Bellamy (Migration)

[2018] AATA 5199

Bellamy (Migration) [2018] AATA 5199 (28 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aaron Peter Bellamy

CASE NUMBER:  1810291

HOME AFFAIRS REFERENCE(S):           BCC2018/672545

MEMBER:James Lambie

DATE:28 September 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 28 September 2018 at 10:48am

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) – Subclass 444 visa – Whether the applicant is or may be, or would or might be, a risk to the safety of an Australian community or a segment of the community – Charged with criminal offences – Grounds for cancellation exist – strong family and community ties in New Zealand – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 189, 198, 140, 359A

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 4 April 2018 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 delegate cancelled the visa under s.116(1)(e)(i) on the basis that she was 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. 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 25 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Linda Bellamy.

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)(1). 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 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].

7. 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.

8. The applicant is a 29-year-old citizen of New Zealand, having resided in Australia since 31 May 2016. On 8 February 2018, the Department of Home Affairs was informed by Queensland Police that he had been charged with a number of offences under Queensland law: 6 offences of grooming a child under 16 years with intent to expose to indecent matter and 4 offences under the Drugs Misuse Act 1986 for possession of cannabis and property and utensils used in commission with drug offences.

9. The Queensland Police Service charge sheets were obtained by the Tribunal under summons and provided to the applicant pursuant to s.359A. The applicant was already familiar with this material.

10. The online exchanges forming the basis of the grooming charges are detailed in the charge sheets.  The offences are objectively serious and carry a maximum penalty of 5 years’ imprisonment.  The applicant tendered correspondence with his lawyer indicating that a plea of guilty in respect of a reduced number of representative and lesser charges was being considered by the prosecution and likely to be accepted.

11. The applicant did not deny the central factual allegations underlying the charges.  He believes that his use of cannabis and methamphetamines at the time contributed to his behaviour, but acknowledged (fairly) that expert psychiatric or psychological opinion in this respect had yet been obtained.  He does believe that the grooming offences are out of character, in which respect his evidence was supported by his mother.  He has abided by all of his bail conditions.

12. Mr Bellamy submitted that the Tribunal should, in considering any possible risk to the community, take into account that the online exchanges were with an undercover police officer and not a real underage person.  The applicant accepted that at the relevant times he believed he was corresponding with an underage person.  I therefore do not consider that this circumstance materially mitigates my assessment of the risk posed to the community by the presence of the applicant in Australia.

13. While I have taken the applicant’s submissions into account, the undisputed facts and matters alleged in relation to the grooming charges indicate to me that the applicant had embarked on a course of conduct that, absent police intervention, could very well have resulted in the exposure of indecent material to a minor, or worse.

14. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(i) 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

15. 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’.

16. The applicant has only been in Australia since 31 May 2016.  One of the reasons for his relocation was to attempt to distance himself from a methamphetamine habit he had developed in New Zealand.  He says he has not used drugs since his arrest.  I do not consider the availability of drugs so materially different in Australia and New Zealand as to give rise to a compelling need for the applicant to remain in Australia, especially given that his family support network is largely in New Zealand.

17. Mr Bellamy has no conditions attached to his visa.  Accordingly, I can give no weight to the extent to which he has complied with them.

18. Given the relative brevity of his stay in Australia and the presence in New Zealand of his partner and family, I do not consider that any particular financial, psychological, emotional or other hardship would arise from the cancellation of his visa. 

19. There is nothing to suggest that the grounds for cancellation arose from circumstances beyond Mr Bellamy’s control and I give no weight to this factor.

20. Mr Bellamy failed to respond to the Department’s Notice of Intention to Consider Cancellation of his visa.  The delegate formed an unfavourable view of this as showing an unwillingness to engage.  I am inclined to accept Mr Bellamy’s explanation that he was in the middle of moving house at a time when he was emotionally and financially stressed and failed to understand its importance.  In these circumstances, I give this factor no particular weight.

21. There would be no consequential cancellations arising under s. 140, and no weight is given to this factor. The consequences for the applicant would result in his becoming an unlawful non-citizen and therefore liable for detention under s. 189 and removal under s. 198 if he does not voluntarily leave. He would be subject to s. 48 which would limit his options to apply for further visas in Australia and, in the current circumstances, would face a three year bar under PIC 4013 on making certain visa applications. Given that these legal consequences are intended to apply in circumstances such as these, I give this factor no weight.

22. There are no circumstances in this matter that raise the prospect of any breach of Australia’s international obligations.  The applicant’s strongest family and community ties are in New Zealand rather than Australia.  Accordingly, no weight is given to either of these factors.

23. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

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

    James Lambie
    Senior Member