ARACENA FLORES (Migration)

[2018] AATA 4711

ARACENA FLORES (Migration) [2018] AATA 4711 (11 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gonzalo Andres ARACENA FLORES

CASE NUMBER:  1815360

HOME AFFAIRS REFERENCE(S):           BCC2018/1735884

MEMBER:Denise Connolly

DATE:11 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

Statement made on 11 October 2018 at 11:07am

CATCHWORDS
MIGRATION – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Business (Long Stay)) – risk to the safety of Australian community – criminal charge – bail granted – only offence in Australia – applicant’s mental health – court proceedings – downgraded charges – applicant’s mental health – engaged in treatment voluntarily – shown remorse – low risk of harm – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116

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 24 May 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a citizen of Chile and has resided in Australia since November 2014, most recently as the holder of a Subclass 457 visa which was granted in October 2016. He was sponsored to work as an electrician for Jag Tech Pty Ltd. His former partner Paula Francisca Poblete Espina was granted a visa as his dependant.

3. In April 2018 the applicant was charged with Wound person with intent to cause grievous bodily harm, Crimes Act 1900, s.33(1)(A). On 17 April 2018 the Department was informed by NSW Police of the charge and that the applicant was currently on bail. The circumstances leading to the charge are set out below. On 4 May 2018 the Department issued a Notice of Intention to Consider Cancellation under s.116 of the Act explaining that there appeared to be a ground to cancel the applicant’s Subclass 457 visa under s.116(1)(e)(i) of the Act. The applicant was invited to provide comments on the information and show why the ground for cancellation did not exist, or give reasons why his visa should not be cancelled. The applicant’s response was provided on 16 May 2018 and is discussed in more detail below. The delegate then cancelled the visa under s.116(1)(e) of the Act on the basis that the presence of the applicant in Australia may be a risk to the safety of the Australian community.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 14 August and 10 October 2018 to give evidence and present arguments.

6. The applicant was represented in relation to the review by his registered migration agent who did not attend the hearing.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant has provided to the Tribunal a copy of the delegate’s decision record which records the following information. According to NSW Police, it is alleged that on 8 April 2018 the applicant attended a hotel in Newtown with a friend and Patricio (the alleged victim) who the police claim was previously unknown to the applicant. It is alleged that at approximately 4AM the applicant became involved in an argument with the alleged victim and began punching him. The two were then involved in a physical fight. They separated briefly and walked away from each other. It is alleged the applicant then picked up a piece of glass and ran across the road approaching the alleged victim while his back was turned. It is alleged that the applicant used the piece of glass to attack the alleged victim, causing three lacerations. The alleged victim attended Fairfield Hospital where he received a total of eight stitches to lacerations on his lower back. On 9 April 2018 the applicant was interviewed by police. According to police, the applicant admitted that he had a physical altercation with the alleged victim, had picked up a piece of glass and intentionally engaged with the alleged victim in a physical confrontation. According to police the applicant’s alleged actions in attacking the alleged victim were reckless, and showed a complete disregard for the safety of the alleged victim. As a result the applicant was charged with Wound person with intent to cause grievous bodily harm.

9. The delegate records that the applicant was sent a NOICC and invited to provide comments on the information.  The following information was provided in response by the applicant’s then representative. On 7 April 2018 the applicant and his friend and another person (the alleged victim) were drinking at his house. The parties went out “clubbing” and visited another friend in Bondi. A conversation took place about the applicant’s partner which upset him. After leaving Bondi the alleged victim started mocking the applicant and calling him names. A verbal argument took place however they arrived at the club and forgot about their previous argument. At about 4AM the applicant was told to leave the club because he had had too much to drink and after a while the other men joined him outside. Two parties walked ahead to get some food and the applicant walked with the alleged victim who made the applicant angry by saying that the applicant’s partner had cheated on him. The applicant responded with words that offended the alleged victim who then started to fight the applicant. The applicant felt intimidated as the alleged victim threatened the applicant and his partner. The alleged victim threw the applicant to the ground and kicked him, leaving him with serious injuries to his back, knees, elbows and a broken and bleeding nose. The applicant walked away to go home and stopped in a park to rest. At this point he received a phone call from a friend saying that they would look to retaliate. When the applicant arrived home he found that his car had been totally destroyed and the windows broken. When he woke he read various text messages from the alleged victim saying he would hurt the applicant and destroy his other car.

