2002255 (Migration)
[2022] AATA 2813
•14 February 2022
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 affirmedLEGISLATION
Children, Youth and Families Act 2005 (VIC)
Migration Act 1958, ss 116, 140, 359AA
Migration Regulations 1994CASES
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 1235Any 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 1].
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].
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 EVIDENCE
NOICC
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:
25/03/2017
Recklessly Cause Injury
25/03/2017
Robbery
26/10/2017
Intentionally Cause Injury
26/10/2017
Robbery (2 counts)
11/11/2017
Intentionally Cause Serious Injury
11/11/2017
Intentionally Cause Injury
11/11/2017
Commit Indictable Offence Whilst on Bail
11/11/2017
Robbery
11/11/2017
Intentionally Cause Serious Injury- Gross Violence
23/11/2017
Recklessly Cause Injury
23/11/2017
Commit Indictable Offence Whilst on Bail
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).
In the 25 November 2019 notice, it is recorded that [in] March 2018 Victoria Police informed the Department about the applicant’s criminal history in Victoria as follows:
Court and date Offence Result [Court 1] – [March] 2018 Commit Indictable Offence Whilst on Bail
Robbery
Intentionally Cause Serious Injury – Gross Violence
Unlicensed Driving
Use Unregistered Motor Vehicle - Highway
With conviction, released on Youth Attendance Order – 12mths to [March] 2019
Released – good behaviour bond, $100
[Court 1] – [in] December 2017 2x Recklessly Cause Injury
2x Commit Indicatable Offence Whilst on Bail
3x Robbery
Intentionally Cause Injury
With conviction, released on Youth Supervision Order, 12 mths to [December] 2018
That notice also records that Victoria Police had provided to the Department further details about the events which occurred on [date] November 2017 and resulted in the applicant’s conviction of ‘Intentionally Cause Serious Injury - Gross Violence’, as follows:
You and your co-accused were walking along [specified road] at approximately 11 pm on [date] November 2017;
You were on bail at the time and breaching your curfew conditions;
You and your co-accused came across the victim who was walking home;
You and your co-accused sat on the footpath with the victim to have a chat and a smoke;
At approximately 11:20pm the victim stood up and started to walk towards his home;
You followed the victim, grabbed him by his jacket and pulled him approximately 20 metres to a side street and swung the victim to the ground;
You kicked the victim to the jaw with sufficient force to knock him unconscious;
Two witnesses saw the victim on the ground and stopped to assist him and call emergency services;
The victim was treated by ambulance members prior to being transported to Hospital. The victim was found to be having a heart attack (acute coronary syndrome), injuries to his face and persistent bleeding from the upper airways being his nose and mouth;
In hospital, the victim was found to have the following injuries:
·Traumatic head, brain and all face injuries with multiple complex facial bone fracture dislocations;
·A complete collapse of the nasal bones, eye sockets and the bony structure separating the nasal cavity from the brain resulting in the depression of the mid face;
·The victim suffered life threatening complications and was placed in a coma in an intensive care unit for over a week;
A Forensic Physician reviewed the victims medical notes and found that if he had not received treatment by ambulance and hospital staff, he would have deteriorated and died;
The victim continues to have ongoing impacts to his health and daily life and relies on friends to assist him with day-to-day activities due to memory problems suffered as a result of the attack.
You later admitted to Victoria Police that you purposely dragged the victim 20 meters to a side street so passing witnesses on the main road would not call police and to remove the victim out of CCTV view. You further admitted the motivation for the assault was to rob the victim of his pocketknife.
Victoria Police have advised that your offending involved significant levels of violence often resulting in the victims' losing consciousness, the attacks are unprovoked, the victims are randomly targeted and you have taken the lead role in instigating the offending, often as a member of a group of between two and six individuals.
As a result of your criminal convictions you were sentenced to a Youth Attendance Order for 12 months. A Youth Attendance order is an alternative to detention for children aged 15 years or over at the time of sentencing and it is the most intensive community-based supervisory order available under the Children, Youth and Families Act 2005.
According to the delegate (expressed in the second NOICC and decision to cancel), the applicant’s history of committing serious offending involved: significant levels of violence, which resulted in his victims being knocked unconscious and placed in an induced coma; showing a disregard for the safety of his victims; a proven criminal history; and unwillingness to comply with court orders indicating a likeliness of him re-offending. This led the delegate to conclude that the applicant’s ongoing presence in Australia is or may pose a risk to the safety of the Australian community.
The Departmental file contains a Victoria Police criminal history report dated [in] December 2017 in respect of the applicant, details of which were set out in the first NOICC and at the time listed pending charges, as well as copies of the applicant’s charge sheet dated [in] November 2017. It also contains a copy of the applicant’s Victoria Police criminal history report dated [in] January 2018, details of which were included in the second NOICC.
