Memorandum of Counsel, dated 16 December 2019

   •Notice of Alibi, dated 23 December 2019

   •Court Order (Bail), dated 19 July 2019

   •Letter of [Mr D], dated 30 September 2020

   •Letter of [Mr E], dated 1 October 2020

   •Letter of [Mr F], dated 1 October 2020

   •Letter of [Ms G], dated 1 October 2020

   •Letter of [Ms H], dated 1 October 2020

   •Letter of [Mr I], dated 1 October 2020

   •Letter from [Pastor J]

   •Birth certificate of [Ms A]

   •Birth certificate of [Child 1]

   •Birth certificate of [Child 2]

   •Birth certificate of [Mr K]

   •Birth certificate of [Mr F]

   •Birth certificate of [Mr I]

   •Summary of Offence of Operation [Code Name 1] and Charge Sheets of [the applicant]

   •Core Brief Material for Operation [Code Name 1]

2. In addition, a letter from [Ms A] dated 6 October 2020 was also provided to the Tribunal.

3. There are no notifications preventing disclosure of any material contained on either the Department or the Tribunal file for this application.

Does the ground for cancellation exist?

s.116(1)(e) - risk to Australian community or individual

1. 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].

2. 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.

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

1. 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, whether the visa holder has a compelling need to travel to or remain in Australia

1. The general purpose of Special Category visas is to allow eligible New Zealand citizens to visit, study, stay and work in Australia as long as they remain a New Zealand citizen. It is applied for when New Zealand citizens arrive in Australia and submit a completed incoming passenger card listing a New Zealand passport.

2. The applicant arrived in Australia with his family [in] November 2002 at the age of [age] years old. His purpose for staying in Australia is to reside, as he has for the past 18 years. The Tribunal notes that the applicant has spent his formative years in Australia. He is in a relationship with [Mr A] with who he has two children. His partner and his children are all Australian citizens. In addition, his mother, [siblings] and his extended family, including uncles, aunts, cousins and grandmother all reside in Australia.

3. The applicant completed all of his schooling in Australia. He claims that it is his and [Ms A]’s plan his children will attend primary school at the same primary school that the applicant attended.

4. Prior to being taken into immigration detention, the applicant was employed as [an Occupation 1] with [Employer 1] as [an Occupation 1]. He had been employed by [Employer 1] since January 2017.  By a letter dated by [Employer 1] dated 5 October 2020 it was indicated that he would be able to recommence his employment with the company upon his release for detention

5. Finally, the applicant belongs to the [Church 1]. Letter from [Pastor J] states that the applicant and his family have been members of the church community since he was 10 years old.

6. Based on the evidence provided the Tribunal accepts and finds that the applicant has strong roots to the community in Australia. As such it gives this consideration considerable weight in the applicant’s favour.    

The extent of compliance with visa conditions

1. As a former Special Category visa holder, no visa conditions were imposed on the then visa holder. The Tribunal places no weight on this consideration in the applicant’s favour.

Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the applicant and other family members

1. It is submitted that the applicant will suffer significant hardship if his visa remains cancelled. He will remain in immigration detention, even though he has been granted bail, pending his criminal trial. Further, if [the applicant]’s visa remains cancelled, he will be removed to New Zealand after his criminal trial is finalised. The Tribunal notes that the applicant has pleaded not guilty to the charges. It is submitted by his representative that the applicants defence that he was not involved any of the crimes as charged against [the victim] as alleged is supported for the witness statements and the evidence given by [the victim] at the committal hearing.  As such, is acquitted or the charges do not proceed or are withdrawn, [the applicant] will still be removed from Australia. he will be removed from the country unnecessarily.

2. It is submitted by the applicant that the most significant hardship he will face if he is removed from Australia is that he will be separated from his two children, [Child 1] and [Child 2]. The applicant has not met his daughter who was born while he has been in immigration detention. If he is removed to New Zealand, the applicant claims that he does not know when he will see his children. The applicant claims that the chances of him returning to Australia are speculative at best. Its claimed that this uncertainty is exacerbated by the current effects of COVID-19 due to the restrictions on travel.

