Abdulqadir (Migration)

[2021] AATA 744

Abdulqadir (Migration) [2021] AATA 744 (10 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohamed Abdulqadir

CASE NUMBER:  2008022

HOME AFFAIRS REFERENCE(S):          BCC2019756140

MEMBER:Kira Raif

DATE:10 March 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 10 March 2021 at 3:10pm

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – risk to safety or good order of community – criminal convictions and imprisonment – participation in rehabilitation programs – lengthy residence from young age, extensive family ties and Australian citizen girlfriend in Australia and no support in home country – real risk of re-offending – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(e)

CASE
Gong v MIBP [2016] FCCA 561

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 30 April 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 December 2000. He was last granted the Special Category visa on 11 December 2009. In March 2019 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 provided his response to the NOICC in writing and his visa was cancelled on 30 April 2020. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 10 March 2021 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   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].

   Does the ground for cancellation exist?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the Department received information that the applicant had pleaded guilty, and had been convicted of the following offences:

26/04/19 Melbourne Magistrates Court	·     Aggravated carjacking ·     Carjacking ·     Possess controlled weapon ·     Use controlled weapon ·     Intentionally cause injury ·     Unlawful assault ·     Assault with a weapon ·     Theft of motor vehicle ·     Criminal damage ·     Theft ·     Armed robbery ·     Fail to stop	4 years 6 months imprisonment
30/11/18 Melbourne Children’s Court	Affray	Convicted and ordered to be detained at Youth Justice Centre for 3 days
24/10/18 Melbourne Children’s Court	·     Traffic methamphetamine ·     Deal property suspected proceed of crime ·     Affray ·     Unlawful assault ·     Breach of Youth Attendance order ·     Burglary ·     Theft ·     Attempt to commit indictable offence ·     Intentionally cause injury ·     Threat to inflict serious injury ·     Dishonestly u/take in retention stolen goods ·     Breach of Youth Attendance order ·     Theft ·     Robbery ·     Recklessly cause injury ·     Armed robbery ·     Attempted armed robbery ·     Theft of a motor vehicle	·     Convicted and ordered to be detained at Youth Justice Centre for 4 months. ·     Convicted and ordered to be detained at Youth Justice Centre for 3 months. ·     Convicted and ordered to be detained at Youth Justice Centre for 1 month. ·     Convicted and ordered to be detained at Youth Justice Centre for 6 months. Youth Attendance Order cancelled. Aggregate 5 months Youth Justice Centre

1. The primary decision record indicates that the applicant had previously been charged with a number of offences in relation to armed robbery and theft of motor vehicles between December 2017 and August 2018 and had served a term of imprisonment between 24 October 2018 and November 2018. The applicant confirmed this in his oral evidence to the Tribunal.

2. The applicant claims in his response to the NOICC and oral evidence to the Tribunal that his incarceration in adult prison and the possibility of his visa being cancelled made him aware of the consequences of his behaviour. The applicant states that his past conduct was caused by drugs and he is no longer using drugs. The applicant claims that he now appreciates the importance of the family.

3. In oral evidence the applicant states that he does not believe he is now a risk to the community, as he has served nearly two years in jail and had time to think. The applicant notes that he was previously in a youth detention centre which did not prepare him for adult prison and now that he has served nearly two years in an adult jail, he has changed his outlook. The applicant states that he now understands the importance of family and the possibility of his visa being cancelled and the family being taken away from him and it is a real ‘wake-up call’ for him. The applicant states that his previous offending had been due to the use of drugs and since he was imprisoned, he has completed a 44 hour drug and alcohol rehabilitation program and he is also doing a violence intervention program which is yet to be completed. The applicant states that he wants a chance to prove that he is now different.

4. The applicant told the Tribunal that while in detention, he regularly has contact with his family, although they have not been able to visit due to Covid. The applicant states that when released from prison, he will live with his parents and work at his cousin’s business. The applicant confirmed that he used to live with his parents in the past when using drugs and alcohol and offending but he states that he has been influenced by friends and he has now learned how important family has been.