10. The representative asserts that this is the only police issue the applicant has ever had in his life. He and his partner came to Australia to be part of the community and he focused on his job and being a better person. There is nothing that happened on the night that represents the applicant’s true self; it was unusual. He does not believe he would have been involved in the incident if he had not been provoked by the alleged victim, who made him fear for his life. He took the alleged victim’s threat seriously because he had heard about the alleged victim’s bad past. It was argued that the police sheet did not include all of the information but once the matter is heard in court the evidence that the applicant has on his mobile device will confirm that he was threatened. The reason the applicant engaged in the altercation was because he had been threatened and feared for his life. He intends to plead not guilty. The charges against him are unproven and he should be given the protection of the presumption of innocence. It is asserted that the applicant will not be a threat to the Australian community.

11. The Tribunal has also seen other documents on the Department’s file including the Facts Sheet from NSW Police which includes other information as follows. The applicant was employed as an electrician and had no prior criminal history in NSW. Police formed the view the applicant posed a flight risk as he had links to family in Chile. It is recorded that the applicant openly admitted to willingly and intentionally injuring the accused. Police were concerned that if the applicant was granted bail he may approach the victim or a witness and further assaults and injury may occur. It is alleged that after injuring the victim the applicant left the victim and returned home in a taxi. It is alleged that the witness called the applicant on his mobile phone and the accused said “I was crying for an hour. I regret that I stabbed your friend”. Police record that the applicant was located and placed under arrest and cautioned. It is alleged that during the interview the applicant admitted that he had left a physical altercation with the victim, had picked up a piece of glass, and willingly and intentionally reengaged with the victim. It is alleged that the applicant stated “I attacked him” and when asked why he assaulted the victim the applicant replied “to get revenge”. When asked if, at the point of crossing the road, he had any other alternative action, it is alleged he said “to leave, but I didn’t”. The police recorded that they observed grazes on the applicant’s elbows, knees and lower back. When asked how he got those injuries, it is alleged he claimed that they were the result of falling while fighting with the victim.

12. The Tribunal has had regard to the written submission provided in response to the NOICC which was summarised by the delegate. The representative also made submissions in relation to the circumstances to be taken into account when considering whether to cancel the visa. The representative noted that the applicant is in Australia as the holder of a Subclass 457 visa with an Australian company, working as an electrician on major projects across Sydney. The representative provided evidence demonstrating that in NSW there is a shortage of electricians. The applicant is working in a highly skilled role where there is a shortage. The applicant and his partner had complied with all visa conditions prior to the incident. With respect to hardship, the representative asserted that the applicant would face significant financial and emotional hardship if the visa was cancelled as he would have no work rights and therefore would not be able to support his partner. There is also the possibility that the applicant would become unlawful and be detained pending the criminal proceedings. It was advised that the applicant was undergoing a “physiological” assessment of the impact of the cancellation, his current state of mind and the likelihood of whether he would be involved in future assaults in Australia. It is asserted that the applicant was involved in an altercation with a known person and at the time he believed his life was under threat. The applicant has evidence on his mobile device confirming that he has been threatened. The applicant has always been compliant with both Immigration and the police, and bail was granted. He has not been involved previously in any criminal matter. He will not be a threat to the Australian community as he has lived in the community and not involved in any criminal activity. He sought that the decision not be made until the criminal proceedings were completed.

13. On 11 July 2018 the Tribunal invited the applicant to a hearing on 9 August 2018. At that stage the Tribunal was not aware that the applicant had been detained. On 16 July 2018 the applicant’s representative contacted the Tribunal and indicated that he wished for the case to be deferred because the applicant was involved in separate criminal proceedings in another court. He sought for the hearing to be postponed until October 2018. The Tribunal considered this request however decided not to postpone the hearing.

14. The applicant was to appear before the Tribunal on 7 August 2018 however on 8 August 2018 the applicant’s representative contacted the Tribunal and advised that the applicant had been detained two weeks previously. The Tribunal then needed to postpone the hearing so that it could arrange for the applicant to be transported from Villawood to the registry to participate in the hearing. It wrote to the applicant to explain that it was not able to proceed with the hearing as arranged because it was not aware of his detention. He was invited to attend a hearing in person on 14 August 2018.