3. Its noted that the applicant has already been separated from his family in detention for over 10 months and likely to remain in detention for a further seven months until the time of his trial. This is in circumstances where the applicant was granted bail on 19 July 2019, on the the following conditions:

   (a) Report to [named] police station on Tuesday and Friday between 6:00am and 9:00pm;

   (b)Reside at [address]

   (c)Surrender all valid passports and any other travel documents;

   (d)Not attend any points of international departure;

   (e)Not to leave the State of Victoria;

   (f)Not contact witnesses for the prosecution other than the information;

   (g)Not to associate with any co-accused;

   (h)Not to leave his place of residence between the hours of 10:00pm and 6:00am;

   (i)To present at the front door of his residence during curfew hours upon request of any member of Victoria Police;

   (j)Not to use drugs of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 without lawful authorisation under the Act.

1. The Tribunal notes that the applicant ability to defend himself at the trial is affected by the fact that he is in detention.          

2. The applicant submits that he has been isolated in dentition due to the pandemic. The applicant’s evidence is that while he has been in detention, he has been visited [Ms A] and [Child 1] visited on a regular basis. They usually visited once during the week and once on the weekend. But as a result of the restrictions arising from the COVID-19 pandemic, the applicant’s only contact with his children is now via FaceTime. They usually FaceTime several times a day.

3. In Re Application for Bail by Fadi Diab[1]  the effect of COVID-19 on bail conditions was considered by Beach JA. His Honour noted that:

   “The relevance of the COVID-19 crisis is that it may make time in custody very difficult and/or significantly more difficult than usual. Moreover, to the extent that correctional facilities are not permitting visitors, there may be greater isolate for those on remand’.

   [1] 2020] VSC 196 at [38].

4. The Tribunal accepts that the applicant’s time in immigration detention under the current circumstances of the pandemic means that he is far more isolated from his family than in normal circumstances. As such, the tribunal places some weight on this consideration in the applicant’s favour

5. Prior to being taken to immigration detention, the applicant provided financial and emotional support to his family. As a result of the applicant being placed in detention his family has suffered significantly as [Ms A] is forced into being a single parent with a newborn. Asesult of the applicant being placed in detention the family no longer receives his income of approximately $1,500.00 per fortnight. As a result, [Ms A] has been forced onto a single mother’s pension. She has been forced to move for her home the applicant and his family to live with her aunty and her [children]. As a result, [Ms A] is now wholly dependent on Centrelink benefits.

6. Based on the above the Tribunal accepts that the applicant has suffered and will continue to suffer significant hardships as a result of his visa being cancelled. As a result the Tribunal places significant weight on this consideration in the applicant’s favour.  

The circumstances in which the ground for cancellation arose

1. The applicant’s visa was cancelled in circumstances where he has been charged with serious criminal offences which involve physical violence to a third party, he has some criminal history and he has been granted bail pending his criminal trial.

2. If the applicant is founded guilty of the pending charges, he is likely to be sentenced to a term of imprisonment of 12 months or more. The Minister would therefore be required to cancel his visa under s 501(3A) as [the applicant] will have a ‘substantial criminal record’.

3. As such, it is submitted by the applicant that to cancel the applicant’s visa should be deferred to allow the criminal process to take its course. It is submitted that this course of action most aligns with the best interests of the children as it avoids the situation where the applicant’s  visa is cancelled, he is acquitted, still removed from Australia but then unable to obtain a visa to return to Australia.

4. Further, the applicant contends that if the charges are unproven (its is his criminal lawyers view that he has an “overwhelming strong” defence case). Then any risk or uncertainty about whether [the applicant] is or may be a risk to the safety of Australia will be more reliably determined after his criminal trial [in] March 2021.

5. Finally, prior to being placed in immigration detention, the applicant was on bail with strict conditions. The Court has therefore assessed the risk based on the evidence before it, consideration of the prosecution case and the requirements under the relevant bail legislation and determined that subject to the imposition of conditions, the applicant is not an unacceptable risk.

6. While the Tribunal notes that circumstances in which the ground for cancellation arose weigh in favour of cancellation, it places great weight in the applicant’s favour not to cancel his visa by reason that the charges are unproven, he appears to have a  strong defence to the charges, he has been granted bail and that the his visa will likely be cancelled under s 501(3A) if the charges are proven.

Applicants past and present conduct towards the Department

1. There is no evidence that [the applicant] has behaved inappropriately towards the Department. The Tribunal places some weight in the applicant’s favour.

Persons in Australia whose visa would be cancelled under s.140.