5. The Tribunal does not accept the applicant’s evidence. The Tribunal is mindful that the applicant had previously been sentenced to detention at a youth detention facility and continued to offend despite his incarceration. The Tribunal does not accept that the applicant was only capable of appreciating the consequences of his conduct as a result of a longer detention in an adult prison but he failed to appreciate such consequences as a result of his detention in a youth facility. Neither is the Tribunal satisfied that the possibility of the visa cancellation would act as a sufficiently strong incentive for the applicant not to re-offend, given the extent and the nature of his past offending. The applicant states that his past conduct was caused by the use of drugs but the Tribunal is not satisfied the applicant will no longer use drugs. The Tribunal is mindful that the applicant is serving a lengthy period of imprisonment where drugs may not be as readily available as they are in the community, so his claimed resolve not to use drugs has not been tested. It may be that once the applicant is released from detention and some time has passed, the applicant can demonstrate that he is no longer affected by drugs and that he no longer wishes to engage in criminal or violent conduct. At the present time, the applicant has not demonstrated that to the satisfaction of this Tribunal. Despite any programs that the applicant may have completed, the Tribunal is not satisfied that the applicant is fully rehabilitated, given the extent of his past offending and the relatively short time that has passed since the offences were committed.

6. The Tribunal finds that the applicant had been convicted of multiple offences since around 2018. The Tribunal places significant weight on the fact that many of the offences appear to involve violence towards others, such as attempted armed robbery, assault and assault with a weapon, carjacking and intentionally causing injury. The seriousness of these offences is reflected in the fact that the applicant had been given a custodial sentence and in relation to the most recent offending, the sentence is a lengthy one of four and a half years imprisonment. The Tribunal also finds it significant that despite the earlier offending and sentencing, the applicant continued to re-offend. The Tribunal has formed the view that the applicant has little regard for the law and the welfare of others. The Tribunal acknowledges that the applicant will be incarcerated for some time but given his past conduct and repeated offending despite past incarcerations, the Tribunal is not satisfied that the imprisonment would act as a strong incentive for the applicant to change his conduct. The Tribunal is of the view that there is a real risk that the applicant may re-offend in the future. The Tribunal finds that the applicant’s presence in Australia is or may be a risk to the safety of the Australian community.

7. 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

8. 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

9. The applicant entered Australia at the age of 9 with his family and has lived in Australia continuously since that time. The applicant’s entire family reside in Australia. The applicant told the Tribunal that he has nobody outside of Australia and nobody in New Zealand. He does not think he is ready to live independently from his family but once he starts working, he will be able to. The Tribunal accepts that the applicant is fulfilling the purpose of his visa by remaining in Australia with his family. However, the Tribunal also acknowledges that the applicant is now an adult and the Tribunal does not consider that the presence of the applicant’s immediate family in Australia constitutes a compelling need for the applicant to remain in Australia.

   The extent of compliance with visa conditions

10. There is no evidence of any non-compliance with visa conditions.

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

11. As noted above, the applicant entered Australia at the age of 9 with his family. The applicant states in response to the NOICC and his evidence to the Tribunal that he has no family, no support and nothing to go back to in New Zealand. The applicant states that he is not ready to leave his family and he does not believe he is able to ‘fend for himself’. The applicant told the Tribunal that if his visa is cancelled, his family might be divided as his mother would be torn between staying in Australia or moving to New Zealand with him but her whole family is here and they had not discussed her moving to New Zealand.

12. The applicant told the Tribunal that he used to provide financial support to his family in the past, which was primarily through his employment and some of the funds was from his criminal activities. Since his arrest, his father has returned to work and they are doing well. The applicant stated that he hopes he could find a job in New Zealand. The applicant has not presented any documentary evidence concerning his family’s finances. Given the applicant’s evidence that his father has been able to work and the family is doing ‘well’, the Tribunal is not satisfied that financial hardship would be caused to the applicant or the family if the visa is cancelled.

13. The applicant states that if his visa is cancelled, it would separate him from his girlfriend, who is an Australian citizen. He claims they have a close relationship and at one point they were considering getting married. He is not sure whether she could sponsor him for a visa in the future or whether she would move to New Zealand if his visa is cancelled. The Tribunal accepts that if the applicant was to leave Australia, that may lead to the separation of the applicant and his partner.

14. The Tribunal accepts that the applicant has extensive family ties in Australia and very limited, if any, support in New Zealand. The Tribunal accepts that the applicant would have to re-establish himself in New Zealand. The Tribunal accepts that considerable hardship would be caused to the applicant and his family if the visa is cancelled.

    Circumstances in which ground of cancellation arose.

15. 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. The applicant states that he is now a different person and would not go back to that lifestyle and the life of crime. He states that his past periods of imprisonment were short periods and did not affect him but he has now served two years of jail and had plenty of time of self-reflection and he has now changed. As noted above, the Tribunal does not accept that evidence. The Tribunal is mindful that despite the past detention, albeit for shorter periods, the applicant continued to re-offend and the most recent offending appears to have been more serious and violent in nature.

