2306220 (Migration)

[2023] AATA 3353

2306220 (Migration) [2023] AATA 3353 (18 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Karyn Anderson

CASE NUMBER:  2306220

MEMBER:Deputy President J.L Redfern PSM

DATE:18 October 2023

PLACE OF DECISION:  Sydney

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 18 October 2023 at 2:47pm

CATCHWORDS

MIGRATION – Class TY Subclass 444 Special Category (Temporary) visa – cancellation under s 116(1)(e)(i) of the Migration Act 1958 - whether 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 – where the applicant has been convicted of criminal charges and sentence to a term of imprisonment of less than 12 months – ground for cancellation established – whether the power to cancel the visa should be exercised – consideration of the degree of hardship to the applicant and his family, the circumstances in which the ground for cancellation arose, legal consequences of a decision to cancel the visa and Australia’s international obligations – best interests of the child – decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth) ss 32, 82(1), 82(8), 116, 116(1)(e)(i), 359A, 359AA

Migration Regulations 1994 (Cth), r 5.15A, Schedule 2 cls 444.2 444.2, 444.511 and 444.6  

CASES

Briginshaw v Briginshaw [1938] HCA 34

CFE16 v Minister for Immigration & Anor and CFD16 v Minister for Immigration & Anor [2020] FCCA 1083

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

DXQ16 v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs [2020] FCA 1184

Gong v Minister for Immigration and Border Protection [2016] FCCA 561

Love v Commonwealth [2020] HCA 3

MZAJA v Minister for Immigration and Anor [2017] FCCA 448

Promsopa v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs [2020] FCA 1480

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179

Shi v Migration Agents Registration Authority [2008] HCA 31

Teoh v Minister for Immigration and Ethnic Affairs [1995] HCA 20

Vaitaiki v Minister for Immigration and Ethnic Affairs [1998] FCA 5

SECONDARY MATERIALS

PROCEDURES ADVICE MANUAL – PAM 3 ‘GENERAL VISA CANCELLATION POWERS (S 109, S 116, S 128, S 134B & S 140)’

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

1. This is an application for review of a decision 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 (Cth) (the Act).

2. The applicant, [Mr A], is a 38 year old New Zealand citizen. He was granted a Special Category (Subclass 444) visa on 23 October 2004 when he arrived in Australia at the age of 19 years old. He has resided in Australia since this time.

3. The delegate cancelled the applicant’s visa on 6 March 2019 following the applicant’s conviction for multiple criminal offences. The applicant did not receive notification of this decision and on 8 March 2022, the decision was re-notified to the applicant because of a defect in the original notification. The applicant applied to the Tribunal for a review of this decision and the matter was listed for hearing on 30 August 2022. On 21 October 2022, the Tribunal affirmed the decision to cancel the applicant’s visa.

4. The applicant sought judicial review of this decision and on 2 May 2023 the Tribunal’s decision was set aside by consent. It is recorded that the Court was satisfied that there had been jurisdictional error because the Tribunal had failed to disclose documents to the applicant on the basis of a certificate issued by the Department prohibiting disclosure. It is also recorded that the Court was satisfied the certificate was invalid and that the documents which were the subject of the certificate contained information that was relevant, credible and adverse to the applicant’s case. These documents were disclosed to the applicant as part of the judicial review.

5. The matter was remitted to the Tribunal for reconsideration. This is the reconsideration of the review.

6. After the review was constituted, the matter was scheduled for a pre-hearing case conference by Microsoft Teams on 2 August 2023. Further witness statements and submissions were provided in September and October 2023 and the matter was listed for an in person hearing in Melbourne on 6 October 2023. The applicant provided further submissions and evidence on 17 October 2023. The applicant was represented in the review and at the hearing by his lawyer, Karyn Anderson, of Clothier Anderson. Clothier Anderson acted for the applicant on a pro bono basis. I was considerably assisted in the conduct of the review by the relevant, cogent evidence and submissions provided by them, which is important in a case such as this where the applicant has identified vulnerabilities and the consequences of the outcome of the review are very serious.

7. The issue for consideration is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled. I have decided to set aside the decision under review and to substitute a decision that the applicant’s visa not be cancelled. My reasons follow.

   RELEVANT LAW

8. Non-citizens from New Zealand may obtain permission to stay in Australia under a Special Category (Subclass 444) visa. The criteria for a Special Category visa are set out in s 32 of the Act and r 5.15A of the Migration Regulations 1994 (the Regulations)[1]. The Special Category visa is a temporary visa permitting the holder to remain in Australia while the holder is a New Zealand citizen: cl 444.511 of Schedule 2 to the Regulations. This visa was introduced by the Migration Reform Act 1992 (Cth), which came into effect on 1 September 1994.

   [1] Clause 444.2 of Schedule 2 to the Regulations provides that the only criteria for a special category visa are those set out in s 32 of the Act and reg 5.15A of the Regulations. For instance, the public interest criteria set out in Schedule 4 to the Regulations do not apply to Special Category (Subclass 444) visas.

9. The visa is for an indefinite period but ceases to have effect if it is cancelled or if the visa holder leaves Australia: ss 82(1) and 82(8) of the Act.

10. Section 32 sets out the criteria for a Special Category visa and provides that the visa should be granted if the Minister is satisfied the applicant is a non-citizen, who is a New Zealand citizen and holds a New Zealand passport and is neither a behaviour nor health concern non-citizen.

11. Special Category visas may be cancelled in the circumstances set out in ss 109, 116 and 501 of the Act. Section 109 provides for cancellation where incorrect information is provided by an applicant, s 116(1) sets out the general grounds for cancellation of temporary visas and s 501 provides for cancellation on character grounds. Section 501 covers both temporary and permanent visas.

12. The cancellation decision which is the subject of the review was made under s 116(1)(e) of the Act. Subsection 116(1)(e) provides that the Minister may cancel a visa if satisfied that the presence of its 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.

13. 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.

    BACKGROUND

14. The applicant arrived in Australia in 2004. After originally intending to stay on a short visit, he commenced working and decided to stay. He has not returned to New Zealand since this time and has lived and worked in Australia for nearly 20 years. His parents, two of his siblings, their children and other extended family members have migrated to Australia over the years. One of his sisters, her children and an uncle and some cousins are still living in New Zealand. However, at least 30 members of the applicant’s family and extended family reside in Australia.

15. The applicant was born in Hawke’s Bay on the North Island of New Zealand. He was 19 years old when he arrived in Australia. The applicant initially lived in Sydney and then he moved to Brisbane. He travelled for work on occasion, moving principally between Brisbane and Sydney but he also spent time in Melbourne with relatives. He started a relationship with his long-time partner, [Ms C] (the applicant’s former partner), and they had a child together in February 2008. They lived together until 2018, when they separated.

16. According to details included in the Department file, it is apparent that the applicant has a lengthy criminal history, commencing when he was convicted and fined for the events of committing a public nuisance in January 2005. Between 2005 and 2018, the applicant was convicted of 25 individual offences, although more than half of these offences arose out of two incidents, one for which the applicant was sentenced in 2009 and the second for which he was sentenced in 2016. The applicant was generally fined, directed to undertake community service or sentenced to periods of probation. In 2018, he was sentenced to a term of imprisonment for a period of nine months for the breach of a previous probation order imposed in December 2016 and to a term of imprisonment for one month for the offence of assault or obstruct a police officer and going armed so as to cause fear. Many of the applicant’s offences were drug related and a number of convictions related to his failure to appear. The applicant’s convictions and related sentencing do not suggest that he was involved in serious offending.