15. Prior to the hearing the applicant provided to the Tribunal a character and work reference from his employer Steve Grainger of Jag-Tech Pty Ltd. The applicant provided a written submission explaining that the applicant trained as an electrician and that he wanted to travel. He and his girlfriend first went to New Zealand where he worked for a couple of years and then they came to Australia. Everything was going well but over time the relationship with his partner worsened and she needed to return to Chile because of her parents’ illness. He started making bad decisions and drinking alcohol. He broke his left knee, could not work for five months and began to drink heavily. He could not play soccer and this led to depression. While he cannot blame anyone but himself for what happened in April 2018 and he understands he needs to be punished. he wants an opportunity to continue with his life in Australia. He has been working with a therapist to help with anger management issues. He believes he is a good fair man, respectful and hard-working.

16. The applicant also provided medical evidence from the International Health and Medical Services indicating that he has been consulting a psychologist at Villawood to help him deal with mental health issues. The psychologist reports that the applicant started experiencing panic attacks around the time of his knee surgery in 2017. He reported that he was consuming 2 to 3 bottles of wine per day which was impacting heavily on his finances and he also started smoking cigarettes. The psychologist recorded that he was having difficulty sleeping and lacked an appetite. He was not exercising as he had in the past. He reported that he had not informed his parents of his current situation as he did not want to upset his mother. He had regular phone contact with his previous partner. He had not consumed alcohol for four months as at the time of the report and denied any substance abuse. He reported that he had seen a psychologist in Chile on one occasion, years before coming to Australia, and was prescribed antianxiety medication. He indicated he would like to start seeing a psychiatrist for medication. He and the psychologist discussed alternative options such as therapy and relaxation strategies. The psychologist reported that there was a low risk of self harm and a low risk of harm to others. She was of the view that the applicant had family support, was willing to engage in treatment and future oriented.

    Hearing on 14 August 2018

17. At the hearing the Tribunal explained the relevant law. It warned the applicant against self-incrimination. It also explained that it is not the role of the Tribunal to determine whether the applicant is guilty of the charges. The following is a summary of the oral evidence provided at the hearing.

18. The applicant was detained at the Villawood Immigration Detention Centre on 17 July 2018 where he currently remains. Departmental officers picked him up at the police station when he was reporting in compliance with his bail conditions. He had been living with flatmates in Maroubra. They held his room for three weeks but at the time of the hearing looking for another flatmate. His car, tools, bed and clothes are still there. His ex-partner has gone to New Zealand. Her Subclass 457 visa was cancelled. Their relationship was breaking down over the year prior to the incident. She went back to Chile in February 2017 but returned to Australia shortly after he injured his knee in November 2017. He had knee surgery in December 2017 and she returned to support him. They were living together. He returned to work about five months after the surgery. He had been on workers compensation. He has never had any other criminal charge.

19. The Tribunal asked the applicant about the progress of the criminal proceedings. He indicated that he went to court in July 2018 but his lawyer did not explain what was happening. He understands that the charges are to be downgraded. His lawyer is in negotiation with the police. He understands that his final hearing may be on 4 September 2018. He does not know about the new charges but he is going to plead guilty if they are downgraded. When he was interviewed at the police station he made admissions which were influenced by having taken sleeping pills. He was confused during the interview. He could not really remember what had happened because he was very drunk. His lawyer said he admitted to it and he believes the police pushed him into saying things he said, such as he did it for revenge. However he does not deny saying it.

20. The Tribunal asked the applicant if he wanted to describe what happened on the night in April 2018. He indicated that he had been living with his partner and working. She had gone back to Chile and when over there met his now ex-friend Miguel (who was present on the night in April 2018) and also Patricio, the alleged victim. After she returned to Australia their relationship was problematic. Her mother has mental health issues and her father is an alcoholic. While she was in Chile she indicated she might not come back to Australia. He indicated he understood and offered to help her. Ultimately she came back in December 2017 the day before his knee surgery. They resumed living together. He indicated that after his friend Miguel returned to Australia he started saying negative things about his girlfriend. However when she returned to Australia Miguel was friendly with her. The applicant started to worry that something had happened between his girlfriend and Patricio. He was worried that she had been cheating on him. In February 2018 she temporarily moved out. A friend of his, Matthias, told him “I’ve done something wrong”. The applicant became worried that something had happened between his girlfriend and Matthias. However his friend Miguel discouraged this thinking and suggested they all go out together.

