2002255 (Migration) - [2022] AATA 2813

2002255 (Migration) [2022] AATA 2813 (14 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2002255

MEMBER:Nicole Burns
DATE:14 February 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 14 February 2022 at 10:50am

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – risk to the health or safety of individuals – criminal history – applicant charged with serious offences – not complying with court orders – family and community support – Australian citizen family members – separated from girlfriend – critical stage of rehabilitation – decision under review affirmed
LEGISLATION
Children, Youth and Families Act 2005 (VIC)
Migration Act 1958, ss 116, 140, 359AA
Migration Regulations 1994
CASES
Briginshaw v Briginshaw [1938] HCA 34
Gong v MIBP [2016] FCCA 561
Tarasovski v Delegate for Immigration, Local Government and Ethnic Affairs [1993] FCA 515
Tien v MIMA (1998) 89 FCR 80
Zhao v MIMA [2000] FCA 1235
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 6 January 2020 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).
The delegate cancelled the visa under s 116(1)(e) on the basis that they were satisfied the applicant’s presence in Australia is or may be, or would or might be a risk to the health, safety or good order of the Australian community or a segment of the Australian community. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 2 August 2021 where he gave evidence and presented arguments about the issues in his case. The Tribunal also received oral evidence from his partner, [Ms A].
The applicant had indicated that [Mr B], Social worker, at [Agency 1] could be a potential witness. At hearing the Tribunal telephoned the number provided at [Agency 1], however it was advised that [Mr B] no longer worked there. The applicant said the last contact he had with [Mr B] was a few months prior to the hearing: he had forwarded him an earlier hearing invitation and [Mr B] had indicated he would be available if the Tribunal called. However, the applicant said he had not advised him of the most recent hearing details. The Tribunal indicated it would consider any letters of support from [Mr B] if the applicant wanted to contact him after the hearing, by 16 August 2021. The applicant provided letters of support after the hearing from others (detailed below) but none from [Mr B], or [Agency…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2002255 (Migration)

Details

AGLC: 2002255 (Migration) [2022] AATA 2813
Case: [2022] AATA 2813
Decision Date: 14 February 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister to cancel the visa of a New Zealand citizen, the applicant. The applicant, who had resided in Australia since childhood, held a Special Category (Subclass 444) visa. The cancellation was based on the delegate's satisfaction that the applicant's presence in Australia posed a risk to the health, safety, or good order of the Australian community, or to the health or safety of individuals, pursuant to section 116(1)(e) of the Migration Act 1958 (Cth). This satisfaction arose from information provided by Victoria Police regarding the applicant's criminal history, including charges and convictions for serious and violent offences, some of which occurred while he was on bail.

The Tribunal was required to determine whether the grounds for cancellation under section 116(1)(e) were made out and, if so, whether the discretion to cancel the visa should be exercised. The legal issue centred on whether the applicant's past offending, and the potential for future risk, justified the cancellation of his visa, notwithstanding his long-term residence in Australia and the presence of his Australian citizen sisters and parents. The Tribunal also considered the meaning of "good order of the Australian community" in the context of section 116(1)(e), drawing on existing case law.