1. The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s.140 of the Migration Act 1958 (‘the Act”). According to the Departments records there are no person in Australia whose visa may be cancelled under s.140 of the Act.

Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled.

1. Article 3(1) of the Convention on the Rights of the Child (“CRC”) provides that in all actions undertaken by the court concerning children, the best interests of the child must be a primary consideration. The CRC was adopted in 1989 and ratified by Australia in 1990. The applicant has two children in Australia whose interest would be affected by reason of the cancellation of his visa. As such the Tribuinal places considerable weight on the consideration in the applicatns favour.

Any mandatory legal consequences,

1. If the applicant’s visa is cancelled, he will be permanently excluded from a grant of a further Special Category visa. As set out above, s 32(2) of the Migration Act provides that a person will only satisfy the criterion for a Special Category visa if he or she is ‘neither a behaviour concern non-citizen nor a health concern non-citizen’.

2. Sub-section 5(d) provides that a ‘behaviour concern non-citizen’ includes any person who has been removed or deported from Australia or removed or deported from any country. ‘Removed or deported’ from Australia, in the definition of ‘behaviour concern non-citizen’ means removed under s 198 or deported under s 200 of the Migration Act 1958. A New Zealand citizen who has had their visa cancelled will be unlawful and will be subject to removal from Australia. Unless they have another visa, such as a bridging visa, the former visa holder will be removed by the Department either forcibly or as a result of a request by the former visa holder.

3. Accordingly, if the applicant’s visa remains cancelled, he will be required to leave Australia as an unlawful non-citizen. He would also then fall within the definition of a ‘behaviour concern non-citizen’. As a ‘behaviour concern non-citizen’, the applicant would not be able satisfy the criterion in s 32(2)(a).

4. There is alternative criterion under s 32 but this criterion does not apply in these circumstances. Therefore, if the applicant’s Special Category visa remains cancelled, he is unlikely to be able to return to Australia through a special category visa, regardless of the outcome of his criminal trial.

5. The Tribunal notes that the applicant application for a bridging visa was rejected on 4 August 2020. The result of any appeal of this decision would be uncertain.

If the applicant has strong family, business or other ties in Australia

1. The Tribunal has accepted above that the applicant has strong family ties in Australia and as such places considerable weight to this consideration in the applicant’s favour.

2. The applicant’s prospects of returning to Australia on a permanent or even temporary basis if his Special Category visa remains cancelled are speculative or at best uncertain. He may be eligible to return to Australia under a subclass 309/100 partner visa, a subclass 103 parent visa, or a subclass 173/143 contributory parent visa. As to the partner visa, as an Australian citizen, [Ms A] can sponsor him. With respect to the parent visas, the applicant is eligible because he is the parent of an Australian citizen. These visas are not subject to the public interest criteria in Sch 4 of the Regulations, namely public interest criteria 4013 or 4014, which provide for a three-year exclusion period on applications where a visa has been cancelled, but he would be required to meet special return criteria 5002 under cl 309.226 of Sch 2 to the Regulations.

3. The applicant representative submitted that the applicant does not meet any of the skilled migration requirements and the only other visa he is likely to be able to meet would be a visitor visa for the purposes of visiting his family in Australia. However, given the cancellation, he faces the prospect of a three-year exclusion due to the operation of public interest criteria 4013 under cl 600.213(1) of Schedule 2 to the Regulations. It is possible for the Department or the Minister to waive the bar if there are compassionate or compelling circumstances under cl 4013(1)(b) of Schedule 4 to the Regulations. Given applicant’s two children are in Australia, it may be the case that he is regarded as having ‘compelling circumstances. This option is however uncertain.

4. The Tribunal places some weight on this consideration in the applicant’s favour

Other relevant factors

1. Having considered the department file, and the applicant’s evidence to the Tribunal, it is satisfied that there are no other relevant factors in relation to this case. 

2. Therefore, based on the evidence presented to the Tribunal, it finds that the applicant has significant ties to the community in Australia and as a result is likely to suffer undue hardship as a result of the cancelation of his visa. Having considered the serious nature of the charges in light of the fact that the applicant was granted bail and appears to have a valid defence, the Tribunal is of the view that the applicant will suffer significant hardship if his visa was cancelled.

3. Therefore, considering all the circumstances, the Tribunal concludes that the visa should not be cancelled.

DECISION

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

Jason Pennell
Senior Member