2008575 (Migration) - [2020] AATA 5280

2008575 (Migration) [2020] AATA 5280 (2 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2008575

MEMBER:Kate Millar
DATE:2 October 2020
PLACE OF DECISION: Adelaide
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 02 October 2020 at 2:29pm

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – risk to the health or safety of an individual or individuals – criminal history – sentenced to imprisonment for less than one year – eligible for a further Subclass 444 visa – behaviour concern non-citizen – Convention on the Rights of the Child – best interests of the child as a primary consideration – rehabilitation and counselling – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 5, 32, 109, 116, 127, 189, 198, 347, 375A
Migration Regulations 1994 (Cth), r 5.15A; Schedule 2
CASES
CFE16 v Minister and CFD16 v Minister [2020] FCCA 1083
DXQ16 v Minister for Immigration [2020] FCA 1184
Gong v MIBP [2016] FCCA 561
Kaur v Minister [2017] FCAFC 184
Parata v Minister for Home Affairs [2020] FCCA 1582
Thakur & Ors v Minister [2020] FCCA 1038
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

[The applicant] is a citizen of New Zealand. He first came to Australia in 2008 on a Subclass 444 (Special Category) visa and has lived here since.
[The applicant] was convicted of two counts of aggravated assault causing harm and two counts of aggravated assault on [a day in] October 2017. He was convicted four counts of breach of bail on [a day in] June 2018. On [a day in] November 2019, he was convicted of aggravated assault and sentenced to 8 months’ imprisonment.
As these were offences involving domestic violence, a delegate of the Minster found he was a risk to the health and safety of women in Australia and cancelled his visa under s.116 of the Migration Act 1958 (the Act).
[The applicant] appeared before the Tribunal on 18 September 2020 to give evidence and present arguments. At his request, the Tribunal attempted to contact the mother of his daughter and his case officer from [State Agency 1] but was unsuccessful. The [State Agency 1] case officer advised they were unwilling to appear. As he is in immigration detention and has limited ability to obtain material for this application, [the applicant] was provided time after the hearing to obtain statements from witnesses and to provide further information.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
JURISDICTION
[The applicant] was purportedly notified of the decision to cancel his visa on 14 May 2020 by handing him a notice in person in the prison. This notice stated that the period in which to apply for a review was seven working days from when he was taken to have received the letter of the decision to cancel his visa. [The applicant] signed a form at [his named] Prison stating he had been handed the form on 15 May 2020.
[The applicant] lodged an application for review on 21 May 2020. He did not pay the application fee or request a fee reduction. Under s.347(1)(c) the application must be made within the prescribed period and be accompanied by the prescribed fee.
As the notification of the decision did not specify whether the decision was made under Part 5 or Part 7 of the Act as required by s.127(2)(b) and the notification of the decision is invalid.[1] This means the time in which he was required to lodge his application and pay the fee has not commenced.
[1] Parata v Minister for Home Affairs [2020] FCCA 1582
[The applicant] subsequently sought and was granted a fee reduction and has paid the application fee. As the time to lodge his application for review had not commenced, the requirements in s.347 are met and the Tribunal has jurisdiction.
CERTIFICATE ISSUED UNDER SECTION 375A AND DEPARTMENT RECORDS
The Department file contained a certificate issued under s.375A of the Act. If a valid certificate is issued under this section, the Tribunal must do all things necessary to ensure the document or information is not disclosed to any person other than a member of the Tribunal constituted for the purposes of the review.
The Secretary was asked to reconsider the certificate that had been issued as the Tribunal could not identify the documents or information covered by the certificate from the certificate itself. In response, this certificate was revoked and another certificate issued. This contained the same reference numbers but added a description. This did not help. Several of the document descriptions were identical and did not allow the Tribunal to identify each document. The Tribunal does not consider it is required to spend time and resources identifying, or in this case guessing at which documents or information are the subject of a certificate.
While the Tribunal appreciates the challenges involved with transferring documents given COVID restrictions, potentially withholding information from an applicant is a serious matter, and the documents or information covered by a certificate need to be capable of being clearly identified, as the Tribunal needs to turn its mind to whether the documents or information contain public interest information.
As the Tribunal could not identify with accuracy the documents addressed in the certificate, it finds the certificate issued under s.375A is invalid. Of the emails and other material on the file, the Tribunal is not satisfied they contain public interest information, as much of the material comprises internal exchanges about progressing the cancellation, or confirming the offences with which [the applicant] was charged and convicted, and whether he is in prison. Other information that may be covered by the certificate appears in the decision record, such as the statement of facts by Police that relate to his offending.
