Broederlow (Migration)

[2019] AATA 3601

Broederlow (Migration) [2019] AATA 3601 (29 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ethan Shane Wiremu Broederlow

CASE NUMBER:  1910992

HOME AFFAIRS REFERENCE(S):           BCC2019/774299

MEMBER:Ann Duffield

DATE:29 July 2019

PLACE OF DECISION:  Brisbane

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 29 July 2019 at 4:14pm

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 –criminal convictions – applicant does not have a “substantial criminal record” – compliance with his significant bail conditions genuine remorse for his past behaviour –decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 501,

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 30 April 2019 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 the applicant posed a risk to the health, safety or good order of the Australian community or a segment of the Australian community as a result of his criminal record, including convictions in relation to drug and firearm offences between 2007 and 2018. 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 23 July 2019 to give evidence and present arguments. The Tribunal also took evidence from the applicant’s two brothers and his parents.

4. The applicant was represented in relation to the review by his registered migration agent who also attended the hearing.

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

   BACKGROUND

6. The applicant is a citizen of New Zealand born on 9 February 1990 (29 years old). The applicant and his family settled in the Gold Coast when the applicant was just seven years old in December 1997.

7. He has an ex- partner and a son born on 15 April 2017 (2 years and 4 months old) who are both Australian citizens.

8. On 15 March 2019 the Department of Home Affairs (the Department) issued the applicant with a Notice of Intention to Consider Cancelation of his visa. The applicant has a history of criminal activity resulting in convictions including drug and firearms offences along with offences relating to driving vehicles unlicensed or unregistered.

9. The applicant was invited to reply to the Department’s request, for a response to his criminal history, and he provided an extensive submission through his representatives. The applicant has also provided numerous positive statements of support from family and friends, and a copy of a pre-sentence psychological report dated 4 March 2011.

10. The report states that the applicant has been using drugs and alcohol since the age of 14. He ceased alcohol consumption at the age of 21 and began using ice at around the age of 23. He has a long term addiction to this substance. His offending has largely been in relation to his abuse of illicit substances. He claims to have had learning disorders as a child but this has never been formally assessed. He has attended psychological counselling several times in relation to treatment for his addictions. The report notes that the applicant has not been using drugs since he was imprisoned and has had time to reflect on his offending and is experiencing remorse. The report indicates that the applicant has developed a strong motivation to change. The report recommends that the applicant attend drug rehabilitation programs and psychological treatment. The applicant has also been attending Bible studies.

11. Two psychological reports and separate statements by their authors indicate that the applicant is strongly motivated to change; that if he overcomes his addictions his prospect of rehabilitation is positive; he has a number of very strong motivating factors that will prevent him re-offending including the risk of going back to prison, gaining custody or access to his two year old son, his strong positive relationship with his family; and the removal of himself from bad influences including his ex-partner who facilitated his drug use. The reports note that the applicant and his family have developed a comprehensive plan for the future if the applicant’s visa is re-instated including outpatient and residential addiction programs, psychological counselling, living with his parents and elder brother and being closer to other family members gaining full time employment and applying for custody of his young son.

12. The applicant has been convicted of a number of serious offences since 2007 including, wilful damage, drunk or disorderly, possession of dangerous drugs, unlawful possession of weapons, receiving tainted property, as well as several further convictions for the unlawful possession of weapons and dangerous drugs. The applicant received a twelve (12) month sentence for the firearms offence and has been disqualified from holding a driver’s licence for a period of 5 years.

13. His more recent outstanding charges include driving without a licence, driving uninsured and unregistered vehicles, unlawful possession of weapons and explosives and possession of pipes for use. These remain unproved.

14. The applicant served a custodial sentence from around 21 December 2018 to 11 April 2019 (112 days) when he was released on bail in relation to an appeal against the twelve month sentence he received for the firearms offence. He will be eligible for parole on 21 December 2019. His other bail conditions include a curfew between 9pm and 5am; tri-weekly reporting to a police station; relinquishing his passport; and prohibited from imbuing alcohol or illicit drugs. He did not breach any of these conditions for the period of time between his incarceration and detention.

15. He was detained by the Australian Border Force and, as at the time of this decision, the applicant has been in detention for approximately 12 weeks in the Brisbane Immigration Transit Accommodation facility.

16. The Tribunal sent the applicant a copy of his entire police record and informed him, that depending upon his response, this information may form a reason or part of a reason for affirming the decision under review.