Response to the notices
The applicant (and/or his then representative) responded to the first NOICC on 23 January 2018, 30 January 2018, 16 February 2018, 26 March 2018, 2 December 2019 and 16 December 2019.
The Department received an email from the applicant’s representative dated 2 December 2019 in response to the second NOICC. In it the representative stated that the new notice relates to the nature of offending referred to in the first notice, and that they were not in a position to respond because they had not been able to contact the applicant or his mother despite repeated attempts. In written correspondence to the Department dated 16 December 2019 the representative advised that their firm[1] no longer acts on behalf of the applicant for immigration matters, reiterating that they had been unable to contact the applicant or his mother regarding the 25 November 2019 NOICC.
[1] [Business name]
In his letter provided in response to the first NOICC dated 23 January 2018, the applicant stated, in summary:
·He is [age], of [Country 1] descent, whose parents moved from New Zealand to Australia when he was one so they could provide a better life with more opportunities.
·Since moving here Australia is the only home he has ever known.
·His parents, siblings and close immediate family all reside in Australia and [Country 1].
·For most of his stay in Australia he has complied with visa conditions and does not believe he is a risk to the health, safety or good order of the Australian community or individuals.
·He was raised in the Christian faith and values; his family attend a local [Church 1] where his parents have leadership roles; and his sisters look up to him to be their role model.
·He found himself mixed in with the wrong crowd, which led to devastating and life changing decisions which he regrets and is remorseful about.
·Being detained [in youth justice] was a reality check; he had never been away from his family before and realising he was alone he ‘turned his faith to God’.
·He is not a risk, but simply a young man who made a terrible decision and has since taken measures to avoid making such decisions in the future.
·He feels sick when he thinks of what he did to the victim.
·He is not aware of any family who still reside in New Zealand and would be unable to relocate alone. Further, being thrown into a foreign country he left when a child would cause undue stress for him, and his parents would be without their son and sisters without their brother.
In an email to the Department dated 30 January 2018 the applicant’s representative attached several documents and letters of support, many of which appear to have been addressed to [Court 1] in respect of the applicant’s criminal matters. These documents include as follows:
·A copy of a letter from [Dr C], GP, dated 24 November 2017. [Dr C] states that he saw the applicant on 12 October 2017 for his anger, stress and anxiety, and referred him to a counsellor ([Mr D]).
·A copy of the applicant’s GP Mental Health Treatment plan, [from a named Medical Centre], dated 12 October 2017. In it the applicant’s diagnosis is recorded as mixed anxiety and depression.
·A copy of a letter from [Mr D], Mental Health Social worker, dated 30 November 2017. It states the applicant was referred by his GP under a Mental Health Treatment plan; he had an initial session on 19 October 2017; he reported anxiety due to fighting in school, society, and about his future; and said he wanted to continue psychotherapy to overcome his anger issues.
·A copy of a letter from [Ms E], student engagement counsellor, [College 1] dated 24 November 2017. In it she states that the applicant started [Grade] on 17 July 2017; he has engaged in counselling about his well-being; he wanted to explore alternative education settings; and she told his mother to encourage him to set up a mental health care treatment plan through his GP.
·A copy of a letter from [Ms F], student engagement counsellor, [College 1] dated 15 February 2018.
·A copy of a brain quiz report and notes by student engagement counsellor, [College 1], dated 10 October 2017.
·A copy of a letter from [Mr G], Team Leader, [Ms H], Literacy Teacher and [Mr I], Community Services Teacher, [College 2], dated 13 December 2017. The teachers describe the applicant as a pleasure to work with over the past month at [College 2] and were highly optimistic about his rehabilitative prospects.
·A copy of [College 2] monthly education report dated 14 December 2017.
·A copy of [College 2] student of the week certificate awarded to the applicant, dated [in] December 2017.
·A copy of a letter from [Reverend J], [Church 1] dated 26 November 2017.
·A copy of a letter from [Ms K], Case worker, Youth Justice, Department of Justice and Regulation, dated [in] January 2018. She described the conditions attached to his orders, bail conditions and other relevant matters, noting that he has attended supervision appointments, remained in contact, undertaken assessments when required (for example drug and alcohol assessment) and engaged positively overall.
The applicant also provided the following letters of support from relatives in Australia and community members:
·A copy of a letter (undated) from the applicant’s parents. In it they state that whilst they totally disagree with their son’s behaviour, they know he is a great and talented young man who was involved with the wrong company. They note that since his release from detention in recent weeks his structure and attitude have significantly improved, and he shows true remorse. They are concerned that if he returns to New Zealand with no direct family contact he will have no one to support him mentally, financially and physically; he is still young and needs a lot of help and support from his parents and family.