17. On 19 January 2019, an officer of the Department issued a notice of intention to cancel the applicant’s visa (NOICC). The notice set out the details of the applicant’s criminal history from 2005 to May 2018, stating that the serious and repetitive nature of the applicant’s criminal behaviour, together with his willingness to possess a weapon likely to cause fear, in a public place, indicated a general disregard for Australian laws and indicates a high risk of recidivism. Having found that the grounds for cancellation of the applicant’s visa existed under section 116(1)(e), the delegate invited the applicant to make submissions on whether his visa should be cancelled.

18. The applicant did not respond to the NOICC and on 6 March 2019, a delegate of the Minister cancelled the applicant’s visa.

19. The delegate found that the grounds for cancellation existed, specifically referring to the conviction of ‘going armed so as to cause fear’ which it was said related to the applicant being in possession of a machete in a public street. In considering the discretionary considerations the delegate noted that the applicant may suffer hardship from being separated from his family and friends if removed from Australia. The delegate also acknowledged that it was appropriate to consider the Convention on the Rights of the Child and acknowledged that the integrity of the family unit was an important consideration. The delegate noted that there was a temporary protection order in place, and, while not making a specific finding in relation to the circumstances of the applicant’s case, stated that it would not be the best interests of any child to either observe or be in any way affected by domestic violence. The delegate concluded that he or she was satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa.

20. The applicant was not aware of the NOICC and therefore did not respond to the issues raised. Nor was he interviewed. At the hearing the applicant disputed the finding by the delegate that he had been in possession of a machete and gave an explanation for this offence. Notably, the basis for this finding is not apparent from the criminal records contained in the Department file.

21. According to documents in the Department file the NOICC and the letter notifying the applicant of the cancellation decision were ‘returned to sender’. This is consistent with the applicant’s claim that he did not receive these documents and was not aware that his visa had been cancelled. Accordingly, in the absence of a bridging visa and an application for review of the decision, the applicant became unlawful from March 2019.

22. After the applicant was released from prison in 2018 and he and his former partner separated, he moved to Melbourne. He commenced a relationship with a woman in Melbourne in 2019. He became involved in a dispute with a man who the applicant says abused his then partner’s grandmother. The police were called and he was taken to the police station where it was discovered that his visa had been cancelled and that he was unlawful. The applicant was immediately transferred into immigration detention where he has remained since November 2020.

23. When the applicant was in immigration detention, it was identified that he had not been correctly notified of the cancellation decision and he was re-notified by letter dated 8 March 2022. Once notified, the applicant sought review of this decision.

24. The review came before the Tribunal, differently constituted, in August 2022. The Tribunal was provided with statements from the applicant, his parents and an aboriginal elder, [Mr C]. The Tribunal was also provided with an expert report from Dr Peter Cook, clinical psychologist, dated 18 July 2022. The applicant and his parents gave evidence.

25. The previous Tribunal found that the ground for cancellation was established and, after considering the number of discretionary matters, placed ‘greater weight’ on the circumstances in which the ground for cancellation arose, namely the applicant’s multiple criminal offending. The Tribunal affirmed the decision under review. This decision was set aside by the Federal Circuit and Family Court of Australia by consent.

26. As a result of the judicial review application, the applicant obtained a copy of a document included in the Department file called ‘Priority Caseload Assessment’. This document was the subject of a notice under s 375A of the Act, which prohibited disclosure by the Tribunal. The previous presiding member complied with the notice and did not disclose the assessment report or any information in the assessment report. The report included the statement ‘Partner agency system indicates the visa holder has gang associations to the Mongrel Mob/Bloods OMCG’. There was no further information identifying the partner agency, the nature of the information or the grounds on which this assessment was made. As already noted, while this matter was not contested or judicially determined, the Court accepted that the certificate was invalid and that the information, which should have been disclosed to the applicant, contained information that was relevant, credible and adverse to the applicant’s case.

27. The issue of whether the applicant was a member or associated with the Mongrel Mob was addressed by the applicant in a statement and in his evidence in the hearing before me. The Mongrel Mob is a street and prison gang which has its roots in New Zealand. It has chapters throughout New Zealand with additional operations in Australia and Canada. The majority of its members are of Māori origin and over the years, various chapters have been involved in organised criminal activity, particularly in New Zealand. This background information about the Mongrel Mob is publicly available and explains why this issue was raised by the Department as a matter of concern.

    PROCEDURAL ISSUES

28. After the Federal Circuit and Family Court of Australia remitted the matter for reconsideration, I requested details of the source documents used as the basis for the comments made in the Priority Caseload Assessment. The Department provided copies of documents by email dated 19 July 2023 and these documents were provided to the applicant by letter dated 20 July 2023.

29. As already noted, the matter was listed for a prehearing case conference to schedule an in-person hearing and to ensure that all prehearing and evidentiary material was provided well in advance of the hearing. Directions were made about the filing of further evidence and submissions. The applicant provided an updated statement and statements from two of his siblings, several of his nieces and nephews, his brother-in-law and the applicant’s former partner.

30. One of the documents provided by the Department after the Court remittal was a Protection Order dated 19 February 2019 issued by the Magistrates Court at Beenleigh under section 37 of the Domestic and Family Violence Protection Act 2012. The aggrieved party was the applicant’s former partner and their daughter, [Ms D] (the applicant’s child), was referred to as child of the aggrieved. It was noted that the applicant must be of good behaviour and not commit domestic violence against her and that any child must not be exposed to domestic violence. The order also provided that the applicant should not approach within 100 metres of where his partner or any other named party lived (in this case being the applicant’s child), except for the purposes of having contact with children as authorised by the Department of Child Safety. The order was stated to have force until 19 February 2024.

31. The second documents provided were said to be extracts from the applicant’s Facebook page with typed dates at the bottom of the extracts ranging from 2000, 2019 and 2021. The copies included photographs of the applicant wearing a Mongrel Mob jacket with two other people who also appeared to be wearing Mongrel Mob apparel. These documents were discussed with the applicant during the hearing.

32. Both sets of documents were potentially adverse to the applicant’s case and copies were provided to the applicant after the prehearing case conference. The applicant provided explanations in relation to these documents in an updated statement filed before the hearing.

33. The fact that there was a Protection Order in favour of the applicant’s former partner was referred to by the delegate in the decision record. The applicant referred to this in his statements and provided an explanation in relation to the order. The applicant’s former partner also provided an explanation in relation to the Protection Order. The only matter that was not previously disclosed was that the Protection Order was in place until February 2024. I formed the view that this was not information that required compliance with the procedures set out in sections 359A or 359AA because this information was not, of itself, information that would be the reason or part of the reason that the decision under review would be affirmed.[2]

    [2] These sections provide that the Tribunal must disclose information to an applicant that would be the reason, or part of the reason, for affirming the decision under review. Particulars must be provided about the relevance of the information and the applicant must be given an opportunity to respond or comment. Section 359A sets out the procedure for disclosures in writing and s.359AA sets out the procedure to be followed during a hearing.

34. The second matter which was the subject of potential adverse information was the existence of photographs and posts suggesting that the applicant had an association with the Mongrel Mob. If the applicant previously had, or more relevantly currently had an association, or even a disposition to be associated with the Mongrel Mob if released into the community, this would be relevant to the review for two reasons. First, it would be relevant to the issue of whether the applicant is, may or would be a risk to the safety of the Australian community. Secondly, it would be relevant to the exercise of discretion.