CONSIDERATION OF ISSUES
This is an application for review of a decision dated 14 May 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).
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. These include the ground set out in s.116(1)(e), which is the ground identified by the delegate. If satisfied that a 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.
It follows the issues are whether a ground to cancel [the applicant’s] visa is established, and if so whether his visa should be cancelled.
Does the ground for cancellation exist?
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].
[In] June 2017, [the applicant] was convicted of 4 counts of beaching protective bail conditions. [In] October 2017, he was convicted of aggravated assault and aggravated assault causing bodily harm. In 2019 he has been convicted of aggravated assault and was sentenced to 8 months imprisonment.
The threshold to establish this ground points to the possibility of a risk. This can be shown by past conduct insofar as this predicts future behaviour. The charges against [the applicant] relate to assault of two of [the applicant’s] domestic partners and shows he may be a risk to women with whom he is in a relationship.
The Tribunal is satisfied that the ground for cancellation in s.116(1)(e) exists. As this 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
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 applicant] has been in Australia since 2008. He says he wants to stay in Australia to prove to everyone he can change and be there for his children. He says there is nothing in New Zealand for him now, and he can live a better life in Australia.
[The applicant’s] children are in Australia. His mother and stepfather live in New Zealand, and he speaks to his mother once or twice a week. If he returns to New Zealand he could live with his mother. His biological father left when he was young, and [the applicant] says he has only seen his father on six occasions, most recently three or four years ago when he took his daughter to meet his father and [family members].
He has a brother in Melbourne, and [other family members] in New Zealand who are [relatives]. He has one [relative] in [another country] who he has not met. He has a [another relative] on his mother’s side who he grew up with, and who lives in New Zealand.
His grandfather lives in Australia, and [the applicant] said he came to Australia because of his grandfather. His grandfather is now retired and does some work on farms. His grandfather visited him in prison once or twice a month.
The purpose of the visa holder’s travel and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia
[The applicant] held a Subclass 444 which allows an indefinite stay in Australia as long as he is a citizen of New Zealand. As such he is not required to have a purpose to be in Australia, unlike other subclasses of visa.
The extent of compliance with visa conditions
A Subclass 444 visa does not have any conditions attached to it and compliance with conditions does not apply.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
[The applicant] has two children who are Australian citizens, and the hardship to his children are considered further below in relation to Australia’s international obligations. In addition to the best interests of his children, he pays child support and states his removal from Australia would cause [Child A’s] mother financial hardship. [The applicant] said he can live better in Australia than New Zealand, and the Tribunal accepts he would suffer some financial hardship if required to return to New Zealand as he has a job in Australia to which he can return.
The circumstances in which ground of cancellation arose
[The applicant] was convicted of four counts of breaching bail in June 2017, and then of assault, aggravated assault and assault causing bodily harm in October 2017. [The applicant] said the breach of bail resulted from being late going home and breaching the curfew imposed. He also said he breached a restraining order by contacting his ex-partner, however it would appear these are recorded as other breach of bail offences. The decision record of delegate states bail followed the charges for assault, and breach of bail was for contacting his ex-partner by [specified methods].
The series of unlawful assault, assault causing harm related to offences against a previous partner when he was intoxicated. [The applicant] said he wasn’t right in the head and didn’t know when to stop. The decision record states this involved an attempt to strangle the victim and to [cause specified injury]. It is stated he then [further assault details deleted].
In 2018 he was convicted of possessing [a drug] and possessing drug paraphernalia.
The next series of convictions were in November 2019 for aggravated assault against the mother of [Child B]. The police record states once incident occurred after he grabbed [her] and flung her away with force, and the other occurred after he went to the house intoxicated, and she is reported to have been happy to let him in to drink with two other male friends who were there. He became aggressive towards the other men and they left. He went to the front yard and started throwing rubbish from the bins in the front yard. The victim yelled at him, and he grabbed her [details deleted]. He was arrested and despite having memory loss due to his intoxication made admissions to the assault.
[The applicant] said that he just pleaded guilty after the victim jumped on him in the front yard of the property. He said it was a toxic relationship and he should have left her but wasn’t thinking right and was drinking too much.
[The applicant] said the charges resulted from a toxic relationship with the mother of his son. He said he wasn’t acting as a grown up, and he needs to walk away instead of arguing. [The applicant] said his time in prison and in immigration detention has given him time to think about what he has done and abstain from alcohol. He states he was unable to undertake any alcohol rehabilitation because visits to the prison were halted due to COVID-19. He said he can go to the [named] program.
