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

1. 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).

2. 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.

3. 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

4. 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.

5. A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

6. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

   Does the ground for cancellation exist?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that  the Department received information concerning the applicant’s criminal record, as follows:

26/09/19 Melbourne Children’s court	Cyclist fail wear approved bicycle helmet Threat to inflict serious injury Assault by kicking (2 charges) Fail to answer bail (2 charges) Theft from shop (shopsteal) (3 charges) Unlawful assault Theft of a motor vehicle (3 charges) Commit indictable offence whilst on bail Known thief loiter in public place w/o auth/excuse enter private place aggravated burglary – person present	Without conviction. The accused is released on a Youth Supervision Order for a period of 10 months
26/09/19 Melbourne Children’s Court	Negligently deal with proceeds of crime	Without conviction. The accused is released on a Youth Supervision Order for a period of 10 months
26/09/19 Melbourne Children’s Court	Armed robbery	Without conviction. The accused is released on a Youth Supervision Order for a period of 10 months
30/07/19 Bail and Remand Court	Fail to answer bail Theft Reputed thief loiter in public place	Without conviction, fined an aggregate of $750
30/07/19 Melbourne Children’s court	Assault by kicking	Convicted and ordered to be detained in a Youth Justice Centre for 7 days
30/07/19 Melbourne Children’s court	Possess Diazepam	Without conviction, fined $250
26/07/19	Theft Threaten to assault police officer Known thief loiter in public place Fail to answer bail	Sentenced to an aggregate of 100 days
20/08/19	Assault in company (2 charges) Assault by kicking Affray Unlawful assault (2 charges)	Sentenced to aggregate of 100 days
22/08/19	Criminal damage (intent damage / destroy) Theft from shop (shopsteal) (2 charges)	Sentenced to an aggregate of 100 days
13/09/19	Act prejudicial – security / order / mgmt. gaol Assault by kicking Assault in company Unlawful assault (2 charges)	Sentenced to an aggregate of 100 days
24/09/19	Theft from shop (shopsteal)	Sentenced to an aggregate of 100 days
26/07/19	Theft Threaten to assault police officer Known thief loiter in public place Fail to answer bail	Sentenced to an aggregate of 100 days

1. The primary decision record indicates that the applicant has been charged with several other offences with the court date in December 2020:

27/10/19	Robbery Armed robbery (3 charges) Obtain property by deception
28/10/19	Robbery (5 charges)
02/11/19	Handle stolen goods
29/11/19	Possess drug of dependence Cannabis

1. In his written submission to the Tribunal of 10 August 2022 the applicant confirms his criminal history from 2016 and states that he was most recently convicted for theft, robbery (2 counts), obtaining property by deception, handle stolen goods and possession of cannabis and was sentenced to a 18 months Community Corrections Order. He told the Tribunal that the Community Corrections Order will commence if he is released into the community.

2. The Tribunal considers the applicant’s criminal history to be extensive. It shows repeated behaviour and includes serious offending such as assault, threats to others, possession of drugs and robbery. Some of these offences involved violence, or threats of violence against others.

3. The applicant told the Tribunal that he does not believe he is a risk and he was ‘going through a bad stage’ in his life when the offences were committed. The applicant stated that he was depressed at the time and was taking drugs because he did not know how to handle it and to take his mind off things. The applicant confirms that he was not diagnosed with depression but looking back, he thought he was depressed. The applicant states that he did not have support at the time and did not know how to speak out and he did not want to discuss things with his mother as she had “too much on her plate” and other children to worry about. 

4. In his evidence to the Tribunal the applicant had expressed remorse for his past offending and states that that he is now aware of the consequences of his offending. The applicant states that spending time in prison was ‘a wake up call’. The applicant refers to the sentencing remarks of Blair J who also recognised the good prospects of rehabilitation. The applicant told the Tribunal that he is not the same person that he was before. The applicant’s evidence is supported his social worker, Ms Morrissey, who gave oral evidence to the Tribunal and expressed the view that the applicant is now aware of the consequences of his conduct, is more mature, able to distinguish between good and bad influence and able to deal with bad influences. The Tribunal acknowledges that evidence but is also mindful that the applicant has been in detention for approximately two years and had only spent very limited time in the community since the most recent offences were committed. There has been no opportunity to test the applicant’s resolve not to engage in crime and not to use drugs and to avoid bad influence and in the Tribunal’s view, it cannot be said with any degree of certainty that, should the applicant be released into the community, he will not engage in the same conduct, or be subject to the same bad influences, as he was before.