The Tribunal affirmed the delegate's decision to cancel the visa. It found that the applicant's criminal history, particularly the violent nature of his offending, established that his presence in Australia posed a risk to the health and safety of the Australian community. The Tribunal gave no weight to allegations of past associations with gangs. In considering the exercise of discretion, the Tribunal noted the applicant's submissions regarding his long residence in Australia, his family ties, and his efforts towards rehabilitation, including engaging with a youth worker and pursuing a career in music. However, the Tribunal found that the applicant's immediate family members, including his Australian citizen sisters, would not be compelled to return to New Zealand if his visa were cancelled. The Tribunal concluded that the seriousness of the applicant's past offending outweighed the mitigating factors presented.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.Relevant background The applicant is [an age]-year-old man from New Zealand. He last came to Australia [in] January 2017 as the holder of a New Zealand passport, and was granted a Special Category (Subclass 444) visa on that date. He held several Special Category (Subclass 444) visas before that, having come to Australia with his parents when he was around [age] year old. He has two younger sisters born in Australia who are now over 10 years of age and are Australian citizens. The Department issued the applicant two Notices of intention to consider cancellation (NOICCs) indicating that his Subclass 444 visa may be cancelled due to a breach of s 116(1)(e) of the Act. The first notice, dated 5 January 2018, advised the applicant that the Department had received information from Victoria Police that he had been charged with several offences. A second NOICC was issued to the applicant dated 25 November 2019, advising that the Department had received information about his sentence and more offence specific details from Victoria Police. Responses to the NOICC were received dated 23 January 2018, 30 January 2018, 16 February 2018, 9 April 2018, 26 March 2018, 2 December 2019 and 16 December 2019. Supporting documents were also provided to the Department by the applicant’s representative at the time. On 6 January 2020 a delegate for the Minister cancelled the applicant’s Subclass 444 (Special Category) visa under s 116(e) of the Act, satisfied that his presence 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. That decision is the subject of this review. The applicant provided a copy of the decision to the Tribunal on review. RELEVANT LAW Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(e). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.Section 116(1)(e) - risk to Australian community or individual 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].

Evidence

Evidence Before The Court

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.CONSIDERATION OF CLAIMS AND EVIDENCENOICC In this case, the delegate was satisfied the applicant 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 based on information provided by Victoria police about his criminal record, including for violent offences as set out in a NOICC sent to the applicant on 5 January 2018. That notice records that on 15 December 2017 Victoria Police advised the Department that the applicant had been charged with the following offences: The NOICC records further that Victoria Police had advised the Department as follows:·The applicant was released on bail as result of the charge of Intentionally Cause Injury and Robbery [in] October 2017.·Whilst on bail he was charged with further offences including Intentionally Cause Serious Injury – Gross Violence, Robbery and Commit Indictable Offence Whilst on Bail [in] November 2017.·He was convicted of 2 counts of Recklessly Cause Injury and 2 counts of Commit Indictable Offence.·Whilst on bail, he was convicted of 3 counts of Robbery and one count of Intentionally Cause Injury at the [Court] [in] December 2017. He was released on a youth supervision order for 12 months and required to participate in drug and alcohol counselling as directed.·He was scheduled to appear at the [Court] to face further criminal charges of Commit Indictable Offence Whilst on Bail, Robbery and Intentionally Cause Serious Injury- Gross Violence [in] March 2018. He was bailed to [address] with special conditions, including not to leave his residence between 8pm and 6pm except in the company of his parents and not to associate with the co-accused. In a submission provided in response to this notice the applicant’s then representative acknowledged the criminal matters and that the charges were serious but argued that the applicant was not a risk to justify cancellation as per s 116(1)(e), discussed in more detail below. At hearing the Tribunal discussed this information contained in the first NOICC with the applicant who confirmed his criminal history as set out in it. The applicant was sent a second NOICC dated 25 November 2019, which covered new information pertaining to the sentences he received and further details about some aspects of his offending. According to the delegate, the 25 November 2019 NOICC superseded the earlier notice (although the applicant’s responses to the first notice were taken into account in the delegate’s cancellation decision).