While in prison he completed [a named parenting] program. He said he also attended an anger management course in prison, however he did not get a certificate as he was released. In immigration detention he states he has completed an anger management course, participated in a weekly [named] group and a weekly Men’s Group.
[The applicant] notes there was no violence in his relationship with the mother of [Child A].
[The applicant’s] conduct, and the limited rehabilitation he has undertaken does not inspire a great deal of confidence in his future conduct. Offences against a domestic partner are a serious matter, and his conduct weighs against him and in favour of cancelling his visa.
Past and present behaviour of the visa holder towards the Department
There is nothing to indicate [the applicant] has been other than co-operative with the Department.
Whether there would be consequential cancellations under s.140
There would not be any consequential cancellations if [the applicant’s] visa is cancelled.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
[The applicant] was sentenced to a term of imprisonment of 8 months. As he has not been sentenced to a term or terms of imprisonment that add up to at least one year and has not been removed or deported from Australia or another country he is likely to be eligible for a further Subclass 444 visa (s.32 of the Act, r.5.15A and Part 444 of Schedule 2 of the Regulations) if he applies onshore before being removed or deported.
If the Tribunal affirms the decision to cancel [the applicant’s] visa, he will be an unlawful non-citizen and liable to continued detention under s.189 of the Act. If he is unlawful under s.198 of the Act he will have to apply for another visa, or leave Australia, or be removed from Australia.
If he is removed or deported from Australia, he will not be eligible for a further Subclass 444 visa as he will be a behaviour concern non-citizen as defined in s.5 of the Act.
If he is removed or deported, he will be unable to return on a Subclass 444 visa as he will not meet the behaviour requirements for a further Subclass 444 visa under s.32 of the Act. There are no other readily clear visa options available to him at this time. He could apply for work visa if his previous employer can sponsor him. However, many of these visas are subject to Public Interest Criterion 4013, which would prevent him being granted a visa for three years unless there are compelling and compassionate circumstances (cl.4013(3)).
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
[The applicant] does not rely on any potential beach of non-refoulement obligations.
[The applicant] is the father of two Australian citizen children, [Child A and Child B]. [Child A] is [age] years of age and [Child B] is [age] years of age. [Child A] lives with her mother. [Child B] is in the care of his maternal grandmother, having been removed from the care of his mother by an order of [Court 1]. The whereabouts of [Child B’s] mother at the time of the orders was unknown.
Article 3 of the Convention on the Rights of the Child (Convention) requires that in all actions concerning children, the best interests of the child shall be the primary consideration.
This has been the subject of differing interpretations. Most recently in CFE16 v Minister and CFD16 v Minister,[2] (CFE16 & CFD16) in the context of Judge Reithmuller referred to Art. 3 of the Convention and stated:
… it therefore appears that at least a consideration in exercising the general discretion in the context of this case (where it would affect the children of the parties) would require that at least a primary consideration would be the best interests of the child.[3]
[2] [2020] FCCA 1083
[3] At [19]
Judge Reithmuller said the task required of the Tribunal was to identify the child’s best interests and then consider whether other matters were such as to outweigh the child’s bests interests.[4] Judge Reithmuller states:
… by adopting and ratifying the Convention, Australia has taken a position with respect to the way in which Australia will consider and deal with the interests of children. The position adopted by the Commonwealth in ratifying the Convention is one of principle, to make the primary consideration the best interests of the child “in all actions concerning children”. The Convention does not make the best interests of the child the only primary consideration, but ensures it is promoted to a position of being a primary consideration against which even serious defalcations by parents or other adults must be weighed.[5]
[4] At [24]
[5] At [25]
In Thakur & Ors v Minister[6] Judge Kendall, referring to the Full Court of the Federal Court in Kaur v Minister,[7] rejected the notion that the Tribunal is required to apply the Convention. This was in the context of a visa refusal due to a failure to meet Public Interest Criterion 4020, rather than a cancellation.
[6] [2020] FCCA 1038
[7] [2017] FCAFC 184
The issue of how to address the best interests of the child as a primary consideration has been considered again more recently in relation to cancellation under s.109 of the Act in DXQ16 v Minister for Immigration [2020] FCA 1184. His Honour Justice Stewart states at [55] that consideration of Art.3 requires the best interests of the child to be given primary consideration. Applying Art. 3 requires that whether the force of any other consideration would outweigh the best interests of the children.
As a result, the task before the Tribunal is to identify the best interest of each of [the applicant’s] children and then, after having considered all of the information before it, to decide if any other consideration outweighs the best interests of the children.