5. The Tribunal is mindful of the evidence that the applicant had spent two years in Africa between 2016 and 2018, partly because his mother wanted him to get away from the bad influence in Australia, yet upon return to Australia, the applicant returned to his old friendships and committed multiple offences. The applicant explains that he was 17 at the time and he was young and immature. The applicant states that he is more mature now and is no longer a child and he has now been locked in a cell for most of the day and does not want to be in jail again. The applicant states that  the prison has been a ‘wake up call’ for him. The Tribunal gives his evidence some weight but does not find it highly persuasive.

6. The Tribunal has also formed the view that the applicant has had minimal engagement in formal rehabilitation programs. He told the Tribunal that while in detention, he had completed a drug and alcohol course and an anger management course, each of about 2-3 weeks in duration. He states that he could not complete or do other courses because of COVID. The applicant states that it is a requirement of the Community Corrections Order that he has to see a psychiatrist but he has not made any arrangements for that yet. (The applicant provided to the Tribunal a copy of the sentencing remarks and these do not appear to suggest that the applicant must see a health professional, rather the applicant is encouraged to complete formal rehabilitation courses.)

7. The Tribunal places some weight on the fact that the offending occurred over a period of time and involved multiple / separate offences. Thus, the offending was not a spontaneous action or response to some stimuli. The Tribunal places significant weight on the fact that the applicant has spent very limited time in the community since the most recent offending and while the Tribunal accepts that detention may have been a ‘wake up call’ for the applicant, the Tribunal is also of the view that his willingness to change his life has not been tested in the community where bad influences and drugs will be much more readily available to him. Further, while support services are available to the applicant now, these will be of little benefit to him if he chooses to disengage.

8. In these circumstances, the Tribunal has formed the view that the risk of re-offending continues to exist and that risk is not an insignificant one. The Tribunal finds that the applicant’s presence in Australia is or may be a risk to the safety of the Australian community or segments of the community.

9. 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

10. 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

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. In the particular circumstances of this case, the Tribunal does not consider that the presence of the applicant’s family in Australia and the length of his residence in Australia constitute a compelling need for the applicant to remain in Australia.

    The extent of compliance with visa conditions

17. Nothing adverse is known about the applicant’s compliance with visa conditions and the applicant notes that there were no conditions attached to his visa.  

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

18. In his written submission to the Tribunal the applicant states that he is 21 years of age and had spent over 14 years of his life in Australia. His immediate family (mother and five siblings) live in Australia and he has a close relationship with them and three of his siblings are Australian citizens. The applicant states that if his visa is cancelled, his siblings will be adversely affected as they would not have an older brother in their life and his family would be devastated. The applicant also states that due to financial hardship, his family will not be able to visit him in New Zealand and his mother would be devastated. In his declaration to the Tribunal the applicant refers to the family activities he and his family had performed together, outlining the adverse effect his return to New Zealand would have on his family.

19. The applicant told the Tribunal that he has no family in New Zealand, no income and no place to live. The applicant states that his mother does not have sufficient funds for the family to visit him. The Tribunal acknowledges that evidence, although the Tribunal is mindful that the applicant is an adult and may be expected to support himself, for example, by working. The Tribunal accepts the applicant’s evidence that he has no support in New Zealand but there is no reason why the applicant could not approach support services in New Zealand like he has done in Australia.

20. There are before the Tribunal statements from the applicant’s family. In particular, his sister refers to her desire for the applicant to remain in Australia and the applicant’s mother describes the close relationship between the applicant and his siblings. The applicant’s mother also states that if the applicant was to live in New Zealand, the entire family may relocate to New Zealand, which may cause financial and other hardship. In oral evidence, the applicant’s mother spoke about the relationship between the applicant and his siblings and the effect that his departure from Australia may have on the family.

21. The Tribunal has also had regard to the evidence of Ms Morrissy, a social worker, who confirms the adverse effect on the family if the applicant’s visa was cancelled and if he was required to leave Australia. In particular, the Tribunal places considerable weight on Ms Morrissy’s assessment that the cancellation of the applicant’s visa may have adverse impact on the mental health of his mother, as well as impact the applicant’s own well-being and ability to rehabilitate. There is also before the Tribunal a statement from Ms Makdessi of O Street who has also expressed the view that the applicant’s departure from Australia may adversely impact the applicant and his family, as well as the broader community. The Tribunal is prepared to accept that evidence. 