1. Sections 359A and 359AA are intended to enhance procedural fairness for an applicant. Their purpose is to ensure an applicant is on notice of adverse information and the relevance of that information that is in the possession of the Tribunal. Given that the process of review has many different stages, including consideration of the material provided to the Department, material provided to the Tribunal and information provided to the Tribunal through the hearing process, difficulties may arise as to how best and at what stage to discharge this obligation, particularly in circumstances where the applicant has clarified certain matters about the information such that the Tribunal may no longer have concerns or any concerns may not be sufficiently elevated to a relevantly material level. These issues can be particularly difficult during the dynamic of the hearing, as discussed by Justice Peram in Springs v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[3] .

   [3] [2021] FCA 197 at paragraphs 30 – 39.

2. When these documents were provided by the Department, the source of the documents was unclear and it was therefore difficult to form a view about the probity, date or the materiality of the information provided. It was for this reason that information was sent to the applicant prior to the hearing without formal notification under s 359A. The photographs were discussed at length during the hearing and, as a precaution, the procedure set out in s 359AA was followed. While somewhat confusing for the applicant, he gave a detailed explanation about the photographs and how and when they may have been posted to Facebook.

3. Further procedural issues arose before the commencement of the hearing. The applicant’s former partner requested that she give evidence in private. She advised that she had no difficulty with the applicant’s lawyers being present but she did not want to discuss the Protection Orders or the matters that gave rise to the orders.

4. I was satisfied that it was in the public interest to make a non-publication direction under s 378 of the Act and that part of the hearing should be conducted in private. I was also satisfied that confidentiality orders should be made in relation to the publication of various matters relating to the applicant’s former partner and the applicant’s daughter. However, I advised the applicant’s former partner that the circumstances giving rise to the Protection Order were relevant to the review and that she would be asked about these matters. The applicant’s former partner answered all relevant questions and her evidence and my findings about these matters, insofar as they are relevant to the critical issues in the case, are set out below. The applicant was not present during her evidence and consented to this course of action. When he returned to the hearing room, the applicant was advised, in general terms, of the effect of her evidence but was not given any detail about the more sensitive issues that she wished to keep private. Relevantly, none of her evidence was adverse to the applicant.

   OUTLINE OF EVIDENCE

5. The applicant provided numerous statements in support of his review.[4] He gave evidence at both hearings. His evidence was consistent and credible.

   [4] Statements dated 25 August 2022 and 8 September 2023.

6. The applicant’s mother, [Ms E], provided a statement in support of the applicant prior to the previous hearing. She also gave evidence at the previous hearing. Tragically she was diagnosed with pancreatic cancer in December 2022 and passed away from this disease in April 2023. It was apparent from the evidence provided and the transcript from the previous hearing, that [Ms E] was a driving force within the family. Her death had a significant impact on the members of her family and it was obvious that the applicant, his sister [Ms E], and his father, [Mr B], each of whom gave evidence at the hearing before me, were still affected by grief.

7. [Ms E] married applicant’s father, [Mr B] over 40 years ago and they have four children together, three daughters and one son, the applicant. [Ms E] strongly supported her son remaining in Australia and outlined her reasons in a statement provided to the previous Tribunal. One of the issues she raised related to her family aboriginal ancestry. According to [Ms E], she first learned about her aboriginal ancestry in about 2000 and made contact with an elder at the Djerriwarrh Te Moana Nui A Kiwi Aboriginal Corporation. She stated that she was proud of this heritage and that she wanted to find out more about her ancestry. As part of her investigations, she came in contact with [Mr C] who is another elder at the Djerriwarrh Te Moana Nui A Kiwi Aboriginal Corporation. He lives close to her daughter [Ms E] in Melton. She learned that [Mr C] is a relative of hers through their aboriginal ancestry. The applicant also has aboriginal ancestry and she believed it would be important for him to understand and connect with this ancestry.

8. [Ms E] also stated that most of the family and extended family now live in Australia with only a couple of relatives who have remained in New Zealand. She stated that whenever the grandchildren came to visit on the holidays, the applicant would help them take care of the children. She and [Mr B] relocated from Sydney to Melbourne to be closer to the applicant. [Ms E] stated that she believed her son had spent time with ‘undesirable company’ and this was the problem with his criminal offending. She had taken steps to book him into Bacchus Marsh Health which is a rehabilitation centre. She believed that he would be able to manage his addiction and he would not be a risk to the Australian community. She stated that if the applicant was removed from Australia there would be terrible consequences for the family and would have a big impact on the applicant’s father who had health problems.

9. In her evidence to the previous Tribunal, [Ms E] was asked about the relationship between the applicant and his daughter. She said that the applicant talked with his daughter most days. She was also hopeful that the relationship between the applicant and his former partner would be rekindled.

10. The applicant gave evidence that he lived in a very close-knit family in the Hawke’s Bay area in New Zealand in his early years. He had a happy life at that time but he had dyslexia and had great difficulty reading and writing. He left school at the age of 14 and has little formal education. He still finds it difficult to read and concentrate and this has been an issue for him for many years. It continues to be a problem. He first learned of his aboriginal heritage in about 2000 through his mother and older sister, [Ms G]. His mother was very interested in learning more about this so that when she came to Australia in about 2004, this was something she actively pursued. In his statement and oral evidence, the applicant outlined his interest in pursuing his aboriginal ancestry and culture but said that he found it difficult to understand, because of his difficulty in reading. He nonetheless felt connected with this culture. He would like to pursue this, although this was something that his mother and sisters had focused on more than him.

11. The applicant met his partner in 2007 and they were together until they separated in 2018. He stated, and this was confirmed in his oral evidence, that he got involved in drugs, alcohol and a bad crowd by the age of 25 or 26. This led to his criminal offending. Most of his offending was related to his drug taking and his ‘stupidity’ in failing to engage with court orders and appearances on a number of occasions. He said that he takes full responsibility for this offending and accepts that his offending was driven by his addictions and the people he was spending time with. This caused tension with the applicant’s former partner who did not take drugs and was unhappy with his lifestyle. While he agrees that he was convicted of some offences involving burglary and theft in 2016, he states that he was not directly involved in the commission of these offences and he was implicated because he was with his friends at the time they were arrested. He described the offence leading to the conviction of obstruction of police and carrying a weapon in a public place. He said the weapon was not a machete but a knife that a friend threw at him as a joke and that he picked up and had in his possession at the time of his arrest. He agrees that he and two other friends that he was with ran away from police which led to the obstruction convictions in 2018. He went to prison for these offences for about one month (which is confirmed by his criminal records). He said he regretted his actions.

12. After the applicant got out of prison there was conflict between he and his former partner. She was admitted to hospital as a result of an incident that he stated involved self-harm. He did not follow his parole conditions because he was visiting her. He said his previous offences were called up and he was imprisoned for several months. While he was in prison, he became aware that a protection order made against him although he thought that it was temporary and had since expired. He did not precisely know how the order came to be in place. He said that he had not ever hurt his former partner and had never been charged with domestic violence. However, during the hearing he said that he may have hurt her on two occasions (it was unclear whether this was physical or emotional) but this was not the reason for the protection order at this time. He stated that he believed that his former partner had injured herself and was in hospital as a result of self-harm.