21. Prior to the incident in April 2018 the applicant had badly injured his knee, was having problems with his girlfriend and drinking more than usual. He now knows he was suffering from depression.

22. When Miguel contacted him and suggested they all go out together he brought along Patricio, the victim. He had heard of him but it was the first time they had met in person. Previously he had asked his girlfriend about her relationship with Patricio but she said there was nothing between them. Patricio and Miguel got to his place and they drank a bottle of whiskey. They were drunk when they went to Bondi. They picked up Matthias who was the applicant’s friend in Australia. (Later he found out that his ex-girlfriend had been having an affair with Matthias over the previous Christmas and New Year’s Eve.)  Once Miguel, Patricio and the applicant picked up Matthias they went to Newtown. Matthias was trying to talk to the applicant but it was not a good time. Patricio already knew about the affair and he started mocking the applicant about having horns (a reference in his culture to being cheated on). The applicant was very drunk and was kicked out by the security guard. He waited outside for his friends. Finally they came out and Miguel and Matthias walked away to get some food. He stayed behind with Patricio who continued to mock him. The applicant swore at Patricio and they started to fight. He fell to the ground and Patricio started kicking him. He believes Patricio broke his nose however he does not have an x-ray. He showed the Tribunal a scar on his nose which he claims was from being kicked. A random person who happened to be passing by split them up. At that stage Matthias and Miguel were far away. He walked away and saw the piece of glass. He admits he then ran towards the victim and cut him.  After the incident he walked away and went home. He found that his car had been smashed. He believes Patricio and Miguel smashed his car. The applicant realises he made the wrong decision. The police came to his place on the Monday night and he was very hung over. He had taken a sleeping tablet and had been asleep when they arrived. They took him to the station and charged him. He went to the local Court and was granted bail. He cannot contact Miguel and Patricio. He has spoken to his ex-girlfriend and she then told him about her affair with Matthias.

1. The applicant acknowledges that the conduct was very bad but he is essentially a good person. He continued to work in skilled employment until his visa was cancelled. His boss said he can return to work so long as he has a visa.

2. The Tribunal discussed with the applicant the circumstances it would take into account in considering whether to exercise its discretion to cancel the visa if it found there was a ground for cancellation. The applicant explained that his purpose in remaining in Australia is to work on skilled employment as an electrician. He and his ex-partner wanted to apply for permanent residence but now that is impossible. After the relationship breakdown he applied for a Canadian visa but he was not chosen from the pool. He would like to remain in Australia until his visa expires in October 2020 and work in skilled employment.

3. The applicant asserts that there has been no other breach of a visa condition. There was a small separation from his ex-partner but that was temporary and they always intended to reconcile. After her visa was cancelled she went to New Zealand, he thinks in about June.

4. The applicant believes he will suffer hardship if the visa is cancelled. He is very unhappy about being detained. He has been placed in the Blaxland unit which is the high security unit in Villawood. He is with criminals and he is fearful. He has some savings, about $5000. He does not want to return to Chile because he does not believe it is a good country but he remains in close contact with his family. His mother does not know what happen and he is very distressed about the shame she will feel if she finds out about his circumstances. He could work in Chile as an electrician but he would probably have to live in Santiago which he does not want to do. Psychologically and emotionally this is the worst thing that has ever happened for him. While he knows what he has done is very bad, he is not a bad person. It will be hard for him to go forward if his visa is cancelled. He did not realise he has been suffering from depression until detained. He sees the detention psychologist who has formed the view he was highly depressed. He has been practising anger control and anxiety management exercises.

5. The Tribunal noted there was evidence provided by the applicant to the Tribunal before the hearing suggesting that he had been suffering from depression in Chile. The applicant said in Chile was trying to get into a higher grade of soccer however he was unsuccessful. His mother said he needed to go to a psychologist to deal with his sadness. He went only once and was prescribed an antianxiety medication which he took for a while.

6. The applicant said that since the fight in April 2018 he has not consumed alcohol. He believes the circumstances for the ground for cancellation arising was being mocked by Patricio and he was very drunk. He has done nothing like this before. As far as he is aware there is no other adverse information known to the Department. There was a consequential cancellation but he is no longer with his partner.