[The applicant’s] daughter [Child A] lives with her mother. Before he went to prison, [the applicant] says he had the care of [Child A] once a fortnight on weekends, and in the school holidays. He states that if he is required to leave Australia, [Child A] will be devastated. He will not be able to pay for her to go to New Zealand every holiday. He pays child support towards [her] care.

[Child A’s] mother provided a statement that it would not be in the best interests of [Child A’s] mental health if [the applicant] must leave Australia. She says she cannot afford for [Child A] to travel to see him and that she is too young to send on a plane by herself. She says [Child A] was devastated when [the applicant] went to prison and spent weeks crying, and that if he is deported it will crush her. Since being in jail [the applicant] contacts [Child A] on a very regular basis and is making an effort to be a consistent presence in her life.
Given [the applicant’s] ongoing and regular contact with [Child A] and the effect on [her] if he is required to leave Australia, it in the best interests of [Child A] that he remains in Australia.
[Child B] is in the care of his maternal grandmother. [The applicant] has not seen [Child B] in person and has had only one contact with him by [social media]. A Written Proposal in relation to [Child B], provided by [State Agency 1] to the [relevant] Court states that reunification can be considered if [the applicant] is progressing towards key safety goals. Behavioural goals set for [the applicant] are that he will be reducing or eliminating all drug and alcohol misuse evidenced through urinalysis testing, engage in healthy relationships free of violence, engage with family and domestic violence training and demonstrate he is able to connect with [Child B] in a positive and loving way and use age appropriate strategies for managing difficult behaviour.
This is stated to require him engage in family and domestic violence counselling and drug and alcohol counselling. The plan before the Tribunal is dated 22 January 2020, and [the applicant] has undertaken some counselling while in prison and immigration detention. It was not clear to either [the applicant] or the Tribunal what effect this would have on his contact with [Child B], and the Department declined to provide information to [the applicant] or the Tribunal about the current plan for him to have contact with [Child B]. [The applicant] said his plan was for [Child B] to have contact with him once a month or once a fortnight and progressively increase this over a six-month period, and then if this succeeds look to having custody of [Child B] in the next two years.
As [the applicant] has maintained contact with his daughter [Child A], the Tribunal considers it likely he would seek contact with [Child B]. As a very young child, it is in the best interests of [Child B] that [the applicant] remain in Australia, particularly as [Child B’s] mother does not appear to be currently playing a parental role for [Child B].
As the best interests of each of the children are that [the applicant’s] visa is not cancelled, the remaining question is whether this primary consideration is outweighed by any other factors.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
While a Subclass 44 visa is a temporary vias, and the only limit on remaining in Australia is being a citizen of New Zealand, it is more like a permanent visa, and the Tribunal has considered [the applicant’s] ties to Australia.
[The applicant’s] grandfather is in Australia, and he has a continuing relationship with his grandfather who visited him in prison.
[The applicant] said if he is released from immigration detention, he has work with a friend [duties specified]. He provided a reference from a previous employer who employed him [in a related role] and found him hard-working happy and helpful. It is stated skilled workers are in short supply and this is exacerbated by the current quarantine restrictions. This employer states he would be willing to act as a supervisor or sponsor. Another previous employer writes that [the applicant] was polite, hard-working, loyal and honest.
[The applicant] will return to the location near his son [Child B] so that he can work towards gaining custody of [him].
CONCLUSION
[The applicant] has been convicted of offences involving violence against two different domestic partners. He has yet to substantially enter counselling or drug and alcohol rehabilitation and did not appear to see a need for this rehabilitation. These are serious matters and there remains a possibility that [the applicant] is a risk to women with whom he is in a relationship.
This must be weighed against the primary consideration of the best interests of his children, and that he will not be able to be granted a further Subclass 444 visa if he is removed from Australia. Many other visa pathways will not be open to him for three years unless there are compelling or compassionate circumstances. He has a plan for gaining custody of his son and will need to engage in family violence and drug and alcohol counselling to achieve this goal. He is involved in the life of his daughter. He has his grandfather in Australia and work to which he can return in a skills shortage area.
As the best interests of [the applicant’s] children, in the context of his ongoing involvement in [Child A’s] life and the need for parental involvement in [Child B’s] life, are a primary consideration and in the circumstances weigh heavily in favour of not cancellation [the applicant’s] visa the Tribunal has decided that on this occasion, other considerations do not outweigh the bests interests of his children and that his visa should not be cancelled.
If there are any further offending or incidents of violence towards others, [the applicant] needs to be aware that his visa may again be cancelled. He has the opportunity to take action to undertake rehabilitation and be involved in the lives of his children on a day to day basis, and he is encouraged to take this opportunity.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.
Kate Millar
Senior Member