13. After the separation, he relocated to Melbourne and entered into a relationship with a woman called Hayley. They were in the relationship for about one year but she subsequently broke it off. He said that there was a further incident in 2020 when a man abused Hayley’s grandmother. He went up to the man and told him that he should ‘pull his head in’ and that he shouldn’t treat an old woman that way. The police were called, he believes that he was charged with common assault, to which he pleaded guilty. He was put on a good behaviour bond. However, the police said to him that he was unlawful therefore he would be detained and sent to an immigration detention centre. He did not know that his visa had been cancelled and did not understand that he was unlawful.

14. The applicant has been in immigration detention for nearly three years. He said that he has found it very difficult but he has taken the opportunity to involve himself in anger management and drug and alcohol courses. He says that he no longer drinks alcohol and has not been taking any drugs while he has been in detention, although he says that it is possible to obtain drugs and alcohol. He has been involved in the detention centre’s rehabilitation and drug substitution course. He has been on medication and has been involved in the detention centre drug rehabilitation program for nearly two years. He said that he does not want to return to drugs and proposes to continue his rehabilitation when he leaves immigration detention. He said that his mother had organised for him to attend Bacchus Marsh Rehabilitation centre but his only concern about that was that it was a smoking free zone. He would prefer to go to a facility where he was allowed to smoke because he was a chain smoker.

15. When asked why things would be different if he was allowed back into the community, the applicant said that he had been deeply impacted by the death of his mother. He wanted to be part of his family and be a support to his family. He said he was ‘over’ living the life he had lived and he wanted to work, spend time with his daughter, support his father and contribute to the family. He would also like to understand more about his aboriginal heritage. The applicant gave an account of his relationship with his siblings and his nieces and nephews. He was close to a number of his nieces and nephews and, in particular, the children of his youngest sister, Isla.

16. The applicant said that he spoke to his daughter on the telephone every day, sometimes several times a day, and that she had visited him in the immigration centre on a number of occasions over the past year. She first came to visit in December 2022 with his mother. She also came to visit him before his mother’s death and she came down to attend his mother’s funeral in April 2023, at which time she visited him. He says that they are very close. They speak about everyday matters and he knows that she is very interested in cooking and pursuing something in that field. She does not like sport. Most of the time she just ‘vents’ to him. He said that he has never harmed his daughter and would never do so. He said that the Protective Order had been made in circumstances where his former partner was in hospital and he was in prison. He said that he had nothing to do with this former partner’s admission to hospital and that this was a result of self-harm. He believed that the Department of Child Safety became involved because there was no one to look after his daughter at that time. After he was out of prison, his daughter visited him and the visits were supervised and authorised by the Department of Child Safety. However, he understood that this was no longer required after a year and he assumed that the order had lapsed. He was very surprised to find that it was still in place.

17. The applicant said he is very motivated to do well once he leaves immigration detention and if he is allowed to stay in Australia, he will keep away from drugs and bad crowds, which is the thing that led to all of his criminal offending. Since his mother’s death, his relationship with his father and the rest of his family has become closer.

18. The applicant was asked about the photographs of him wearing a Mongrel Mob jacket and with others who seem to be wearing Mongrel Mob insignias. He said that he did not understand where these photos had come from and noted that his former partner, Hayley, had created a Facebook page using his name and he believes she may have posted these photos. Some of the dates of the photos (type written at the bottom) seemed to be inconsistent or incorrect. For instance, one photo was dated 2000 which was obviously incorrect as this is when he was 16 years old before he came to Australia. Close scrutiny of the posts showed dates in 2019 and 2020, before the applicant was in immigration detention, and early 2021. The applicant said that the people in one of the photos (2019) were people that he associated with a long time ago. He agreed that they were part of the bad crowd that he was with and that he no longer associated with them nor did he have an desire to associate with them. He said that he was not a member of or associated with the Mongrel Mob although agreed that those friends in the photos were. The jacket that he was wearing was not his jacket but his friend’s. He said that he had no interest in the Mongrel Mob and would certainly not seek to join or will be associated with people who were associated with the Mongrel Mob. After three years in detention, his mother’s death and what he had been through he asked to be given a second chance. He had been allowed to visit his mother in the funeral home but was not allowed to attend the funeral. He had to make a choice. Not being able to be with his family at this time had been particularly hard for him.

19. [Mr B] gave evidence in support of his son’s application for review. He said that he first came to Australia in 2005 and had lived here ever since. He and [Ms E] had lived in Sydney for most of their time in Australia but moved to Melbourne in 2021. He was currently residing with his daughter, Isla, and her family. He had a heart problem and was taking a lot of medication. Prior to his wife’s passing, he had a lot of ups and downs but after his wife died, he was at the lowest point of his life. On the night of his wife’s passing, the applicant rang him and simply told him how much he loved him. This gave him strength at a time when he was concerned about how he would continue. [Mr B] said that this is the first time that he told anybody about how low he had been at that stage of his life. He said that he would not be here today but for this telephone call from his son. He said that the applicant had reconnected with the family since his mother’s death and was talking with his sisters on a regular basis. [Mr B] described this as ‘beautiful’. When asked about the relationship between the applicant and the applicant’s daughter, he said they were very close and that whenever he said something about the applicant in a joking fashion, the applicant’s child always defended him. He said that the applicant and his daughter were ‘stuck together like a blanket, you cannot separate them’.

20. [Ms E] provided a statement and gave evidence at the hearing. She has four children aged 14, 11, seven and two. She said she did not have much of a relationship with her brother when she was growing up because she was so much younger and she was still living in New Zealand while he was in Australia. They became closer once she moved to Australia and particularly because of his close relationship with her children. Her children would often stay with their grandparents in Sydney. Her brother would spend time with the children and they would often talk about him on the return. She became closer to him when he was in detention because he would frequently telephone his parents, in particular his mother, who were living with her in her home in Melton. She had visited him a few times at the detention centre but after their mother was diagnosed with cancer on 23 December 2022, things have changed and they had become a lot closer. Their mother was a very important person in the family – she was the linchpin. It was very difficult for the whole family when her mother was diagnosed with cancer. She was unwell leading up to her passing and this was particularly difficult for the applicant as he was not able to be close to her or to the rest of the family. She said that from her observation, the applicant’s relationship with his daughter is very close. They have ‘a very close bond’. She calls the applicant ‘Papa’. Her eldest child and the applicant’s daughter are close because they are similar ages. She said that when the applicant leaves immigration detention, if he is not deported, he will move in with their father and help look after him. [Mr B] currently lives with them but they are proposing to move out in a couple of months into their new home, which is just down the road. She said that the family will support the applicant once he leaves immigration detention, and she feels confident that he will succeed. They will help him obtain his license and to get a job.

21. The applicant’s former partner gave evidence, initially by Microsoft Teams but when the connection proved to be too unstable, by telephone. She said that she and the applicant had been together between 2007 and 2018. They had a good relationship for a number of years, but this started to break down when he started to take drugs and got in with a bad crowd. They separated in 2018. He had been unfaithful to her and she suffered mental health issues as a result of their relationship. She said that when she was in hospital and the applicant was imprisoned, the Department of Child Safety became involved as there was no one to care for thier daughter at that time. She believes that this is why the Protection Order came about. She said that she did not fear the applicant and he had not hurt her physically but he made her think that she was imagining things and this caused mental health issues for her. She said that he had never hurt his daughter and that their relationship was very close. She did not know that the order was still in place and she allowed their to visit the applicant in immigration detention centre in December 2022 when his mother was first diagnosed with cancer. She said that she was now in a good state of mind and that she had the help that she needed but did not have any ongoing relationship with the applicant. Her only interest was in relation to her daughter and this is why she had agreed to give evidence to the Tribunal. She said that her daughter was a ‘daddy’s girl’. She said that it would be devastating for their if her father was deported. Her daughter had been telephoning her during the course of the day to ask for updates about the hearing because she was anxious about the outcome. She said that she had grown up without a father and she did not want to this to be the case for her daughter. She said that a number of the applicant’s problems had arisen because he had been in bad company.

