Brown (Migration) - [2023] AATA 707

Brown (Migration) [2023] AATA 707 (2 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Tyson Buck James Brown
CASE NUMBER:  2214691
HOME AFFAIRS REFERENCE(S):          BCC2019/5338565
MEMBER:Denis Dragovic
DATE:2 March 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 02 March 2023 at 11:13am
CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) – Subclass 444 visa – applicant has a ‘substantial criminal history’ – applicant’s presence in Australia is or may be a risk to the safety of the Australian community –criminal convictions – limited literacy and numeracy – Behaviour concern – applicant has little regard for the law – a limited prospect of rehabilitation – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 116, 359AA, 494
Migration Regulations 1994, r 2.55
CASES
EUF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 436
EVE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 729
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 7 January 2021 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 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(e) on the basis that the applicant has a ‘substantial criminal history’ having been convicted of various offences including assault; contravening court orders; family violence; make threat to kill; theft/robbery; and causing damage. In addition, at the time of the decision there were other pending charges. The delegate found that the convictions show a pattern of escalation with short time frames between offending. The delegate noted that this offending occurred despite numerous dealings with Victoria Police, family violence intervention orders, community correction orders and bail conditions. Based upon this record the delegate found that the applicant has a ‘likelihood’ of reoffending and as such poses a risk to the safety 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.
The applicant appeared before the Tribunal on 24 February 2023 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.
JURISDICTION
The applicant was notified by the Department of the decision to cancel his visa on the 7 January 2021. There is a limit of 7 working days to appeal from the day on which an applicant is taken to have been notified of the primary decision (r 4.10).
The applicant’s application for review was received on the 5 October 2022.
The applicant was notified by an officer of the Tribunal of what appeared to be an out of time application for review by way of correspondence through the Melbourne Immigration Transit Authority where he was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brown (Migration)

Details

AGLC: Brown (Migration) [2023] AATA 707
Case: [2023] AATA 707
Decision Date: 2 March 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of an applicant whose Subclass 444 (Special Category) visa was subject to cancellation. The Minister had formed the belief that the applicant’s presence in Australia posed a risk to the safety of the Australian community due to his substantial criminal history and limited prospects of rehabilitation. The applicant sought review of this decision.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised. This involved assessing whether the applicant’s presence in Australia was, or might be, a risk to the health, safety, or good order of the Australian community. The Tribunal also had to consider various factors in exercising its discretion, including the applicant's ties to Australia, the hardship his cancellation might cause, the circumstances of his offending, and any international obligations.

The Tribunal found that the applicant’s extensive and escalating criminal history, coupled with his limited efforts towards rehabilitation and apparent disregard for the law, established the ground for cancellation under section 116(1)(e). While acknowledging factors such as the applicant's family relationships in Australia and the potential hardship of removal, particularly due to his limited literacy and numeracy, the Tribunal weighed these against the significant risk he posed to the community. The Tribunal noted that the applicant’s offending had continued for twenty years, and he had not demonstrated a concrete path to change his behaviour. The Tribunal also considered the mandatory legal consequences of cancellation, including the high likelihood of being unable to obtain a future visa, and the best interests of the applicant's child, concluding that his limited engagement and history of offending meant his contribution to the child's upbringing would likely not be positive.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Subclass 444 visa. The Deputy President concluded that the risk posed by the applicant's continued presence in Australia, stemming from his repeated offending and lack of rehabilitation, carried significant weight in favour of cancellation, outweighing the mitigating factors.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The two documents are a list of people, including the applicant, who were ‘extracted’ from the Prison (remand) list during a week in 2019 and in the second document during a week in 2020. The list of names is not related to the applicant and is not relevant to this case. As such this material was not summarised to the applicant and it does not form a part of the reasoning in this matter.CONSIDERATION OF CLAIMS AND EVIDENCE 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):the Minister may cancel a visa if he or she is 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 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? 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]. The applicant’s offending In this case the applicant’s offending is at the heart of the consideration of whether he poses a risk to the health, safety or good order of the Australian community and as such I have listed it below: The NOICC also included what were then pending charges listed as the following: The applicant did not provide the Notice of Intention to Consider Cancellation (NOICC) to the Tribunal. As the list of convictions was contained in the NOICC and not available elsewhere in the applicant’s submissions I went through the list of his past offences summarising the key events under s 359AA. I explained that the relevance was that the material suggests that he is or may be an ongoing risk to the community as his offending has continued and escalated, and in addition that the nature of the offending may outweigh all other factors that need to be considered under the discretionary elements. I noted that this would be a reason or part of the reason for finding that there are grounds for cancellation and for cancelling the visa. I asked the applicant in the context of these past offences, what led to the offending and what makes him believe that he would stop offending in the future. I offered the applicant an opportunity to adjourn at any stage through my recitation of the offences, which he did not request.