·A copy of a letter (undated) from [Ms L], [from Welfare Service 1]. In it [Ms L] states that they have known the applicant since he was a toddler; he has grown into a talented, humble, independent young man; he attends [Church 1], and volunteers his time and has been the lead piano player for the church choir since he was 13; he is also involved in church youth ministry and youth sporting events, fundraisers, youth rally and youth plays; he played on the [sports] team; he has displayed leadership skills and qualities and does not shy away from helping others. [Ms L] goes on to state that in recent times the applicant was caught up with less favourable influences, which is out of character; he has expressed deep remorse since his release from [youth justice centre] and expressed interest in youth conferencing in an attempt to apologise to the victims; and he is not a risk or threat to the community and with continued family support, they have full confidence he will continue to make positive choices and offer support to his peers, and make better choices.
·A copy of a letter from [Ms M], [sport 1] Team Manager, dated 22 January 2018. In it she confirms the applicant played for [Club 1] team for 2017 (she was the manager), and was selected for [Club 2]. She states that he was a strong leader who boys looked up to; that he mentors younger kids around the [sport 1] scene, and she believes he can go a long way with a [sport 1] career if he stays focused.
·A copy of a letter (undated) from the applicant’s mother ([Ms N]). She states that they arrived in Australia in October 2003 and the applicant celebrated his [number] birthday that year. He has lived his whole life in Australia where they came for a better life. However, he started to get into trouble in 2017 because he hung around with the wrong group of friends. His mother states that she was happy when her son ended up in [youth justice centre], noting it was a wakeup call for him and he has now realised what he did was very wrong and unsafe for the community. [Ms N] believes everyone deserves a second chance and the applicant is only a young kid; he has two younger sisters born in Australia; before he got into trouble he was a humble kid with many talents – for example, a piano player for the church community and he [played in a representative sport 1] team. She states that she and her husband do not have any siblings in New Zealand to support him; that he is a very different person now that he has learned so much from his time in [youth justice detention]; and he told her he will never go back to the way he was and he is not going out at night anymore.
·A copy of a letter from [Reverend J], [Church 1], dated 23 January 2018. In it the reverend confirms the applicant has been attending his church for four years; that he and his family have strong faith in God and are well prepared Christians; that he grew up in a Christian environment and is a very reliable person within his family and church programs; he is the leading piano player with the church choir, secretary of the youth group, and helps out with Sunday school programs; and he is a leader and sets good examples for his younger brothers and sisters in the church. He notes that sometime one can get themselves in the wrong place at the wrong time; nonetheless he strongly ‘recommends’ that the applicant is one of the finest young men, a son, a brother and a friend.
On 6 January 2020 the delegate decided to cancel the applicant’s visa. In the decision record the delegate noted the matters set out in the second s 107 notice (which superseded the first) and concluded that the applicant did not comply with s 116(e) of the Act. Having found that grounds existed for cancellation, the delegate then considered whether the visa should be cancelled, including considering the applicant’s response, the representative’s submissions about such matters and various letters of support. The delegate recorded that, having weighed all the relevant factors, he was satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel visa.
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).
The applicant told the Tribunal if he has to go to New Zealand he will break up with his girlfriend, who he has been in a relationship with since they were around [age] years of age, noting it would not be fair on her to stay together. He added that she hates talking about it.
In her oral evidence to the Tribunal the applicant’s partner, [Ms A] said she had been in a relationship with the applicant for five years, including during the time he offended, and believes he has changed his attitude and matured. He no longer associates with negative peers and is now focused on saving for a car.
[Ms A] said she is a New Zealand citizen who came to Austraia with her parents and siblings ([number] at the time of hearing) when she was around [age] years of age. She was unsure of her and her parents’ visa status in Australia.
If the applicant has to leave Australia, [Ms A] said she will be really affected as they have dated from a young age, she does not have many friends in Australia, and he is her ‘go to’ person.
[Ms A] reiterated these sentiments in an email she sent to the Tribunal after the hearing, dated 29 August 2021, submitting as follows:
·She has been with the applicant for over five years and was with him before, during and after all ‘altercations’ he has had.
·When they began their relationship the applicant was an outgoing and determined individual who led by example and always had a smile on his face. However, she noticed changes when he started hanging around a certain group of friends. At that time he was going through family difficulties, was not in the right mindset, and wanted to be out of the house all the time.
·He committed serious offences and she was disappointed and surprised when hearing about them. From then to now he has had no contact with any past friends who did have a big influence on him, and he does not affiliate with any gang whatsoever. He has a small circle of friends who he calls his family who help and support him.
·The applicant goes to church more often to support his family and plays and teaches piano voluntarily.
·When he was working he helped her family – a family of [number] – and his own family. He has found it difficult to find ongoing jobs due to COVID-19 but when he worked he saved every week.
·He is a very talented self-taught musician who can sing, rap and play musical instruments. She sees huge potential in him.
·[Ms A] states the applicant is her right hand, her go to person and she would not know what to do without him. She has been with him from a young age, does not know anything but him, and wants to be like that for the rest of her life. He has always been there for her and makes her smile everyday. They know and love each other better than anyone else and would love to continue their relationship in the near future.