17. The Tribunal received a substantial number of documents both prior to and after the hearing from the applicant through his representative addressing the information provided, including the following:

    a.A timeline of the applicant’s personal history;

    b.A timeline of the applicant’s mental health support history;

    c.Approximately 30 statutory declarations and completed questionnaires about the good character of the applicant from friends, family and acquaintances including employers;

    d.His son’s birth certificate;

    e.Some photographs;

    f.A psychological report from Dr Paul Bowden;

    g.A detailed submission responding to the NOICC;

    h.Mental Health Plan from Dr Raffi ;

    i.A copy of the applicant’s Bail undertaking in relation to his current probation;

    j.A letter from Ms Melissa Thompson from Lives Lived Well outlining her and the organisations engagement with the applicant;

    k.A letter from Ms Kate Hudson from Lives Lived Well outlining the applicant’s engagement with the organisation;

    l.A letter from Sarah O’Sullivan, Community Services Counsellor outlining her engagement with the applicant;

    m.A copy of the applicant’s workbook indicating his completion of the “Do-It Program”;

    n.Psychological report from Dr Jacqueline Yoxall ;

    o.An offer of employment from Pro2 Roofing Qld Ltd; and

    p.Drug and alcohol tests showing negative results.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. 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)(ii). 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

19. 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].

20. 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.

21. The cancellation decision, which is the subject of the Tribunal’s review, was made under s.116(1)(e)(i) of the Act. The Minister may cancel a visa under s.116 of the Act if the Minister is satisfied that certain grounds specified in that provision are made out. Subsection 116(1)(e) provides that the Minister may cancel a visa if satisfied that:

    (e)the presence of its holder in Australia is or may be, or would or might be, a risk to:

    (i)the health, safety or good order of the Australian community or a segment of the Australian community; or

    (ii)the health or safety of an individual or individuals.

22. The Minister has powers under both ss.116(1)(e) and 501 to cancel visas where there has been criminal misconduct. The power under s.501 requires a more serious level of offending and a higher level of satisfaction about risk. For instance, a conviction with a sentence of a term of imprisonment of 12 months or more will lead to mandatory cancellation. Criminal charges or convictions where the visa holder is sentenced to a term of imprisonment for less than 12 months may still form the basis for a cancellation under s.501 but there are other considerations not relevant to this particular case.

23. In the present case, the applicant has been convicted of criminal misconduct and has been sentenced to a term of imprisonment 12 months which he is appealing. He served a total of 112 days in prison and is on parole. He has been charged with further criminal misconduct but has not been convicted. Those charges remain unproven. At the present time therefore the applicant does not have a “substantial criminal record” for the purposes of cancelling his visa under s.501 of the Migration Act.

24. It is the applicant’s submission that he does not present a risk to the health, safety or good order of the Australian community or a segment of the Australian community in any way.

25. The Tribunal found the applicant and his witnesses to be truthful and frank and their evidence credible and compelling and for the following reasons finds that the ground for cancellation does not exist..

26. The Tribunal considers the convictions against the applicant to be grave, particularly in relation to the firearms offences. The Tribunal put to the applicant that it had formed a view that an Ice addict, with a firearm, posed a substantial risk to the Australian community. The applicant told the Tribunal that he merely repaired the firearms for friends and never used one to threaten, intimidate or harm anyone or use it in relation to any other offence. The Tribunal notes that his charge reflects that. He said that he has always been attracted to fixing things and was pleased to have been able to help out. He told the Tribunal he was not paid for this endeavour.

27. He said that the ammunition he possessed was old World War Two bullets that he and a friend found and he did not know if they were live or not. The Tribunal accepts that the applicant is being truthful about these matters. Nevertheless, the applicant was sentenced to 12 months incarceration for this offence indicating that the Judge took the matter seriously. The Tribunal does not have access to the Judge’s sentencing remarks. The Tribunal also notes in this context that the applicant has appealed this sentence.

28. There are also a number of charges outstanding. These relate to 8 traffic and driving offences relating to driving without a license and driving unregistered vehicles. The drug offences relate to the possession of illicit drugs for personal use and utensils for use.

29. The Tribunal put to the applicant that the stresses of returning to the community may be too great for him to remain drug free. The Tribunal put to him that he did not have a driver’s licence and would therefore find it difficult to get work. The applicant told the Tribunal that he had a job lined up with a tiling business and provided evidence to support that claim and that his twin brother, who lived close by, would collect him and take him to work.