1. When asked about whether the applicant was likely to change, she said that she hoped this would be the case. She said that she believed the applicant would understand what he would lose unless he changed. She finished her evidence by saying that while she knows that the applicant had got into trouble before, she believes he is a good person and he had a good heart but had just simply gone down the wrong path.

2. [Mr C] provided a statement dated 23 August 2022, directed to the applicant’s aboriginal and ancestry. According to [Mr C], he is an aboriginal man and is recognised as an aboriginal elder. His tribe is the Poolrerrrener clan in Tasmania. He was brought up in New Zealand by adopted parents and has Māori heritage. He found out about his aboriginal heritage in 2012. He, together with a number of others in the area, applied for registration under the name of the Djerriwarrh Te Moana Nui A Kiwi Aboriginal Corporation. This name incorporates both aboriginal and Māori names and is reflective of the ancestry of the members and was registered in August 2014. He stated that [Ms E] first contacted him a few years ago to investigate her and the family’s aboriginality. He met both [Ms E] and the applicant several years ago. He believes that the applicant’s family has aboriginal ancestry and it would be important for the applicant to be able to pursue this connection by staying in Australia.

3. Six of the applicant’s nieces and nephews provided short statements in support of his application for review. They were not required to give evidence at the hearing. The statements were to the effect that the applicant was a good man and he should be allowed to stay in Australia. There is little detail provided about the nature of their relationship with the applicant, although it is apparent that a number of his nieces and nephews spent time with him when he was living with his parents. Each of these witnesses speak of the difficulties that would be faced by his daughter if the applicant is deported.

4. The applicant’s brother-in-law, the husband of [Ms E], provided a statement in support of the applicant. He stated that the passing of the applicant’s mother earlier in the year was a ‘big eye-opener’ for the applicant and since that time the applicant had definitely been putting in effort to do better. He said that the applicant had the support of his family.

5. The applicant’s sister [Ms F], who currently resides in New Zealand, also provided a statement in support. She stated that if the applicant was to remain in Australia he would have the support of his sisters, his brothers-in-law and his nieces and nephews, his grandnieces and his father. She stated that their mother’s last wish before she died was for her son to be free and that her brother had promised their mother that he would do better.

6. The Tribunal was also provided with a handwritten statement from David Watts, bricklayer, who had worked with the applicant as a labourer. He stated that the applicant was always punctual, reliable and very conscientious about the job. He did not believe that the applicant would have any difficulties getting a job again in the field of bricklaying.

7. Dr Peter Cook provided an expert report for the previous proceedings dated 18 July 2022, which the applicant continues to rely on in these proceedings. Dr Cook interviewed the applicant over several hours in June 2022 with a follow-up interview. He reviewed various documents, including the visa cancellation documents, details of the applicant’s criminal history, documents relating to the applicant’s aboriginality, a draft statement of the applicant and a letter from Mr Charlie Nash, clinical nurse specialist (drug and alcohol) International Health and Medical Services, dated 3 June 2022. This letter was also provided to the Tribunal and is referred to below.

8. After recounting the applicant’s criminal history, Dr Cook noted that the applicant reported he was dyslexic and largely illiterate. Dr Cook stated that it appeared the applicant had suffered from a variety of substance use disorders in the past and, based on information provided by the applicant, noted that these disorders appeared to be in remission. He also noted that most of the applicant’s past offending related to drug and alcohol use and that there was not otherwise an indication of significant personality disturbance. Dr Cook noted that while a formal assessment had not been undertaken it is likely that the applicant was of low average intelligence at best. He then proceeded to make an assessment about the applicant’s likelihood of reoffending, referring to the 2013 United Kingdom Ministry of Justice publication known as ‘Transforming rehabilitation: a summary of evidence in reducing reoffending’. He noted that this document identified factors that were clearly associated with increased or decreased risk of reoffending.

9. Dr Cook stated that the applicant’s history of alcohol and drug abuse was significant and opined that if the applicant became involved in drug or alcohol use again, it would be likely he would reoffend. It was also noted that the applicant had a significant history of reoffending between his arrival in Australia and 2018 and that this was associated with his substance abuse. Dr Cook noted that the applicant had demonstrated low self-control and impulsivity in the past and stated that there was an open question as to whether he had matured in recent years such that he was more able to control these impulses. He observed that after the applicant moved to Victoria in 2018, it appeared that his offending had reduced.

10. According to Dr Cook, social and intimate relationships are an important motivating factor to re-establish stability. He noted that the applicant’s description of his relationship with the applicant’s child suggested that he had significant involvement in her life. He also noted that poor housing was associated with an increased likelihood of reoffending but that the applicant would be living with his family if he was able to remain in Australia and that this would be a protective factor. Dr Cook also stated that employment was an important factor and noted that according to the statement provided by the applicant, he had a history of consistent employment throughout much of his adult life. Dr Cook also opined that now that the applicant was older, this suggested that his maturation and attitude to life was more realistic than previously and that he was less likely to undertake such a ‘hedonistic’ lifestyle of partying. Dr Cook noted that strong family ties and relationships and being within a social group was an important factor in determining whether a person would reoffend. It was also noted, in the applicant’s favour, that while he had a lengthy history of criminal offending, he did not appear to have a particular identification with the criminal subculture.

11. Relevantly, Dr Cook opined as follows:

    The following comments address the specific areas / questions forwarded by [Mr A’s] legal representative:

    [Mr A’s] current psychological condition and presentation:

    As identified above I am of the opinion that [Mr A’s] previous substance abuse disorders are in remission, and that no other psychological conditions pertain.

    Does [Mr A] constitute a risk to the Australian Community?

    As identified above I am of the opinion that [Mr A] does not have strong criminal or violent tendencies and that his past offending was associated with a chaotic, drug-fuelled lifestyle. Despite his history of offending, on balance there are reasonable grounds for concluding that he has reappraised his life and now there is a far lower risk of further offending. As noted significant protective factors are present.

    [Mr A’s] level of insight into his offending and his understanding of the causes or triggers for his offending.

    [Mr A] has good insight with respect to the highly negative influence that substance abuse has played in his past. He stated emphatically that (belatedly) realising that drug and alcohol use were destroying his life (and harming those close to him) was central to him ceasing substance use. He deeply regrets his past offending and the impact it has had on his life and others. This is particularly the case with respect to his relationships with his daughter and his former partner. He is regretful regarding what he has put his parents and family through and wants to avoid causing them any future pain. He is also highly aware that if he were able to remain in Australia, any future offending would be highly likely to result in deportation.

12. The letter from Charlie Nash referred to by Dr Cook recorded that Mr Nash had known the applicant for six months. It was recorded that he and the applicant had worked together to commence the applicant on the Opiate Substitution Treatment Program (OSTP). According to Mr Nash, the applicant had ‘displayed commitment to his physical and mental health and is an active participant in his care and his OSTP treatment’.

