2306220 (Migration)

Case [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…

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AGLC
2306220 (Migration) [2023] AATA 3353
Case
[2023] AATA 3353
Decision Date

CaseChat Overview and Summary

This matter concerned a review of the cancellation of a Class TY Subclass 444 Special Category (Temporary) visa under section 116(1)(e)(i) of the *Migration Act 1958* (Cth). The applicant, who had resided in Australia for nearly 20 years, had a lengthy criminal history, including convictions for drug-related offences, public nuisance, and assault. The delegate determined that the applicant's criminal behaviour indicated a risk to the safety of the Australian community and issued a notice of intention to cancel his visa. The applicant sought review of this decision.

The primary legal issues before the court were whether the ground for cancellation under section 116(1)(e)(i) was established, and if so, whether the power to cancel the visa should be exercised. This involved assessing the risk posed by the applicant's presence in Australia to the health, safety, or good order of the Australian community, considering all available information, including the nature of his convictions and his personal circumstances. The court was also required to consider the degree of hardship to the applicant and his family, the circumstances surrounding the grounds for cancellation, the legal consequences of cancellation, Australia's international obligations, and the best interests of the child.

The court found that while the ground for cancellation under section 116(1)(e)(i) was established due to the applicant's criminal history, the decision to cancel the visa was not justified. The court applied the principles that the assessment of risk must be based on all available information, including the applicant's personal circumstances at the time of the review, and that the ordinary meaning of "risk" as the chance of injury, loss, or hazard applies. In exercising its discretion, the court weighed the seriousness of the offending against factors such as the applicant's long period of residence in Australia, his strong family ties, the fact that many of his offences did not involve serious offending, and the potential impact on his child.

Ultimately, the court set aside the delegate's decision to cancel the applicant's visa and substituted a decision that the visa should not be cancelled.

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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. 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. 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.

Evidence

Evidence Before The Court

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 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. 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. [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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 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? 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. 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. 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. 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 3rd edition, 2001. 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].