·Before the applicant wanted to do whatever he wanted and did not care about the consequences; he was lost, distracted, with many temptations around him. However today her partner helps his family – as the eldest – to make sure they are stable.
·He demonstrates he is capable of being a role model, especially to his siblings and has ‘proved major improvements’ from then to now.
·He is determined to reach his goals (such as furthering a music career); has a more mature focused mind; and everyday tries to be a better version of himself.
After the hearing the applicant provided an (undated) letter to the Tribunal, in which he states as follows:
·He never forgets his troubled past; the shame and guilt he carries to this day and made him question who he is as a person, as an older brother and a family member. His past never leaves him and is what keeps pushing him to never go back.
·He is bad at talking about himself because he has always known actions spoke louder than words.
·He started to better himself by going back to church and youth and choir again, and started new social media to make sure he surrounds himself with people he needs.
·It was a massive shock when the church youth heard about him being on remand in [detention] as he was never known as anything but a clown, a person who loves to laugh and who made sure everyone around him was okay. He lost many good friends, and was seen as a bad influence; he was not just punished by the court but in his life (and mentally) and it has never ended.
·The guidance, love and support of his family and girlfriend kept him strong and pushing to be a better person; they are the ‘why’ – why he should stay out of trouble, why he does not need bad friends and so on . If he is sent away from his home in Australia he would not have his ‘why’ and does not see a reason to be alive. He has a full life ahead to show and prove why he is a helper and positive character in this society.
·The person he is today strives to be better to prove not only to society but himself and his loved ones that his past does not make him the person he is today. He hopes he can continue to keep the support and guidance he needs to maintain being the best he can and wants to be.
Other material the applicant provided to the Tribunal post hearing included:
·A typed letter (undated) from the applicant’s aunt and uncle ([named]) requesting the applicant be allowed to stay in Australia, believing he has made good progress and turned away from his troubled past. As he needs further progress in his choices and way of life, they believe he should be allowed to remain in Australia where he has family support and guidance; he does not have immediate family in New Zealand or [Country 1]; they believe he would be on a downward spiral and may revert back to unacceptable ways if he leaves; and at this important stage of his life he needs to be with immediate family to assist him with his transition to adulthood.
·A typed letter from the applicant’s parents dated 13 August 2021. In it his mother states she is a member of the [specified] Church Women’s community and was recently chosen to represent [her local] community in [Country 1]. Further, she states that the applicant is her eldest son and they arrived in Australia in October 2003; he turned [age] that same year; he has lived his whole life in Australia; they came for a better life, however in 2017 he began keeping company with the wrong group of friends and this lead to his offending; she was happy when he ended up in [detention] because it was a wake up call for him; and he has realised what he did was very wrong and she can see he is a changed person who wants to do well in life. Additionally, she states that he has two younger sisters who were born in Australia; before he got into trouble he was a ‘humbled [sic] kid with many talents’, such as playing piano for the church community and he [played in a representative sport 1] team. She goes on to state that the applicant has been doing well since 2017; he does not go out at night anymore and does not associate with any of his old friends or acquaintances; he spends most of his time with his sisters and helps them with various things, helps around the house, and attends church with them every Sunday. He completed a drug and alcohol course and attends counselling regularly for mental health treatment; before his offending she was close to him, then he drifted away, however lately they have become close again. She states that her greatest concern if he goes to New Zealand is that he would have no family, no job to earn an income and no home to live in; he would essentially be homeless and destitute, as they have no family or friends in New Zealand who would be able to take him in till he found his feet; and that being deported to a foreign country which he has never known would cause him to suffer.
·A typed letter from the applicant’s sister, [Ms O] (undated) who describes the applicant as her best friend, and speaks of his support to her and her sister. She states that when he committed the crimes he was young and surrounded by the wrong group of people; however over the past four years he has learnt from his mistakes and bettered himself. Further, whilst in Melbourne he has support, family and a home, and love; he has no one, no guidance and no home in New Zealand. She adds that she has witnessed his motivation, dedication, passion and kindness towards people; his past and bad decisions have made him become a better person; and his family in Australia will help him and keep him on a ‘bright and better’ track.
Does the ground for cancellation exist?
The Tribunal has considered the information contained in the NOICCs, the applicant and his then representative’s responses to the notices, the applicant’s oral and written evidence to the Tribunal, the applicant’s partner’s oral and written evidence to the Tribunal, the letters of support provided from family and community members, and other relevant material before it to assess whether the grounds for cancelling the visa are made out.