13. After the hearing the applicant provided a letter from the team leader from the immigration detention centre confirming that the applicant would be able to remain on OSTP in the community and that the team would be able to help the applicant transition into community supports after he left the detention centre. The applicant also provided a copy of the court documentation in relation to the 2020 unlawful assault charge which recorded that, upon the applicant giving an undertaking to be of good behaviour, he would be released without conviction but was fined $200.

    CONSIDERATION

14. The Minister may cancel a visa under s.116 if he or she is satisfied that certain grounds specified in that provision are made out. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled.

    Does the ground for cancellation exist?

15. The delegate cancelled the applicant’s visa on the basis of s 116(1)(e)(i), which provides that the Minister may cancel a visa if satisfied that the presence of its 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. In this case, the delegate considered that the presence of the applicant may be, or would or might be, a risk to the safety of the Australian community. The basis for this was the applicant’s previous criminal offending.

16. The question of whether the presence of a visa holder is or may be a risk to the safety of the Australian community or a segment of the Australian community is a question of fact. The task of the Tribunal in respect of s 116(1)(e) is to assess the risk to the community based on all of the information available to the Tribunal: MZAJA v Minister for Immigration and Anor [2017] FCCA 448 at [15]. This information may include the existence of charges and convictions, the nature of those charges or convictions and the personal circumstances of the applicant and how those circumstances may impact on any risks.

17. In assessing whether the ground is established, the Tribunal must have regard to the information and evidence available at the time of the review decision, including the circumstances of the applicant prevailing at that time: refer Shi v Migration Agents Registration Authority [2008] HCA 31.

18. There is no definition of 'risk' in the Act or Regulations and as such the ordinary meaning applies, namely the chance of injury, loss or hazard: refer generally, the Macquarie Dictionary, revised 3^rd edition, 2001.

19. Subsection 116(1)(e) speaks of a 'risk' that the presence of a visa holder 'is or may be' or, alternatively, 'would or might be' to the safety of the Australian community, a segment of the Australian community or an individual or individuals. The first limb ('is or may be') is addressed to circumstances where the applicant is present in Australia and the second limb ('would or might be') is addressed to circumstances where the applicant is outside Australia: refer Gong v Minister for Immigration and Border Protection [2016] FCCA 561 at [41].

20. The expression ‘safety’ has an ordinary meaning which includes ‘freedom from injury or danger’. The relevant risks from which the Australian community, or a segment of the community, are to be protected therefore include ‘injury, danger and other forms of harm (such as physical harm)’[5].

    [5] Procedures Advice Manual – PAM3 ‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s 140’' at [72].

21. Where a visa holder has been convicted of serious violent criminal conduct, particularly if this is repeated, this may establish that there is or may be a risk to the safety of the Australian community or a segment of the Australian community under s 116(1)(e)(i). The safety of the Australian community or a segment of the Australian community speaks of a broad concept which connotes a level of repeated or serious violence that reaches beyond localised or individualised acts of violence. In contrast, s 116(1)(e)(ii) is directed to the risk to the safety of an individual or individuals and contemplates targeted violence, such as domestic violence.

22. The concept of 'risk' has an element of futurity and in considering the question of whether a visa holder 'may be’ a risk within the meaning of s.116(1)(e), it is relevant to consider past conduct. This includes conduct which is the subject of criminal convictions and may include alleged conduct which is the subject of unproven criminal charges: refer Gong v Minister for Immigration and Border Protection at [41][6]. It may also include probative and credible evidence of conduct or activity that is not the subject of convictions or charges, but which nonetheless raises concerns about whether a visa holder may harm members of the Australian community or a segment of the Australian community.

    [6] [2016] FCCA 561.

23. It is submitted that the Department policy on this issue, which suggests that the existence of any risk is sufficient to engage s 116(1)(e) of the Act is flawed and that the state of satisfaction required to engage such a finding guided by the Briginshaw principles to the effect that there must be ‘rationally probative material’ on which to make a finding on risk and that the Tribunal should not rely on ‘inexact proofs’.[7] The applicant’s lawyers refer to the report of Dr Cook and, drawing on the conclusions made by Dr Cook in his report, submit that it would be inconsistent for the Tribunal to find that the applicant’s convictions or any alleged conduct by him engages s 116(1)(e) of the Act. It is submitted that the cancellation should be set aside on this basis.

    [7] Briginshaw v Briginshaw [1938] HCA 34.

24. I accept the submission that an analysis that identifies the existence of any risk as engaging the discretionary power to cancel under s 116(1)(e) is a simplistic view of the provision. I also accept that when making findings of fact leading to a conclusion about the existence of risk, it is appropriate to have regard to rationally probative material rather than inexact proofs. However, this relates to the fact finding about the nature of the risk rather than the question of whether s 116(1)(e) is engaged. After identifying the nature of the risk, which is a question of fact, the decision-maker must then move to determine the issue of whether the risk is or may be or would or might be a risk to the safety of the Australian community.

25. In this case, the Tribunal has before it evidence of repeated criminal offending by the applicant. There is limited evidence about the nature of the offending other than the description of the offence and, perhaps more relevantly, the criminal sentence imposed for each offence. It is clear that the applicant has engaged in repeated offending over a period and there was a period between about 2016 and 2018 where the applicant’s offending appears to have increased in its severity. Against this, it is also clear that many of his offences were drug-related and that the criminal courts objectively assessed his offending as low level, which is indicative of the sentencing outcomes. He was given bonds and probation on a number of occasions and was imprisoned for one month on one occasion and nine months on another but apparently released early. This latter sentencing involved a call-up of the earlier probation. His criminal offending is serious because of its repetitive nature but it is certainly not at the most serious end of the spectrum and, for instance, did not engage the jurisdiction for mandatory cancellation under s 501CA of the Act.

26. As observed by his Honour Judge Smith in Gong, past conduct may provide a foundation for concerns about potential future offending. Dr Cook also acknowledges this in his report, in which he states that if the applicant takes drugs in the future, it is likely that he will reoffend. Convictions relating to drug offending, particularly possession, does not of itself endanger the safety of the Australian community but more serious offences, which often result from drugtaking, such as the robbery and police obstruction offences, are offences that may raise concerns about the safety of the Australian community. The threshold to engage s 116(1)(e) is that the presence of the visa holder in Australia ‘is or may’ be a risk to the Australian community.

27. The applicant has been in immigration detention for three years and has participated in drug rehabilitation programs. He is said to be in ‘remission’ and I accept his evidence that he has avoided alcohol and drugs while in detention. However, he has not been tested in the community. There is evidence from him and from his family that he has changed. It is possible that this is and will be so, but it is also possible that he may again take the wrong path.

28. There is evidence of a significant change in his life, namely the death of his mother. Her absence and the lack of the steadfast support that she has no doubt provided, could have a negative impact on the applicant. However, the evidence of the applicant and his family is that the loss of his mother has had a very powerful impact on the applicant, and this has had and is likely to have a lasting effect on his attitude in the future. In this regard, I was impressed with the evidence of the applicant’s father and his sister.

29. Despite this optimism, it is difficult to predict the future with any certainty, and this is an issue recognised by Dr Cook in his report. As such, I find that there may be a risk that the applicant will commit further criminal offences if he does not remain abstinent. However, I find that any such risk to the safety of the Australian community appears to be low, based on Dr Cook’s assessment of mitigating factors. Relevantly, the applicant’s previous offending is at the lower end of seriousness and most of the offending does not of itself involved harm or potential harm to the Australian community. The evidence provided by the applicant after the hearing about his potential continued involvement in the OSTP and the transitional support that will be provided by his treating team, is significant. This is because abstinence from alcohol and drugs has been identified by Dr Cook as an important mitigating factor.

