Ausage (Migration)

[2018] AATA 1816

Ausage (Migration) [2018] AATA 1816 (1 March 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Iosefa Ausage

CASE NUMBER:  1732681

DIBP REFERENCE(S):  ADF2017/138096

MEMBER:Ann Brandon-Baker

DATE:1 March 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 01 March 2018 at 10:38am

CATCHWORDS
Migration – Cancellation – Special Category visa – Subclass 444 visa – Risk to Australian community or individual

LEGISLATION
Migration Act 1958, s 116

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 December 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 444 (Special Category) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e) on the basis that he considered the applicant’s presence in Australia is or may be a risk to the safety of an individual or individuals. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 28 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s fiancé.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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?

   s.116(1)(e) - risk to Australian community or individual

6. A visa may be cancelled under s.116(1)(e) if the Minister or the Tribunal 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.

7. The applicant is a citizen of New Zealand, born on 6 April 1997 (20 years old). He first arrived in Australia on a subclass TY444 visa on 28 January 2005.

8. The Tribunal sent the applicant a copy of his charge sheet, person history and criminal history that it received by summons to the Queensland Police Service. The Tribunal informed the applicant that depending upon his comments, the charges against him would form the reason, or part of the reason for affirming the decision under review. That history includes the following charges in December 2012 when he was 15 years old;

   [Details deleted].

9. In  2016 the applicant was charged with the following offences:

   [Details deleted].

10. In his response to the Tribunal the applicant claimed the following:

    a.He has matured whilst in remand and understands what he has done wrong

    b.He had a difficult childhood where he had to grow up quickly and has been diagnosed with PTSD

    c.He plans to keep seeing his psychologist if he is allowed to remain in Australia

    d.He is reformed, cut ties with people who led him astray, given up drugs and intends to live a good life with his family in Australia.

    e.He is innocent of most of the latest charges 

    f.His family and he will suffer significant emotional hardship if he has to leave and go back to New Zealand.

11. The Tribunal put these matters to the applicant at the hearing and sought his comments after first informing him that he was not obliged to answer the Tribunal’s questions in such a way that he may incriminate himself. The applicant confirmed he understood. The applicant did not deny the charges, but claimed his innocence in relation to the latter charges. He said that he agreed that grounds to cancel the visa existed.

12. 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 power to cancel the visa should be exercised.

    Consideration of discretion

13. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

14. The Tribunal has considered 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 and notes that he arrived in Australia as an eight year old and has not departed since. He considers Australia home and his ten siblings, parents and other extended family members reside here. He claims that the family came for a better life and he believes that there are more opportunities in Australia for him to better himself than there are in New Zealand.

15. The Tribunal put to the applicant that despite his claims that opportunities were better in Australia he nevertheless did not appear to avail himself of those opportunities. The Tribunal asked the applicant what had changed in his behaviour to ensure that criminal activities would not continue and how he intended to seize the opportunities of which he spoke. The applicant claimed that he had become involved with some bad people and made some bad choices in the past. He said that the time he has spent in prison and the threat of his visa cancellation has made him rethink his future. He said that he recognised that he had done wrong in the past and was motivated to change. He claims to have undertaken twelve units in three courses on drug and alcohol dependency and attended counselling to manage his anger issues. He claims that he is a different person now and would not make any more bad choices. He claims that he has given up alcohol and drugs and will stay clean and continue to attend counselling.

16. The Tribunal places some positive weight on the applicant’s attempts at reform, particularly in relation to his drug and alcohol abuse and anger management.

17. The applicant claims that his siblings and parents as well as he would suffer psychological and emotional hardship if he had to depart Australia. He said he is one of the eldest of the eleven siblings and that he wants to be a role model for them. He told the Tribunal that one of his sister’s was at university and that all his siblings work hard and are good people. The applicant told the Tribunal that he and his father have become very close in the years that his father himself has reformed to become a decent and loving father who looks after his family. He said that he believes that he can have a similar transformation and wants the chance to prove to everyone that he can be a good and productive person who makes a contribution to society as well as his family.

18. The Tribunal accepts that the applicant is part of a larger family and that they have familial bonds. The Tribunal also accepts that the applicant and his family members may suffer some level of emotional hardship if the applicant was required to depart Australia. However the applicant has left home and told the Tribunal that if he was to remain in Australia that his plan was to move into his fiancé’s place so that they could build a life together.

19. The Tribunal accepts that this does not mean that he will not have a continued relationship with his siblings and may well wish to be a mentor to them; however he will not be living with them. The Tribunal has noted the applicant’s sister’s letter to the delegate along with a letter from his mother, other family members and friends which affirm the applicant’s intention and commitment to reform and places some positive weight on these matters.

20. The applicant told the Tribunal that the latest charges against him were all false.  [Details about the latest charges deleted].

21. The Tribunal asked the applicant why he did not agree to be interviewed by police when he was arrested. The Tribunal put to the applicant that if he was innocent then surely that was the time to tell the police. He said that he was told not to say anything by his legal counsel.

22. The Tribunal put to the applicant that it was finding it difficult to accept his account; particularly that he was not involved in nor had any knowledge of what was going to happen that night. The applicant accepted that he had no proof but was going to vigorously defend himself in court. He said that at the court appearance this morning, the matter was adjourned for a further four weeks and he did not know when it would be heard or finalised.

23. The Tribunal has placed considerable weight on the applicant’s family circumstances and the fact that he has no contact with family members in New Zealand. This is not to say that he no longer has family residing in New Zealand but he claims that he has no contact with them. Nevertheless, the Tribunal considers that if he were returned to New Zealand he could choose to re-establish contact with members of his extended family. In any case, New Zealand is a first world economy with an extensive welfare system that can assist the applicant whilst he finds his feet. The applicant’s fiancé has also said that she would move to New Zealand with him should he be required to depart.

24. The Tribunal has also placed some positive weight on the applicant’s recognition of his past poor choices and that he has undertaken some drug and alcohol rehabilitation and will continue to attend his psychological sessions. He claims that he has extensive support from his family and his fiancé. However, the applicant has always had this support and was engaged to his fiancé prior to his arrest for the latter charges. The Tribunal put this to him and asked what was different. The applicant said that he took responsibility for the choices that he made.

25. The crimes for which the applicant has been charged are [serious]. The Tribunal is not satisfied that the applicant has provided sufficient evidence to persuade the Tribunal that he is committed to a path of reform such that he will not again put members of the community at risk.

26. The Tribunal has carefully considered and weighed all of the evidence and in the context of the entirety of the applicant’s circumstances concludes that the visa should be cancelled.

    DECISION

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

    A B Baker
    Senior Member