22. The Tribunal accepts that the applicant and his mother and siblings have a close relationship and the Tribunal also accepts that they would be affected and saddened if the applicant was to depart Australia. The Tribunal also accepts the evidence from the applicant’s mother about the effect the separation from the applicant may have on her. However, as noted above, the Tribunal does not accept that a family relationship can only exist where family members live in the same country or in geographical proximity. The Tribunal has formed the view that the applicant’s relationship with his family and his siblings can continue even if he does not live in Australia (while the Tribunal acknowledges that relationship may not be of the same quality) and the Tribunal is also of the view that the applicant can continue to provide support to his younger siblings and his mother whether or not he lives in Australia. The applicant’s evidence to the Tribunal is that despite his incarceration over the past two years he has maintained daily contact with his younger siblings and there is no apparent reason why that arrangement cannot continue if the applicant was to live elsewhere.

23. The applicant submits that he has no family in New Zealand as he is estranged from his biological father. The applicant states that he would have nowhere to live and no social support. The applicant states that he has not worked and may find it difficult to find employment without support from others. The Tribunal accepts that evidence but, again, notes that the applicant is an adult and he has not established that for whatever reason, he is not capable of independent living, which may include settling in a new country (noting the similarities in culture and language between New Zealand and Australia), arranging accommodation and finding employment. The Tribunal accepts that all these matters may cause hardship to the applicant but the Tribunal does not consider such hardship would be significant or long-term.

1. Overall, the Tribunal accepts the evidence of the applicant, his family and those around him that the applicant’s departure from Australia, and the separation from his immediate family in Australia, are likely to cause considerable hardship to the applicant and his family. The Tribunal is prepared to accept that some (albeit lesser) hardship would be caused to the applicant by the need to establish himself in New Zealand, to find accommodation and gainful employment and establish social, community and other ties in that country. The Tribunal acknowledges that the hardship that the cancellation would cause to the applicant and others weighs heavily against the cancellation.

   Circumstances in which ground of cancellation arose

2. The ground for cancellation arises because the Tribunal has formed the view that the applicant’s presence in Australia is or may be a risk to others.

3. In his submission to the Tribunal the applicant notes that since the cancellation of his visa, which was based on him being charged with criminal offences, he had been convicted and given a 18 months community corrections order, which is at the lower end of available sentencing options. The applicant refers to the sentencing remarks of Blair J and while the Tribunal acknowledges those remarks, the Tribunal’s assessment that  the applicant may be a risk to others is based on the entirety of the applicant’s offending behaviour and not the most recent offending.

   Past and present behaviour of the visa holder towards the department

4. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

   Whether there would be consequential cancellations under s.140

5. There are no consequential cancellations.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

6. If the applicant’s visa is cancelled, unless he is granted another visa, the applicant would be an unlawful non-citizen and may be detained and removed from Australia. There is no suggestion that he will be detained indefinitely. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application in Australia without the Minister’s intervention, although there will be limited opportunities for him to do so in Australia as a result of the cancellation due to the operation of s. 48. The applicant would be subject to an exclusion period in relation to future visa applications.

7. In his submission to the Tribunal the applicant also states that if his visa is cancelled, he will be considered as a ‘behaviour concern non-citizen’ and may be unable to obtain another Special Category visa in the future and he would otherwise have limited prospects of returning to Australia through other pathways. The Tribunal accepts that evidence and acknowledges that these circumstances will also cause considerable hardship to the applicant and his family and they weigh against the cancellation.

   Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

8. The applicant’s immediate family, including his mother and siblings, reside in Australia and the principles of family unity may require his presence in Australia.

9. The applicant states that he would experience mental harm if he returns to New Zealand. The Tribunal does not accept that evidence, particularly as the applicant has not satisfied the Tribunal that he would not be able to access mental health support in New Zealand. The Tribunal does not consider that Australia’s non-refoulement obligations arise in this case.