7. The Tribunal asked if there was any reason why the applicant could not return to Chile. He indicated that he considers going back to Chile as his last option. He understands the mandatory legal consequence of the cancellation as he is now in detention. He understands that he will be barred from applying for certain visas in the future. He acknowledged that he could go back to Chile, that he no longer has a partner in Australia to support and there are no children or dependence in Australia.

8. The Tribunal asked if there had been any other breaches of the law. He indicated that he was once late for reporting to the police. His bail conditions require that he report between 6AM to 8AM and he got there at 10AM.

9. The Tribunal noted that the applicant has only ever held a temporary visa in Australia and there is been no guarantee that he could reside in Australia permanently. He indicated that he had wanted to do that but it now may not be possible. He indicated that if he was released from detention he would report to the Department as required, including every day.

10. The Tribunal asked the applicant if he had any other evidence to give. He explained that he did not have the glass in his pocket. It was not his intention to use it until immediately before he did. If he had not seen it on the ground he would not have picked it up. He asserts he is not a violent person.

11. The Tribunal explained that it may be appropriate to wait until 4 September 2018 to ascertain the outcome of the court proceedings. He indicated he desperately wants to get out of Villawood and he is scared in Blaxland. The Tribunal asked the applicant if he would provide further information about the downgrading of the charges and the outcome of the court proceedings on 4 September 2018.

12. After the hearing the applicant contacted the Tribunal by telephone and told the case officer that his criminal charges are being downgraded and he believed the court hearing on 4 September 2018 would be his last. He did not have any further information to submit to the Tribunal. The Tribunal wrote to the applicant on 23 August 2018 asking whether his criminal matter was finalised at the hearing on 4 September 2018. On 24 August 2018 the Tribunal received a telephone call from a lawyer at AAJ Lawyers who advised that the criminal charge against the applicant had been downgraded. The lawyer was asked to provide information in writing.

13. On 26 August 2018 the applicant’s lawyer in the criminal matter wrote to the Tribunal and advised that a plea offer had been made for the applicant to enter a plea of guilty to reckless wounding upon the withdrawal of the GBH charge. The solicitor was yet to receive confirmation but was confident that it would be accepted given the medical evidence supported the reckless wounding charge. He confirmed however that the matter would not be finalised on 4 September 2018. He advised that the incident was a result of a dispute between two males known to each other and that he was of the view the applicant was not a threat to the community.

14. The applicant provided a copy of his Chilean criminal record certificate advising that he had no police record in Chile.

15. The Tribunal wrote to the applicant, sent to the authorised recipient, the representative, on 20 September 2018 inviting his comments or response to information set out in the fact sheet, and information provided by his solicitor on 26 August 2018 that a plea offer had been made to the prosecution for the applicant to enter a plea of guilty to reckless wounding upon the withdrawal of the GBH charge. The applicant did not respond however the representative wrote to the Tribunal informing it that he no longer acted for the applicant. The Tribunal was concerned that the applicant may not have received the letter. It decided it was appropriate to have another hearing to obtain current information regarding the status of the applicant’s employment, accommodation if released from detention, and his criminal matter.

16. Prior to the second hearing the applicant provided to the Tribunal a character reference dated 8 October 2018 from Cristian Soto Hernandez, Cultural and Linguistic Diversity Coordinator, TAFE NSW. He stated that he has known the applicant since 2004 when he taught the applicant English in Chile where he was the Head Teacher of the English Department. He found the applicant to be responsible and conscientious. He has maintained contact with the applicant since meeting him a few years ago at a Chilean community event in Sydney. He has been made aware of the applicant’s recent reckless wounding assault charge. He is very surprised by this because since he has known the applicant he has never seen behaviour that would lead him to think the applicant would commit such a serious mistake. He and the applicant understand how serious the charge is. He has witnessed the applicant’s evident remorse. He still holds the applicant in high regard. He would not write this reference if he did not believe the applicant is genuinely remorseful and regretful. He is happy to provide further information.