    Past and present behaviour of the visa holder towards the department

16. Nothing adverse is known about the applicant’s behaviour towards the Department.

    Whether there would be consequential cancellations under s.140

17. There are no persons who would be affected by the consequential cancellation.

    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

18. 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. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be an unlawful non-citizen and subject to detention and possible removal from Australia. 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 without the Minister’s intervention, although there will be limited opportunities for him to do so in Australia as a result of the cancellation. The applicant would be subject to an exclusion period in relation to future visa applications.

    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

19. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations arise in this case. The Tribunal finds that Australia’s non-refoulement obligations would not be breached as a result of the cancellation.

20. The applicant claims his entire family, including parents and siblings, reside in Australia. The Tribunal finds that principles of family unity may require his presence in Australia.

21. The applicant states that his brother and sister, who are aged 10 and 14, would be affected by the cancellation of his visa. The applicant states that when he lived at home, he was their role model and they would talk to him with any issues. Since his detention, he speaks to them often on the phone. The Tribunal accepts that evidence but given the nature and the extent of the applicant’s offending, the fact that his pat conduct involves extensive criminal behaviour and, importantly, violence towards others, the Tribunal does not consider that the applicant’s presence offers a good example to his younger siblings. The applicant told the Tribunal that he did not bring problems home and even if he did anything outside, nobody at home would know about it. Nevertheless, given the nature and extent of the applicant’s past convictions, the Tribunal does not consider it is in the best interests of his minor siblings to witness such behaviour or its consequences. The applicant also told the Tribunal about his past drug and alcohol use and, again, the Tribunal does not consider it is in the best interests of these siblings to observe the use and effect of drugs and alcohol. The Tribunal has formed the view that there remains a risk of reoffending and if the applicant was to reoffend, the Tribunal does not consider it would be in the best interests of his young siblings to be in the same household. The Tribunal is also mindful that even if the applicant was to leave Australia, he can maintain contact with his siblings by electronic means and there may be a possibility of future travel. The Tribunal has formed the view that the best interests of these children would not be adversely affected by the cancellation of the visa.

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

22. The visa in question is not a permanent visa, although it allows long term or even permanent residence in Australia. The Tribunal acknowledges that the applicant has strong family ties in Australia.

    Any other relevant matters

23. The applicant did not raise any other matters.

24. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant’s presence in Australia is or may be a risk to the safety of the Australian community and that there are grounds for cancelling his visa. The Tribunal accepts that the applicant has extensive family ties in Australia and little or no support overseas. The Tribunal acknowledges that the applicant has lived in Australia from the time he was a child and has formed strong ties to Australia and that significant hardship would be caused to the applicant and his family if the visa is cancelled because the applicant may be required to leave the country which he considers to be his home and will have to live independently and ‘fend for himself’ which he does not consider himself to be ready for. The Tribunal accepts that the cancellation of the visa and the possible departure of the applicant from Australia would affect his relations in Australia and may be contrary to the principles of family unity. The length of the applicant’s residence in Australia and the extent of his ties in this country offer strong reasons why the visa should not be cancelled.

25. However, the Tribunal has decided to place greater weight on the circumstances in which the ground for cancellation arose. In particular, the Tribunal places significant weight on the nature and extent of the applicant’s past convictions. The list of convictions, set out above, is extensive and, what is of most concern to the Tribunal, these involve several offences of violent nature. The Tribunal does not accept the applicant’s evidence that he has now reformed as he had time to think about his conduct while in jail as his past imprisonment, albeit for shorter periods and in youth detention facilities, did little to alter the applicant’s behaviour. He continued to offend once released from detention and the offending appears to have become more serious, with the level of violence escalating. The Tribunal has formed the view that insufficient time has passed since the most recent offending, and the applicant has not lived in the community since the most recent convictions, to establish that his future conduct would be different and the Tribunal has found that there remains a risk of reoffending, despite the applicant’s participation in rehabilitation programs and his assurances otherwise.

1. The Tribunal has formed the view that the best interests of the children would not be adversely affected by the cancellation. The Tribunal is mindful that the family can visit the applicant in New Zealand in the future and he may be eligible to make applications for other visas, although there can be no guarantee that a visa would be granted to him in the future and any visa assessment will include consideration of his character.

2. Despite the significant hardship that the cancellation of the visa would cause to the applicant and his family, having considered all the circumstances of this case, the Tribunal has concluded that the visa should be cancelled

   DECISION

3. The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

   Kira Raif
   Senior Member