In doing so, the key question to consider is whether there is sufficient evidence to reach a real state of satisfaction that incorrect information was provided. It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context. However, where, as in visa cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister (or on review, the Tribunal). In Zhao v MIMA (Zhao), the Court stated:
The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show because why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[2]
[2] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32]
The applicant’s criminal history including for violent offences in Australia as detailed in the notices is not in dispute. The applicant acknowledged as such in his response to the first NOICC and in his oral and written evidence to the Tribunal. He does not agree he poses any future risk to the Australian community (or a segment of the community) however, noting (among other things) that for most of his stay in Australia he has complied with visa conditions; he has been raised a Christian and regularly attends church; and has taken steps to ensure he does not reoffend including not associating with negative peers and not drinking alcohol. He is remorseful and paints himself (as do others) as a young man at the time of his offending who made terrible decisions, influenced by others.
Having regard to the applicant’s criminal history in Victoria, the Tribunal finds he has been convicted of several offences which took place in around 2017, including convictions for Recklessly Cause Injury, Intentionally Cause Injury, Commit Indictable Offence Whilst on Bail, Robbery, and Intentionally Cause Serious Injury – Gross Violence. The latter offence related to an attack by the applicant and his co-accused on a stranger in Melbourne in November 2017 that resulted in serious injuries (and the victim was placed in a coma) as detailed in a report provided to the Department from Victoria Police, set out in the second NOICC. The applicant committed this offence whilst on bail, which shows a disregard for Australia’s laws. He had been charged for assault another time: in both instances targeting strangers with violence. He was convicted of several charges including those listed above and released on a 12-month Youth Attendance Order from [detention], which expired [in] March 2019. He claims, and in the absence of contrary information the Tribunal is willing to accept, that he abided by the relevant conditions attached to that order and engaged with relevant support through the youth justice system. There is no indication of further offending since and as noted the applicant and his partner, parents, sisters, reverend from his church, and other family members claim he is changed and no longer a risk to the Australian community, or a segment of the community.
The Tribunal acknowledges the applicant’s claims he has changed, matured and is remorseful, supported by evidence from his partner and other family and community members (including the reverend from his church), including more contemporaneous letters of support from his partner, parents, aunt and uncle and one of his sisters provided post hearing along with a letter from the applicant. In it the applicant (and others) emphasises, among other things, the support he now receives, from family, his partner and the church and how crucial that support is to him in order to continue to ameliorate any risk of future offending.
The Tribunal accepts the applicant’s partner, parents, close family members and reverend from his church (among others) genuinely believe he has changed, as possibly does the applicant, and he has put in place measures to reduce the risk of future reoffending such as not associating with negative peers and avoiding alcohol. Further, as noted, there is no indication of further offending, and the Tribunal accepts when detained at [a youth detention centre] the applicant engaged with schooling and obtained relevant support, including for his mental health issues, and thereafter appears to have complied with the requirements of his now expired Youth Attendance Order, as submitted by the representative in response to the first NOICC. Nonetheless, not a great deal of time has transpired since that order expired in order to consider his offending is behind him. As well, his criminal history involved instances of serious violent offending – unprovoked attacks on strangers – including whilst on bail for similar offences. Whilst there may have been some extenuating circumstances as submitted, such as the applicant experiencing mental health issues and affiliating with negative peers at the time, the Tribunal does not accept that such considerations explain his actions entirely, particularly noting comments from Victoria Police that the violence was significant and the applicant had taken a lead role in instigating the offending (as set out in the second notice). For these reasons, the Tribunal considers the applicant’s presence in Australia may or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community.
In reaching this conclusion the Tribunal has had regard to the written submission provided by the representative in their response to the first NOICC. In it the representative argued, among other things, that the Tribunal must: reach a reasonable state of satisfaction to cancel the visa; and be aware of the gravity of a cancellation decision in this case and of questions around the risk young offenders pose. The representative argued that s 116(1)(e) is not enlivened in the applicant’s case, noting the high degree of satisfaction required to decide to cancel a visa. They contend in this respect that Departmental policy – which states that for the purposes of s 116(1)(e) there need only be a risk, not a high or extreme risk to enliven the ground for cancellation – is at odds with longstanding judicial authority[3] as to the state of satisfaction that must be reached by decision makers in deciding on the cancellation of a visa. Such judicial authority indicates, it is submitted, that the decision maker arriving at a state of ‘reasonable satisfaction’ must apply a standard of proof that is tailored to the gravity of the administrative task and the consequences that flow from it.
[3] For example Briginshaw v Briginshaw [1938] HCA 34, and Tarasovski v Delegate for Immigration, Local Government and Ethnic Affairs [1993] FCA 515
Other arguments raised in the submission relate to the fact the applicant is (or was at the time) a child rather than an adult and therefore consideration of Australia’s obligations to a child under the Convention on the Rights of the Child (CRC) was required. Additionally, the representative submits that whilst acknowledging the serious nature of the applicant’s convictions and charges as set out in the first NOICC, his behaviour has to be viewed in light of the principles relating to youth offending as set out in the Children, Youth and Families Act 2005. These principles are informed by the precept that young offenders are uniquely capable of rehabilitation and pose no necessary ‘risk’ to the community; and that the core sentencing principle regarding young people is that of rehabilitation, it is submitted.