30. The Tribunal gives significantly positive weight to the applicant’s good behaviour and his compliance with his significant bail conditions for the several months he lived in the community prior to his detention by Border Force. The Tribunal suggested to the applicant that it may be easy for him to remain drug free in a controlled environment such as detention and prison. The applicant told the Tribunal that he was living in the community many months before he was detained and did not relapse on any occasion. The applicant also told the Tribunal that drugs were easy to obtain in jail and detention and he had never relapsed.

31. The applicant and his considerable number of witnesses have given compelling oral and written evidence that the applicant has taken control of his life. He has reconnected with his family who demonstrated to the Tribunal that they have and will continue to offer their unconditional love and support to him. He will, if released, live with his parents and older brother. He has a job lined up with his twin brother in a tiling firm. He has broken ties with his partner and friends who encouraged and supported his drug use. He intends to sue for custody of his child. He has attended and will continue to attend psychological counselling. All psychological reports presented to the Tribunal indicate that the applicant has a good chance of not reoffending and remaining drug free if he maintains these strategies and practices. He has undertaken and completed substance abuse courses and has a good understanding of the triggers and strategies to remain free of drugs. He has the example of his twin brother who was also an ice addict but has remained drug free for six years.

32. The Tribunal accepts that the applicant’s attempts to turn his life around, supported by friends and family, are authentic and that his has a strong self-awareness and genuine remorse for his past behaviour. He has demonstrated his commitment through his actions and the Tribunal has also formed the view that the applicant is strongly motivated to remain committed to this course of action, particularly his strong motivation to raise his son and avoid deportation.

33. The applicant and his family told the Tribunal that they are acutely aware that the applicant would be liable for mandatory visa cancellation and deportation if he breached his significant bail conditions, particularly by way of drug use or possession, because he would be returned to prison to serve out his full suspended sentence. Equally, the applicant is eligible for parole from 21 December 2019 for period of two years. If he breaches his parole he would also be returned to prison and again be liable to the mandatory cancellation of his visa under s.501(3) of the Migration Act and he would be deported.

34. The Tribunal believes this is strong motivation for the applicant to not re-offend and to continue rehabilitation. The Tribunal does not accept that the applicant poses a risk to the good order of the community or to the safety of an individual or individuals. It is incumbent upon the Tribunal to identify the safety of which individual, individuals or segments of the community that would be put at risk by the visa holder’s presence. For the following reasons, the Tribunal is not satisfied that such a case can be made out.

35. The applicant has not harmed any person or threatened harm to any person. His criminal activities have been in relation to drug possession for his own personal use, driving unregistered vehicles and being unlicensed and the possession of firearms.

36. Whilst the Tribunal views these activities as serious and could potentially affect any member of the community, if for example, the applicant was a dangerous driver, was charged with speeding offences or drug manufacture or trafficking, it must be noted that the applicant has not been charged with any of these crimes. He has not been charged with or accused of dangerous or drunk driving or been accused or charged with reckless driving endangering persons or property. He has never used a firearm and as far as the Tribunal can make out from the evidence before it, the weapons were not loaded and were not used in the commission or any crime or to threaten or harass anyone.

37. There are strong motivations, discussed in detail above, for the applicant to remain drug free and not re-offend.

38. If the applicant’s substantive visa is reinstated by the Tribunal and the Department develops a strong view that the applicant should not hold a substantive visa then it is within their purview to consider cancelling the visa under prescribed grounds as set out in s.116(g) of the Migration Act, either immediately, or under s.501 of the Act if he breaches his bail conditions.

39. All these matters are finely balanced in the Tribunal’s mind. Several factors weigh in favour of finding that there are grounds to cancel the applicant’s visa, including the length of time that the applicant has been offending. The applicant has not sought to downplay his offending but has taken responsibility for them and has taken control of his life. His family provided compelling evidence of the support he would receive and the gratitude they have that he has “come to his senses” after his imprisonment and detention. The have together as a family set out a detailed plan for the applicant’s future.

40. The applicant’s evidence and genuine remorse and insight into his past behaviour and his future opportunities was also compelling.

41. Having carefully reflected upon all the factors and the evidence before it, the Tribunal is not satisfied that the case can be made out that the applicant 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.

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

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

   DECISION

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

   Ann Duffield
   Senior Member