30. In examining whether the ground under s 116(1)(e) is established to thereby engage the exercise the discretion in relation to cancellation of a visa, it is unnecessary to consider whether the risk is low, medium or high. This is because the question that must be asked is whether there is or may or would or might be a risk to the safety of the Australian community. The relevant consideration is the risk to the safety of the Australian community and this is why it is necessary to consider the nature of any risk. For instance, if a risk related to self-harm or property offences, this may not be sufficient to engage concerns about the safety of the Australian community. In my view, the fact that an applicant’s criminal offending has been low level may ultimately be relevant to the exercise of discretion, but such a finding is of less assistance in considering the threshold issue about whether the power to cancel is enlivened. The focus is on the nature of any risk by reason of the presence of the visa holder in Australia and whether that presence (and thereby any attendant risk) is, may, would or might be a risk to the safety of the Australian community. The threshold is intentionally low, as evidenced by amendments to the legislation in 2014.[8]

    [8] Subsection 116(1)(e) was amended in 2014 by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) to introduce the concept of 'may be' or 'might be' and it is self-evident from the plain English meaning of these words that the threshold to establish the ground for cancellation was lowered as a result of the amendment: refer to the Explanatory Memorandum to the Migration Amendment (Character and General visa Cancellation) Bill 2014, p.24.

1. On the issue of whether the applicant’s possible or asserted association with the Mongrel Mob provides further evidence of risk, having regard to his evidence, which I accept, I am not satisfied that there is evidence the applicant is a member of the Mongrel Mob, that he has an association with the Mongrel Mob or that he has any interest in this gang or in joining this gang. The applicant freely admitted that he had previously associated with others who were members of the Mongrel Mob, and this was over four years ago. There is no current evidence about this and, while the Department provided the Facebook posts in response to the Tribunal request for further information, it is self-evident, because of their date, that these posts were not the source for the references in the Priority Caseload Assessment report. This report is undated but would have been in existence as at 6 December 2018 because it was referred to Department’s non-disclosure certificate of that date. These posts were after this date. It is therefore apparent that the Department sent these Facebook posts after identifying them at some later point of time, although it is unclear how and when the posts were obtained. The applicant’s evidence was that he did not make these posts while he was in immigration detention and that it is likely his former partner did this. This may or may not be the case. Ultimately, these posts were of little evidentiary value other than to support the contention that at some stage the applicant was involved with persons who may have been members or had an association with the Mongrel Mob, but this was a long time ago. Accordingly, I am not satisfied that this information is of itself sufficient to ground a finding that the applicant’s presence is or may be a risk to the Australian community. Notably, it is the evidence of the applicant’s previous offending and his drug disorders which have led to his offending and therefore my conclusion that the presence of the applicant in Australia is or may be a risk to the safety of the Australian community.

2. In summary, while there is evidence that the applicant’s level of offending was at the lower end of seriousness and there are several factors that mitigate against him reoffending, I am nonetheless satisfied that his continued presence in Australia may be a risk to the safety of the Australian committee and I am therefore satisfied that 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.

   Consideration of discretion

   Principles and relevant considerations

3. Neither the Act nor the Regulations specify any mandatory considerations that should be taken into account when exercising the discretion under s 116(1)(e). The Minister has not issued any directions about the factors to be considered but the Department has developed guidelines in PAM3 –‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s 140)’.

4. I have had regard to the circumstances of this case, including matters raised by the applicant. I have also had regard to the Department guidelines set out in PAM3 –‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s 140)’. Unless government policy is unlawful or there are cogent reasons to depart from the policy, the Tribunal should have regard to relevant government policy. However, policy should not simply be applied without independent scrutiny and to do so would be an error of law: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 and Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179.

5. The PAM3 guidelines do not appear to be inconsistent with the Act, the Regulations or case law, nor was there a submission to this effect. They are published by the Department and are comprehensive and useful. The guidelines cover such matters as:

   (1)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;

   (2)the extent of compliance with visa conditions;

   (3)the degree of hardship that may be caused (financial, psychological, emotional or other hardship);

   (4)the circumstances in which the ground of cancellation arose;

   (5)past and present conduct of the visa holder towards the Department;

   (6)whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, whether indefinite detention is a possible consequence of cancellation and whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister's intervention;

   (7)whether there would be consequential cancellations under s.140 of the Act;

   (8)whether any international obligations would be breached as a result of the cancellation, and

   (9)any other relevant matters.

6. I have therefore considered each of the factors set out in the guideline, in so far as they are relevant to the circumstances in this case, in exercising my discretion. Those matters, including any relevant submissions and evidence, are addressed below.

   Purpose of visa and whether there is a compelling reason to remain in Australia

7. I accept that the applicant’s purpose for remaining in Australia is to reside, as he has for the past 20 years, with his family. Accordingly, there is a compelling reason for him to remain in Australia. The applicant’s lawyers contend that this weighs against cancellation and I accept this submission.

   Compliance with conditions and past and present conduct towards the Department

8. There are no conditions attaching to a Special Category (Subclass 444) visa[9]. As such, this factor is neutral.

   [9] Clause 444.6 of Schedule 2 of the Regulations.

9. There is no evidence the applicant has behaved inappropriately towards the Department. This weighs in the applicant’s favour. The fact that the applicant was unlawful for a period of time was not deliberate. He was in fact disadvantaged because he was incorrectly notified of the cancellation decision. He remained in immigration detention for several years before he was on notice of the visa cancellation and, thereby given the opportunity to seek a review. For the reasons later outlined, the circumstances of the cancellation and the extended period of immigration detention, are matters that potentially weigh in favour of cancellation because they are matters that are relevant to the applicant circumstances and his hardship.

   International obligations

10. There is no evidence, nor does the applicant make a claim, that the cancellation of his Special Category visa would breach Australia’s international obligations on non-refoulement. Accordingly, this consideration is neutral. However, there is the potential for there to be a significant impact on the applicant’s daughter if his visa remains cancelled. This impact is relevant to the Convention on the Rights of the Child (the CROC) and Department guidelines about how these matters are to be considered.

11. In 1990, Australia ratified the United Nations Convention on the Rights of the Child which entered into force for Australia on 16 January 1991. Article 3 of the Convention provides:

    In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

12. It should also be noted that in the preamble to the Convention, it is stated:

    Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community …

13. In CFE16 v Minister for Immigration & Anor and CFD16 v Minister for Immigration & Anor (CFE16 and CFD16)[10], the Federal Circuit Court of Australia observed that the critical question in the proceedings was:

    Whether or not the reasons of the Tribunal member, read as a whole, indicate that the decision maker did, in fact, have regard to the relevant consideration in the Convention as a primary consideration. 

    [10] [2020] FCCA 1083.

14. This was further explained by his Honour, Judge Riethmuller, as follows:

    The distinctions in reasoning process may seem subtle until one considers the purpose and effect of the Convention. 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 a 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 that it is promoted to a position of being a primary consideration against which even serious defalcations by parents or other adults must be weighed.