The Tribunal has had regard to these submissions, which include requiring the Tribunal to reach a reasonable state of satisfaction to cancel the visa, to be aware of the gravity of cancellation decisions and of issues around the risk young offenders pose. It has also had regard to the applicant’s assertions (and those made by his partner, family, relatives and church members) that he is no longer a risk and that he has put in place measures to ensure he will not be a risk to the community in the future.
As to the level of satisfaction required, as noted earlier there is case law – Zhao – that indicates a real state of satisfaction as to whether the grounds for cancellation are made is required. With respect to the level of risk required to enliven this ground in the context of s 116(1)(e), the Tribunal notes there is no definition of such in the Act. Nonetheless, the inclusion of the words ‘…may be, …or might be’ a risk indicates to the Tribunal that the threshold level of risk in terms of s 116(1)(e) is not a particularly high one: it is simply that 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 the applicant’s criminal history, which includes serious violent offending against community members, combined with the fact that not a substantial amount of time has passed since he has his order ceased, 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.
Accordingly, the Tribunal is satisfied the ground for cancellation in s 116(1)(e) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
Allegation of gang affiliation
Before considering whether the visa should be cancelled, the Tribunal notes in this case the Departmental file contains information from Victoria Police indicating that the applicant may have links to gangs in Victoria, including (allegedly), self-disclosure of such. The information was included in the report to the Department from Victoria Police dated [in] March 2018, but not referred to in the NOICC (or the cancellation decision record). In summary they stated that:
·The police have serious concerns about the applicant remaining in Australia for several reasons, including because he has identified himself as being part of a gang.
·His offending has been committed with other gang members.
·[In] September 2018 the applicant and his co-accused were on a bus wearing items of [specified] clothing to indicate their association to an informal street gang known as ‘[Gang 1]’, a NZ based gang based on members being of [Country 1] heritage. Victoria Police do not believe there is any association with the New Zealand based gang. The applicant and co-accused have used the same gang name because they are of [Country 1] heritage. Both have stated to police that they are part of [Gang 1].
The Tribunal discussed this information in general terms with the applicant at hearing, explained its relevance and consequences to the review, and invited his comments or response to it, pursuant to s 359AA of the Act (and outlined various options to respond). He requested a brief adjournment to consider the information, which was granted. When the hearing resumed, the applicant said he did not want to make any comments in response to the information, either then or later.
The Tribunal has considered this information from Victoria Police indicating that the applicant may have been linked to a gang in the past. It seems to rely largely on self-reports by the applicant (and his co-accused), and the police indicated they do not believe they are associated with the New Zealand based gang. According to other information provided by Victoria police (as set out in the NOICCs and detailed earlier) much of the applicant’s offending in around 2017 occurred in the context of groups. There is no indication that this has continued and the applicant (and his partner) assert that he has cut contact with his past associates in this respect, which the Tribunal accepts.
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.
In his response to the NOICC the applicant stated, among other things, that he was raised in the Christian faith and values; his family attend a local [Church 1] where his parents have leadership roles; and his sisters look up to him to be their role model. In his letter to the Tribunal the applicant indicated he has started going back to church and choir.
The Tribunal accepts the applicant wishes to remain in Australia for several reasons including due to the presence of his immediate family – that is, his parents and two younger sisters – as well as several extended family members, some of whom have provided letters of support. It accepts his departure would have an adverse impact on his immediate (and extended) family members here. It also accepts he has reengaged with his church in Australia although notes he can engage with church in New Zealand.
The Tribunal also accepts he has limited family support in New Zealand, which may make moving there difficult and lonely, at least initially. In response to the NOICC it was submitted the applicant had no family or relatives in New Zealand, however, at hearing he indicated he has some aunts, uncles and cousins although he has no contact with them. When asked if his parents are in touch with them, he was unsure whether or not they are. Even taking into account his younger age, and the difficulty of leaving his family and moving to New Zealand with limited family support, the Tribunal notes that nonetheless he is now an adult, with some education (to [Grade]) and some work experience.
The applicant told the Tribunal if his visa is cancelled he would be separated from his girlfriend, who is a New Zealand citizen. In her oral and written evidence [Ms A] did not indicate whether or not their relationship would cease if the applicant’s visa remains cancelled (and he returned to New Zealand); instead she spoke about the adverse impact if he has to leave, noting, among other things that they have been in a relationship since they were young and he is her ‘go to’ person and ‘right hand’. The Tribunal accepts that whilst it appears there would be no immigration restrictions to [Ms A] moving to New Zealand given she is a national of that country, if the applicant were to leave Australia this may lead to their separation.
There is nothing before the Tribunal to indicate the applicant’s partner and family could not visit the applicant in New Zealand in the future and he may be eligible to make applications for other visas, although there can be no guarantee that a visa would be granted to him in the future and any visa assessment is likely to include character considerations.