Decision

Reasons for decision

The Tribunal notes the basis for the non-compliance which led to the delegate being satisfied there were grounds for cancellation was based on information set out in the second NOICC, but included consideration of the applicant’s and his then representative’s responses to the first NOICC. Review of the cancellation decision In his oral evidence to the Tribunal, the applicant confirmed his criminal history as set out in the notices. He said he spent [number] days on remand at [a named] juvenile detention centre in late 2017 and lived with his parents at their rented accommodation in [Suburb 1] during his 12-month Youth Attendance Order, which expired [in] March 2019. He said he abided by the conditions of that order, including curfew and attending supervision appointments with youth justice officers. The applicant said he has had no further issues with the police since his most recent arrest and sentence. He told the Tribunal he had been meeting a youth worker – [Mr B] - at [Agency 1] and getting support, such as help with writing resumes and financial support to help with his career goals in the form of [equipment] for music production – a career path he wants to pursue. The applicant said he was born in New Zealand, to parents who were born in [Country 1]; he moved to Australia with his parents when around [age]; and he has two younger sisters who were born in Australia who attend school. His parents work full time in a [business], as he does on a casual basis, ‘on and off’. He still lives at home in [Suburb 1] with his parents but also sometimes stays at his girlfriend’s parents’ house in [Suburb 2]. He noted that it is good to get out of the [Suburb 1] area, away from negative influences there. However, he feels guilty if away from his parents for too long. The applicant said he left school in early 2017 ([Grade]), coinciding with the time of his offending. He started at a [regional] college then went to [College 1], which also did not work out. At that time he was not doing well mentally, and there were gangs in the area where he was living ([Suburb 1]). The applicant said he has changed now and does not even drink alcohol, which was linked to his index offending. At [youth justice detention] he did not undertake any drug and alcohol programs or offence specific programs, instead attending school there. When asked, he said he did not undertake a risk assessment (related to risk of future offending) whilst there (or elsewhere on remand). In terms of his mental health, the applicant said he underwent counselling when on his supervision order (which expired [in] December 2018) and the attendance order. He still struggles mentally (he did not elaborate) but said he cannot afford ongoing counselling. He said he is distraught at the thought of having to go to New Zealand where he has no support. His parents and sisters would not go to New Zealand with him, noting his sisters are doing well here. Although he has some aunts, uncles and cousins in New Zealand, he does not know them. His grandparents live in [Country 1], and he (and other family members) visit them regularly from Australia (via New Zealand).

Ratio Decidendi

Legal Principle Established

The Tribunal has formed the view that the applicant’s presence in Australia may or might be a risk to the Australian community or a segment of the Australian community for the reasons above, including based on the seriousness of his past offending, which included violent offending: not because of allegations of past associations with gangs. It gives this information from Victoria Police no weight in determining the grounds for cancellation and in relation to exercising its discretion that the visa remain cancelled. Consideration of discretion There are no matters specified in the Act or Migration Regulations 1994 (Cth) 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’. In their March 2018 submission to the Department, the applicant’s then representative argued the applicant’s visa should not be cancelled for several reasons, including because he is a minor and has been in Australia since one year of age. As noted, the applicant is now [age] years of age; nonetheless the Tribunal will consider the applicant’s younger age where relevant below. 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: The applicant first travelled to Australia from New Zealand when he was around one year old with his parents, and has spent his entire life here, undertaking school and other social, religious and community activities. His parents and two younger sisters reside in Australia: his parents as holders of Special Category (Subclass 444) visas and his sisters as Australian citizens (having resided here for at least 10 years). In the response to the NOICC the representative submitted that the applicant is a minor who has been here since the age of [age] and his parents and sisters would be forced to up-root their lives and return to New Zealand if the visa holder’s visa is cancelled, which would negatively affect them, particularly his two younger sisters. However, at hearing the applicant said his parents and sisters will not accompany him to New Zealand if his visa remains cancelled, and whilst he is still of a younger age, he is [age] and no longer a minor. Therefore, the Tribunal does not accept that his immediate family members would be forced to return to New Zealand if his visa remains cancelled. A list of the applicant’s immediate family members and extended family members who reside in Australia was included in the representative’s submission to the Department as follows: his parents, two sisters, grandparents, [and specified family members]. The representative stated that all are holders of Subclass 444 visas except his sister [Ms O], who is an Australian citizen given she was born here and resided here for 10 years, and his other sister was due to become an Australian citizen on [date]. This date has now passed and the Tribunal accepts the applicant’s sisters are likely to be Australian citizens.