17. The applicant provided another letter from his former employer, Stephen Grainger, dated 5 October 2018 in which he states he has found the applicant to be honest, trustworthy and of good character.  He described the applicant’s role in his business stating that he worked well in the team and with all of his colleagues. He was the applicant’s project manager and the applicant informed him of the charge. He considers the behaviour to be out of character. He indicated that if the applicant is released from detention he will be encouraged to reapply for his position and he will be welcomed back into the team to return to his full time work duties.

    Hearing on 10 October 2018

18. At the hearing the applicant provided to the Tribunal clinical records prepared by Emma Mcmillan, psychologist, International Health and Medical Services recording that the applicant has participated in cognitive behaviour therapy and other therapeutic treatment programs since he has been detained at Villawood. The psychologist is of the view that the applicant is of low risk of harm to himself and others. In her most recent clinical notes she recorded that the applicant is future oriented, well engaged in treatment, motivated to change, open in his communication and now has family support. She has also recorded that he is now utilising healthy coping strategies.

19. The Tribunal asked the applicant if he had received its letter inviting comments on the information provided by his solicitor in the criminal matter. He indicated he had not received this letter.

20. The Tribunal discussed with the applicant any possible arrangements he has for accommodation if he is released from detention. He indicated that he used to live with flatmates in Maroubra. While he has not been renting his room his furniture and belongings are still there. His flatmate has sublet his room. However he spoke to him recently and the flatmate confirmed that he can move back to his accommodation if he is released from detention. The applicant provided to the Tribunal contact details for the flatmate.

21. The Tribunal discussed the applicant’s employment status. He confirmed that he has remained in contact with Mr Grainger. If he is released from detention he intends to immediately contact Mr Grainger to reapply for his position and commence employment as an electrician.

22. The applicant has confirmed that the charge has been downgraded to reckless wounding. After the hearing he provided to the Tribunal a copy of the Court Attendance Notice dated 2 October 2018 confirming this is the case. The applicant told the Tribunal he has pleaded guilty to the reckless wounding charge. He understands there will be a sentencing hearing in November 2018. His lawyer has indicated that he may be given a good behaviour bond and community service.

23. The Tribunal referred to the clinical records indicating the applicant has been undertaking psychological treatment. He confirmed that he has really benefited from the treatment and he intends to pursue psychological treatment if he is released from detention. He has been maintaining contact with family and friends since he has been in detention. He has told his parents about the events in April 2018, his detention and his charge. He became distressed when discussing the impact of his circumstances on his mother. The applicant has confirmed he has not consumed alcohol since the events in April 2018. ‘No alcohol’ was a bail condition which he has complied with. He has no intention of drinking alcohol if he is released from detention because he knows it is not good for him. He used to drink normally until he injured his knee last year and his alcohol consumption increased.

24. The applicant indicated that initially he had very few visitors to Villawood because he felt very ashamed and embarrassed about what he had done and he had not told people. Since participating in psychological treatment he has realised the importance of support and so he has told his family and friends. Since then he has had visitors and daily contact with his mother, father and sister. The applicant confirmed his ex-partner is in New Zealand. The applicant was emphatic that he will not offend again. He expressed regret and remorse about what he has done.

    Assessment of the evidence

25. 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.

    Does the ground for cancellation exist?

26. 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].

27. 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.

28. In considering whether the presence of the applicant in Australia is or may be, or would or might be, a risk the Tribunal has taken into account the evidence regarding his past conduct. Despite being warned against self-incrimination the applicant, who is now aged 35, was very frank with the Tribunal about his past conduct. He admitted to the Tribunal that he had fought with the victim Patricio and that he had picked up a piece of glass and cut the victim. At the first hearing he told the Tribunal, and this was confirmed by his solicitor in the criminal matter, that he intended to plead guilty to a downgraded charge such as reckless wounding. At the second hearing he confirmed that the charge was downgraded and he had pleaded guilty. The applicant has repeatedly expressed regret and remorse for what he has done, to the Tribunal, and others as evidenced by the reference from Cristian Soto Hernandez.

29. While not suggesting in any way that this vindicates the applicant, the Tribunal accepts that the victim sustained the injury perpetrated by the applicant in circumstances where the applicant was heavily intoxicated and had become aware that his partner may have had an affair. After the events in April 2018 his ex-partner acknowledged that this was the case. The Tribunal accepts that leading up to the night in April 2018 the applicant’s relationship with his then partner had been under strain and she had spent some time in Chile separated from the applicant. While she was away the applicant suffered a knee injury which required surgery and several months off work. The applicant states that during this time his consumption of alcohol increased. The Tribunal notes that while the applicant’s then partner returned to Australia to assist the applicant during his rehabilitation the relationship remained strained and the applicant was fearful that she may have been involved with someone else.