10. The applicant refers to his younger siblings and his close relationship with them. There are before the Tribunal statements from the applicant’s family members. The applicant submits that the cancellation of his visa would not be in the best interest of his minor siblings. The told the Tribunal his siblings are aged 19, 18, 16, 14 and 12. They speak daily on FaceTime and his family had visited him in detention and the applicant concedes that they will be able to maintain contact if he is to live in New Zealand although he states it would not be the same due to his other commitments. The applicant states that if his visa is cancelled, he would not be able to support his siblings in the way he has.

11. The applicant’s representative submits that the cancellation of the visa may affect the mental health of the applicant’s mother, and this would in turn affect the other children. The representative also submits that if the applicant was to leave Australia, his mother will need to provide financial support to him, which may also impact on the other children.

12. For the reasons stated above, the Tribunal does not necessarily accept that the applicant will not be able to maintain a relationship with his younger siblings if he is to leave Australia as a result of his visa being cancelled but the Tribunal acknowledges that any such relationship may not be of the same quality and any contact between them would be more limited than if the applicant was to live in Australia. The Tribunal accepts the evidence that the applicant has a close relationship with his family in Australia and is prepared to accept the evidence of  Ms Makdessi and Ms Morrisey, both of whom have had considerable engagement with the applicant and his family, that if the visa is cancelled, this would have an adverse impact not only on the applicant and his mother but also his siblings.

13. In these circumstances, the Tribunal has formed the view that it is in the best interests of the applicant’s minor siblings that his visa is not cancelled.

14. The applicant also submits that his removal from Australia may affect Australia’s international relations with New Zealand, given that he has been living in Australia since he was a toddler. However, this country’s international relations are not a matter for this Tribunal.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

15. The visa in question is not a permanent visa, although it may allow long term or even permanent residence in Australia.

16. In his submission to the Tribunal the applicant states that he is the eldest of 6 children, he moved to Australia with his mother and siblings in 2005 and three of his siblings are Australian citizens. The Tribunal accepts the applicant has strong family ties in Australia.

    Any other relevant matters

17. The matters raised by the applicant have been addressed above.

18. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal  has found that the applicant’s presence in Australia is or may be a risk to the good order of the Australian community and to the safety of others and that there are grounds for cancelling his visa.

19. In considering the exercise of discretion, the Tribunal has decided to give the greatest weight to the following considerations. First, the length of the applicant’s residence in Australia, the strength of his ties to Australia and the hardship that the cancellation of the visa would cause. The applicant has been living in Australia since 2005 and has not travelled outside of Australia except for his two year residence in Africa, where he stayed under care of his grandparents. He told the Tribunal that if his visa is cancelled, he would live in New Zealand where he has no family or social support, no place to live and no job. While the Tribunal is of the view that the applicant will be able to acquire all of these in the future, there is no doubt that at least initially, his departure from Australia, from his family and community support would cause him considerable hardship. This is particularly so given the applicant’s age. He is young and has spent about two years since reaching the age of majority in detention rather than acquiring life skills in the community. While these factors may constitute risk factors for future re-offending, they will also make it more difficult for the applicant to adapt to life in a different country without support.

20. Secondly, the Tribunal places weight on the hardship that the cancellation of the visa and the applicant’s departure from Australia would cause to his family. The evidence before the Tribunal is that there is a close relationship between the applicant and his mother and siblings and the applicant referred to being a role model and having daily contact with his younger siblings. The Tribunal accepts that the cancellation of the applicant’s visa could adversely affect the applicant’s mother and siblings and, importantly, the Tribunal has formed the view that the  cancellation of the visa would not be in the best interests of the minor siblings.

21. Thirdly, the Tribunal acknowledges that if the applicant was to remain in Australia and if he is released from detention, the applicant would be subject to the supervision of the Community Corrections Order, which would enable him to engage in further rehabilitation programs. The applicant has the support of the community and, at least at present, willingness to engage with the support services. It is hoped that through these the applicant will be able to seek educational and employment opportunities. The applicant claims that he now understands the significance of his conduct and appreciates the consequences of his actions. Should the applicant reoffend, his visa may be cancelled again and the applicant would be under no misapprehension that there will be a real chance that he would have to leave Australia and be separated from his family, should his offensive conduct be repeated.

22. The Tribunal has formed the view that the serious and repeated nature of the offences, and the potential risk the applicant may still pose to the community weigh in favour of the cancellation but in the particular circumstances of this case, the factors set out above outweigh such considerations. 

23. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    decision

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

    Kira Raif
    Senior Member