    [Citations omitted]

100.   This issue was subsequently considered by the Federal Court in DXQ16 v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs[11], where the Court held that the Tribunal was bound to take into account the best interests of the appellants' two children in reviewing decisions of the Minister to cancel the appellants' visas under s 109.  Relevantly, Justice Stewart cited the decision in CFE16 and CFD16[12] with approval and stated that he was "clearly bound to follow and apply the expression of the rule" about the best interests of the child expressed by the High Court in Teoh v Minister for Immigration and Ethnic Affairs[13], as formulated in Vaitaiki v Minister for Immigration and Ethnic Affairs[14] and "followed by subsequent decisions of the Court". More recently, in Promsopa v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs[15], Allsop CJ referred to some of the matters that should be considered, such as whether children as citizens of Australia would be deprived of the benefits of citizenship, the resultant social and linguistic disruption of their childhood and the loss of educational opportunities in Australia.

[11] [2020] FCA 1184.

[12] [2020] FCCA 1083.

[13] [1995] HCA 20.

[14] [1998] FCA 5.

[15] [2020] FCA 1480.

101.   Having regard to these authorities, and consistent with Department guidelines, the best interests of the applicant’s daughter is a matter that should be given primary consideration when exercising my discretion. It is therefore relevant to consider the circumstances of his daughter, and make an assessment of her best interests.

102.   I have not taken evidence from the applicant’s daughter directly and did not request to do so in the circumstances of this case. The evidence of her mother, the applicant’s former partner, was compelling and persuasive. She had no interest in the proceedings other than to assist her daughter. She made it clear that she wanted to provide evidence in support of the applicant’s claim because of the strong bond between the applicant and their daughter and concerns that she had about the negative impact that his deportation would have on their daughter. Her evidence was corroborated by the applicant’s father and sister. I was also satisfied from the evidence of the applicant that he had a good understanding of his daughter’s interests and needs and wanted to do better, not only for his family, but so that he could see his daughter. His evidence was not embellished or contrived.

103.   If the applicant’s visa remains cancelled and he is deported to New Zealand, he and his daughter could continue to communicate over the telephone. She could visit him in New Zealand but this is not an adequate or suitable substitute for personal and regular contact within Australia. I accept the evidence of the applicant’s former partner that her daughter was anxiously calling her throughout the day to find out the progress of her father’s claim. This is evidence of a strong bond. There is no evidence that the applicant has harmed his daughter and I accept his explanation in relation to the Protection Order, which was corroborated by his former partner.

104.   There is also evidence that the applicant has a good relationship with many of his nieces and nephews who permanently reside in Australia.

In summary, I find that it is in the best interests of the applicant’s daughter, who is a child and an Australian citizen, that her father remain in Australia. I also find that it is the best interests of a number of the applicant’s nieces and nephews, particularly the children of his youngest sister, for those children to continue to have contact with the applicant in Australia. The applicant’s lawyers contend that the applicant’s daughter and other minor children in the applicant’s family will suffer hardship if he is removed from Australia and they are separated from him and this weighs against cancellation. I accept this submission and find that this factor weighs heavily in favour of setting aside the cancellation decision.

The degree of hardship that may be caused

105.   I accept there will be hardship to the applicant if his Special Category visa remains cancelled.

106.   He has lived in Australia since 2004. Most of his immediate and extended family live in Australia. He now has little connection with friends and family in New Zealand. The applicant is close to his father and sisters, particularly his younger sister and her children. There is evidence that he has a strong bond with his father, particularly since the passing of his mother, and that his father, who is unwell, may need to rely on him for assistance and care.

107.   If the applicant’s visa remains cancelled, he will be removed to New Zealand. I accept this will have a negative impact on both the applicant and his family. This will be particularly harsh for the applicant and his family given the family has recently lost the applicant’s mother who was, by all accounts, a very important central figure within the family and extended family.

108.   These matters weigh heavily against cancellation.

109.   I also accept that there will be additional hardship caused because there will be difficulties for the applicant in pursuing his aboriginal heritage and his connection with Australia and other members of this extended community.

110.   The applicant’s lawyers submitted before the previous Tribunal hearing that the detention of the applicant was unlawful because of his aboriginality, relying on the authority in Love v Commonwealth[16]. This was expressly abandoned prior to my hearing but the applicant’s lawyers maintained the previous claim that the applicant’s aboriginality is also relevant to the exercise of discretion and imposes additional hardship on the applicant because he will lose the important opportunity to establish and further his connections with his heritage.

[16] Love v Commonwealth [2020] HCA 3 and submission dated 25 August 2022.

111.   The applicant has expressed an interest in pursuing his heritage and I accept this interest is genuine, although I am not satisfied on the basis of the evidence that his desire and professed connection is as strong as represented or a strong as his mother’s undeniable interest. It was submitted that another factor I should take into account is the hardship on the indigenous community if the applicant was removed from Australia. The applicant’s representatives were unable to refer to particular persons from the indigenous community who would suffer from the applicant’s removal other than the general notion that it is desirable for people with aboriginal heritage to remain in Australia.

112.   On balance, I accept that the fact the applicant will be denied the opportunity to pursue his aboriginal heritage in Australia and that this may impose an additional hardship on him. This weighs against cancellation.

Legal consequences of cancellation

113.   If the applicant’s visa is cancelled, he will become an unlawful non-citizen and he will be liable to be removed under s 198 of the Act. This is a legal consequence of the cancellation.

114.   As already noted, s 32(2) provides that a person will only satisfy the criterion for a Special Category visa if he or she is ‘neither a behaviour concern non-citizen nor a health concern non-citizen’. Section 5 provides that a ‘behaviour concern non-citizen’ includes any person who has been removed or deported from Australia or removed or deported from any country: s 5(d) of the Act.

115. Accordingly, a New Zealand citizen who has had their visa cancelled will be unlawful and will necessarily be liable to be removed or deported. They will be unable to satisfy the criteria for the grant of a Special Category visa because they will be a behaviour concern for the purposes of s 5 and will thereby be excluded from being able to satisfy the criterion set out in s 32 of the Act. In other words, a non-citizen whose Special Category visa has been cancelled under s 116(1)(e) and who is removed from Australia, will not be able to return to Australia under this visa and will be permanently excluded from re-entry on the basis of a Special Category visa.

116.   Accordingly, this weighs against cancellation.

The circumstances in which the ground of cancellation arose

117.   The applicant’s visa was cancelled because of concerns about his criminal history and previous convictions. The offences were repeated and over an extended period. Most of the offences were drug-related and generally the applicant was sentenced to periods of probation. However, some of the latter offences were serious and the applicant was sentenced to two terms of imprisonment.

118.   The circumstances in which the ground for cancellation arose, namely his criminal convictions over a 13-year period, weigh in favour of cancellation.

Conclusion on the exercise of discretion

119.   Considering the circumstances as a whole, I have concluded that the applicant’s visa should not be cancelled.

120.   Several of the factors in the Department guidelines weigh against cancellation, in particular, the hardship that will be faced by the applicant and his family, the legal consequences that the applicant will not be able to return under a subclass 444 visa and, of considerable weight, the best interests of his daughter. Against this, the circumstances in which the ground for cancellation arose weigh in favour. In balancing these competing factors, it is relevant that the nature of the applicant’s criminal offending is at the less serious end of the spectrum and there is evidence that the risk of reoffending is low, or at least has been mitigated by several other matters. 

121.   On balance, and having regard to the particular circumstances of this case, I have concluded that the applicant’s visa should not be cancelled and the decision under review should be set aside. I therefore substitute the cancellation decision with a decision not to cancel the applicant’s visa.

DECISION

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

J.L Redfern PSM
Deputy President