Taking into account these considerations, the Tribunal does not consider the presence of his partner, immediate family in Australia, church community in Australia, and limited familial contacts and support in New Zealand constitutes a particularly compelling need to remain in Australia.
The extent of compliance with visa conditions: It has been submitted that the applicant has complied substantially with visa conditions throughout his life, being the holder of a number of Special Category (Subclass 444) visas over the years. However, as noted by the delegate in the cancellation decision record, there were no conditions attached to the Subclass 444 visas. The Tribunal gives no weight for or against cancelling the visa in respect of this factor.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship): In response to the first NOICC, the applicant’s then representative argued that the applicant is at a critical stage of his rehabilitation and the removal of various supports and upheaval in his life would be catastrophic to the steps he has taken to stabilise his mental health issues. These sentiments are echoed in several letters of support provided to the Department and Tribunal, including from his parents and aunt and uncle who state that ongoing family and other support in Australia is crucial for his transition to adulthood.
It has been submitted the applicant was struggling with his mental health at the time of his offending, and evidence has been provided in response to the first NOICC showing he was the subject of a mental health treatment plan in 2017 for a diagnosis of mixed anxiety and depression. As noted, the applicant told the Tribunal he underwent counselling when on his supervision order (which expired [in] December 2018) and the attendance order (which expired [in] March 2019). He said he still struggles mentally (he did not elaborate) but said he cannot afford ongoing counselling. The Tribunal notes no contemporaneous evidence about the applicant’s mental health status has been provided. Nonetheless, it accepts he may experience some ongoing problems, including anxiety around his uncertain visa status.
Additionally the representative submitted that all of the applicant’s family and support and networks are in Australia and he has none of those in New Zealand. Similar concerns about the applicant having no family, community or religious support networks in New Zealand were expressed in various correspondence from the applicant’s mother, other relatives and community members in Australia and the applicant himself in response to the NOICC and before the Tribunal, as did his partner.
At hearing the applicant told the Tribunal he has no one in New Zealand, and is worried about having to move there without any connections. As noted, he did acknowledge that some extended family members live in New Zealand, with whom he has no contact. He was unsure when asked about whether his parents were in contact with relatives in New Zealand. He said his grandparents live in [Country 1], and he and his family visit them regularly from Australia, via New Zealand, when able to.
The Tribunal acknowledges the applicant’s younger age, having lived in Australia most of his life, and accepts the applicant is close to his family in Australia, including his younger sisters, and they will be upset if he has to leave Australia and are likely to miss him, as likely he will miss them. It also accepts if his visa is cancelled this may lead to being separated from his partner. It accepts he has very limited, if any, support in New Zealand where he would have to re-establish himself, and that this may cause a degree of hardship, including exacerbating some mental health issues.
Nonetheless, even taking into account his younger age, and the difficulty of leaving his family and moving to New Zealand with limited family support, the Tribunal notes that nonetheless he is now an adult, with some education (to [Grade]) and some work experience. The applicant (and his partner) has indicated he wants to pursue a music production career, his partner noting he is talent in this respect. The Tribunal accepts that is the case and notes there is no reason he would not be able to pursue such a career in New Zealand, once he is able to establish himself which for reasons above the Tribunal is satisfied he will be able to. For these reasons the Tribunal does not accept he will be destitute or homeless in New Zealand and his mother indicated in her most recent letter to the Tribunal.
The applicant refers to the length of time he has spent in Australia, having moved to Australia at the age of [age], as does his mother in her letters. The Tribunal accepts that is the case and that Australia is the country he knows, having spent almost his entire life here.
The Tribunal has given these considerations some weight towards not cancelling the visa.
Circumstances in which ground for cancellation arose: The ground for cancellation arose when the applicant was charged with several offences, some of which involved violence towards others. The offences took place in 2017 and in response to the NOICC it was submitted that his behaviour in 2017 is in stark contrast to the person his family, peers and community members had previously known, evidenced by several letters of support provided. The representative submitted that in 2017 the applicant started to experience mental health issues such as anxiety, stress, anger and depression for the first time; it appears he was using alcohol and drugs to self-medicate in relation to his mental health issues; he deteriorated throughout the year which led to self-harm and experiencing suicidal ideation; however he managed to seek (and receive) help. It has also been submitted by the applicant’s former representative and several relatives and community members (including the reverend from his church) that the applicant was under the influence of negative peers at the time, that is, associating with the ‘wrong crowd’.
The applicant at hearing said he is remorseful and in response to the NOICC indicated that he feels sick when he thinks of what he did to the victim. He reiterated this in his letter to the Tribunal.
