Abdullahi (Migration) - [2022] AATA 5064

Abdullahi (Migration) [2022] AATA 5064 (16 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Zakaria Abdirashid Abdullahi
CASE NUMBER:  2013753
HOME AFFAIRS REFERENCE(S):          BCC2019/5338566
MEMBER:Kira Raif
DATE:16 August 2022
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 16 August 2022 at 2:22pm
CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – ground for cancellation – risk to safety of Australian community or individual – criminal history – serious and repeated nature of the offences – consideration of discretion – presence of family in Australia – length of residence in Australia – degree of hardship – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.41
CASES
Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80
STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision dated 20 August 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 444 (Special Category) visa under s.116 of the Migration Act 1958 (the Act).
The applicant is a national of New Zealand, born in July 2001. He was last granted the Special Category visa in September 2018. On 28 February 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that there may be grounds for cancelling his visa under s.116(1)(e) of the Act. The applicant did not respond to the NOICC and his visa was cancelled on 20 August 2020. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 16 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother Ms Abdullahi and social worker Ms Cara Morrisey. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Relevant law
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(e). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Abdullahi (Migration)

Details

AGLC: Abdullahi (Migration) [2022] AATA 5064
Case: [2022] AATA 5064
Decision Date: 16 August 2022

CaseChat Overview and Summary

This matter concerned an appeal by Mr Abdullahi against a decision to cancel his Subclass 444 (Special Category) visa. The cancellation was based on the ground that the appellant’s conduct was such that he was a risk to the safety of the Australian community or an individual, due to the serious and repeated nature of his criminal offences. The Administrative Appeals Tribunal was required to consider whether this ground for cancellation was made out and, if so, whether to exercise its discretion not to cancel the visa.

The Tribunal first considered whether the ground for cancellation under section 116(1)(e) of the *Migration Act 1958* (Cth) was established. Having found that the ground was made out, the Tribunal then turned to consider whether to exercise its discretion to cancel the visa. In doing so, the Tribunal had regard to the applicant's circumstances, including his arrival in Australia as a young child in approximately 2005, his continuous residence in Australia for most of his life, and the presence of his immediate family in Australia. The Tribunal also considered the applicant's period of residence in Africa between 2016 and 2018, and his capacity for independent living and self-support.

The Tribunal acknowledged the applicant's strong family ties in Australia and his role in supporting his younger siblings. However, it also noted that the applicant had demonstrated an ability to live away from his immediate family in Australia for a period and that maintaining family relationships by electronic means would be possible even if he were to leave Australia. Despite these considerations, the Tribunal concluded that, when considering all the circumstances, the visa should not be cancelled.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel Mr Abdullahi's Subclass 444 (Special Category) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelleddecision The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is 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 There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.The 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 In his written submission to the Tribunal the applicant states that he arrived in Australia in 2018 [sic] with his immediate family and has resided here since. The applicant notes that he came at the age of 3 and has resided in Australia continuously except when he lived in Africa with his grandparents between 2016 and 2018. He told the Tribunal that his mother came to Australia to have a better future for the family. In oral evidence the applicant explained that he travelled to Africa because his mother wanted him to get away from the bad influences in Australia and also to look after his grandmother who was not well. While in Africa, he was living in a boarding school and his mother and grandmother supported him. The applicant states that his family reside in Australia and he does not have any one in New Zealand (which does not seem to be correct as his father resides in New Zealand, even if the applicant claims they are estranged from each other). He states that there is a compelling reason for him to remain in Australia. The Tribunal accepts that the applicant arrived in Australia as a young child and has been living in Australia since about 2005, including in his formative years. The Tribunal accepts that the applicant’s immediate family reside in Australia and he has limited family links to other countries. The Tribunal acknowledges his evidence that he has no support in New Zealand. However, the Tribunal is also mindful that the applicant is an adult who should be capable of independent living and he has not satisfied the Tribunal that his circumstances are such that it would be impossible for him to live independently and support himself. The Tribunal is mindful that despite his family links in Australia, the applicant (or his mother) did make the decision to spend two years in Africa between 2016 and 2018, suggesting that he is not incapable of living away from his immediate family in Australia. The applicant told the Tribunal that he has grown up in Australia and has the responsibility of supporting his younger siblings. He would take them to soccer and help with school work and answer questions. The Tribunal accepts that the applicant has a good relationship with his siblings. The Tribunal is also of the view that the applicant would be able to maintain his relationship with his family, even if he was to leave Australia, by electronic means, even if the nature and quality of such a relationship is not the same as what the applicant may experience if he is to remain in Australia.