30. The applicant has provided evidence to the Tribunal that he had no criminal record in Chile. On the basis of his oral and written material provided, the Tribunal is also satisfied that this has been the only offence committed in Australia. He was frank with the Tribunal that on one occasion he was late in reporting to the police as part of his bail conditions, having arrived at 10AM when he was supposed to report between 6AM and 8AM.

31. The applicant has been emphatic that since the events in April 2018 he has not consumed alcohol. He has provided psychological evidence to the Tribunal confirming he has regularly consulted the psychologist at the detention centre. She has undertaken a risk assessment and formed the view that there is a low risk of self harm and harm to others. She reported that the applicant acknowledged that after injuring his knee and being concerned about the status of his relationship with his partner, he was consuming 2 to 3 bottles of wine per day and had started smoking cigarettes. She also recorded that he had reported suffering panic attacks at the time. She has reported that the applicant sought assistance to learn anger management strategies and that he has now reported his current situation to his parents because he did not want to upset his mother. He also told the Tribunal that he has now disclosed to his family and friends that he has committed an offence and has been detained.  The Tribunal gives weight to the psychological evidence which indicates the applicant is a low risk of harm to others and that he has engaged in, and benefited from, psychological treatment

32. The Tribunal has also taken into account that the applicant’s employer and Subclass 457 visa sponsor, Steve Granger, Jag-Tech, has written to the Tribunal and advised that he found the applicant to be honest, trustworthy and of good character. He states that he performed his duties on a daily basis and worked well with all of his colleagues and as part of a team. He considers the applicant’s conduct of April 2018 to be out of character.

33. The applicant has also provided a character reference from Cristian Soto Hernandez who, though aware of the offence, considers the applicant to be responsible and conscientious. He is very surprised by the applicant’s conduct as he has never seen behaviour that would lead him to think the applicant would commit such a serious mistake. He and the applicant understand how serious the charge is. He has witnessed the applicant’s evident remorse and still holds the applicant in high regard. The Tribunal accepts that this referee would not have written the reference if he did not believe the applicant is genuinely remorseful and regretful.

34. The Tribunal acknowledges that the applicant has been charged with a serious offence and the applicant concedes that his conduct was wrong. However, the Tribunal also places weight on the fact that the applicant is very remorseful about his conduct, has pleaded guilty to the charges and has taken active steps, psychological treatment and abstaining from alcohol, to ensure that such conduct does not occur again.

35. The Tribunal accepts that the applicant has no other criminal history. It accepts that the applicant has accommodation and employment if he is released from detention. It also notes the applicant has engaged in psychological treatment and accepts the psychologist’s assessment that he is of low risk to himself and others. The Tribunal places significant weight on the fact that the applicant himself recognises the inappropriate nature of his conduct, his guilty plea and he engaged in treatment on a voluntary basis. His evidence to the Tribunal is that he will continue with treatment in the future. The Tribunal is satisfied that the applicant has taken meaningful and effective steps to deal with anger management so that the behaviour that led to the charge does not occur again.

1. Having regard to all the evidence before it, the Tribunal is satisfied that the applicant’s conduct leading to the charge was out of character, in part caused by his reaction to taunting associated with his ex-partner and alcohol use on that particular occasion. The Tribunal is satisfied that the applicant has had psychological assistance and that he will continue to abstain from alcohol. The Tribunal has formed the view that the applicant’s involvement in the criminal process, the charge and the subsequent cancellation of his visa and detention, have had a significant impact on him and will ensure that the such conduct does not occur again.

2. Overall the Tribunal has formed the view that the applicant’s presence in Australia is not, and may not be a risk to the safety of the victim, the applicant’s ex-partner, any witness to the conduct in April 2018 or any other person or the Australian community in general. The Tribunal is not satisfied that the presence of the applicant 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.

3. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(e) exists. It follows that the power to cancel the applicant’s visa does not arise.

   DECISION

4. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

   Denise Connolly
   Member