The Tribunal accepts the applicant was experiencing some mental health issues at the time of his offending, was young, and was affiliating with anti-social peers. Nonetheless it has formed the view that the applicant’s presence in Australia may or might be a risk to others. The applicant states that he is now a different person, is remorseful and would not re-offend, however the Tribunal has some doubts in this respect, as noted earlier, given the serious nature of the violent offences which occurred more than once (including whilst on bail). It also notes the advice from Victoria Police (as detailed in the second NOICC) that the applicant’s offending involved significant levels of violence, often resulting in the victims' losing consciousness; the attacks were unprovoked; the victims were randomly targeted; and that the applicant had taken the lead role in instigating the offending, often as a member of a group of between two and six individuals.
The Tribunal gives this factor significant weight towards cancelling the visa.
Past and present behaviour of the visa holder to the Department: Nothing adverse is known about the applicant’s behaviour towards the Department.
Whether there would be consequential cancellations under s 140: There are no persons who would be subject to consequential cancellation.
Whether there are mandatory legal consequences: If the applicant’s visa is cancelled he would become an unlawful non-citizen, unless granted another visa, which may result in his detention and removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention, although there will be limited opportunities for him to do so in Australia as a result of the cancellation. The applicant would be subject to an exclusion period in relation to future visa applications. The Tribunal gives this consideration some, albeit limited weight towards not cancelling the visa.
Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of cancellation: There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations arise in this case. The Tribunal finds that Australia’s non-refoulement obligations would not be breached as a result of the cancellation.
In response to the NOICC the representative submitted that as the applicant is a minor and as a signatory to the Convention on the Rights of the Child (CRC), Australia has an obligation to ensure the best interests of the child are a primary consideration. Several submissions were also made about not wanting to separate him from family members, in breach of principles of family unity set out in the CRC. However, as noted, the applicant is no longer a minor and therefore these considerations are no longer relevant.
It has been submitted that the applicant’s younger siblings, both Australian citizens, would be adversely affected if the visa remains cancelled and their older brother has to leave Australia. Further, that he helps support his siblings in various ways. The Tribunal accepts they would be negatively affected in that case: they would miss their brother and this may lead to some emotional turmoil, however not to the extent that Australia’s obligations under the CRC (or any other relevant treaty) would be breached as a result of the cancellation.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia: Although the Subclass 444 visa is not a permanent visa, it does allow for long term or even permanent residence in Australia. The Tribunal acknowledges the applicant’s family ties in Australia in the form of all of his immediate family members (whom it accepts he is close to), several extended family members and his partner, as noted earlier. It gives this factor some weight towards not cancelling the visa.
Any other relevant matters: Several statements in support and character references for the applicant have been provided to the Department and Tribunal from the applicant’s family, church and others in Australia. The Tribunal accepts he has reengaged with church and volunteers his time there playing the piano. His partner has also explained in her oral and written evidence to the Tribunal the adverse impact his departure would have on her. The Tribunal accepts that those who provided statements genuinely believe the applicant has rehabilitated and is committed to changing his behaviour and that he would not reoffend. It also accepts they would miss him and his leaving the country would impact them adversely. As noted earlier, the applicant’s partner and family can visit the applicant in New Zealand in the future, however, and he may be eligible to make applications for other visas, although there can be no guarantee that a visa would be granted to him in the future and any visa assessment is likely to include consideration of his character. It gives this factor some weight towards not cancelling the visa.
Exercise of discretion
The Tribunal has considered the totality of the evidence before it. It has formed the view that the applicant’s presence in Australia may or might be a risk to others and that there are grounds for cancelling the visa.
In exercising its discretion to cancel the visa (or not) the Tribunal acknowledges the applicant’s family ties in Australia, including immediate and extended family members whom he is close to, that his partner resides here, and that he has lived in Australia most of his life. It accepts he has re-engaged with his church community. Furthermore, as noted, there is limited support and networks available to him in New Zealand. It accepts he experienced some mental health problems in the past – including around the time of his offending – such as anxiety and depression, which may be exacerbated if he has to leave Australia. The length of the applicant’s residence in Australia and the extent of his ties in this country offer strong reasons why the visa should not be cancelled.
However, weighed against these considerations is the circumstances in which the ground for cancellation arose. The Tribunal places significant weight on the nature of the offences and considers that offences involving violence to others, including whilst on bail for similar offences, weigh strongly in favour of the cancellation. The Tribunal has formed the view that insufficient time has passed since the order he was on ceased to establish that his future conduct would be different and the Tribunal has found that there remains a risk of reoffending, despite the applicant’s efforts to reduce risk and his (and his partner and other relatives’) assurances otherwise. Further, the cancellation would not breach Australia’s international obligations, including the best interests of the child.
As noted, the Tribunal is of the view that the applicant’s partner and family can visit the applicant in New Zealand in the future and he may be eligible to make applications for other visas, although there can be no guarantee in this respect.
Despite the hardship that the cancellation of the visa would cause to the applicant, his family and his partner, having considered all the circumstances of this case as a whole, the Tribunal has concluded that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.
Nicole Burns
Member
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