Decision

Reasons for decision

When prompted he also said that he can easily find work in Australia. He is a qualified roof tiler and has undertaken other work including truck driving, container work and plastering. We discussed his ability to find work in New Zealand. He said that he hasn’t been there but probably could find work, though he doesn’t know as he has only lived in Australia. I noted that unemployment is low[1] and there are jobs for his skill set[2] which he acknowledged. [1] Stats NZ: Tatauranga Aotearoa, Unemployment Rate 3.4% Nick Brundson, ‘Labour market pressures here to stay’, March 2022 >The applicant’s need to remain in Australia is based upon his relationship with his family and to a lesser degree his established job network. I have considered below the applicant’s relationship with his daughter. Regarding his other family members, the applicant has a sister in Queensland who he has not seen for a while, aunts and a grandmother in Sydney whom he has similarly not seen. But he has a relationship with his siblings and mother who live in Melbourne. It is difficult to understand the nature of this relationship as the applicant has explained that the police imposed an AVO limiting his ability to attend to the home in which one of his siblings and mother live. It is concerning that there was an AVO imposed on the applicant relating to his family members, and without further information, I can only interpret it on face value which is that at some stage his relationship with one family member had fractured. Despite this, I note that his mother supported the applicant by writing his response to the Department’s NOICC which I consider to be an implicit indication of her support for him to remain in the country. On the other hand, I note that she did not attend the hearing as a witness despite it being specifically conveyed through correspondence and then explained by the Detention centre officers (see document 10757253 in the Tribunal file) to the applicant that she can attend. When considered overall, I place some weight against cancellation based upon the extent of his relationship with his mother and less so with his other family members. The extent of compliance with visa conditionsNo conditions were imposed on the applicant’s visa. As such this consideration is neutral and I place no weight either for or against cancellation. Degree of hardship that may be caused to the applicant or his family (financial, psychological, emotional or other hardship)The applicant has limited knowledge of New Zealand. He lived in the country until he was 8 years old and then travelled back once when he was 14 or 15 years old staying for one month with his grandmother, who has since moved to Sydney. While the applicant’s biological father lives there, he said that he would not seek him out.The applicant’s brother has recently returned to New Zealand. The applicant spoke to his brother a few days ago but not since his deportation. He said that the family are from a place on the north island, but his brother is headed to a different town where they have no relations or history. He believes it’s because his brother was deported at the same time as another man who has relations there and so they are going together.I put to him that the New Zealand government helps to facilitate the process of return and integration. He said that he wasn’t sure.[3] He said that filling out paperwork will be difficult as he can’t read or write. I put to him that there would be government support for people who can’t read as there are for blind people or people suffering mental health support but I note that there are similar supports in Australia and yet he has not sought them out or pursued opportunities when they may have been presented to him. He believes that he will be homeless and on the streets. The applicant said that when he first got out of jail in Australia, he was given accommodation for four weeks, but he was placed in a shared house with junkies that was ‘filth’ and he refused to stay for more than one night.[3] FAQs for Returning Offenders, Department of Corrections, January 2019, >When asked to identify the hardship he faces, he said that he doesn’t speak the language, saying that they spoke Maori. I told him that they all speak English as well. He said that New Zealand is all ‘ganged up’. He said that it is more ‘hectic’ than in Australia. He said that he doesn’t know anyone. In considering the overall hardship the applicant will face I note that underlying the challenge is his limited literacy and numeracy. Although there are many similarities between Australia and New Zealand including the language, culture and institutions, it is relevant to note that even in Australia he struggled to navigate the system such as acquiring a driver’s license despite his familiarity with the country. Having said that he nevertheless appears not to have made much of an effort and as such to some degree it is a choice that he has made. Regardless, I accept that challenges arising from navigating the bureaucracy in New Zealand will be more difficult for the applicant to overcome than they would be in Australia where he has support and familiarity. While he will have his brother to accompany him on this journey as well as the support services made available by the New Zealand government, they cannot wholly overcome the challenges he faces due to his limited literacy and numeracy. I also acknowledge that not knowing any local people will make it all the more difficult to navigate the bureaucracy but also to find work or accommodation. While the applicant mentioned New Zealand being more ‘ganged up’ than Australia, I do not accept that it is predestined that he will be involved with gangs. Whether he is will be dependent upon choices that he will have to make and having the opportunity to start afresh as he did by moving out of Melton to Deer Park may give him the break that he needs to not associate with others involved in crime. When considering the degree of hardship the applicant’s family faces as a result of his inability to return, I note that the impact upon his daughter is considered below. Separate to his daughter I place no weight on the impact to the mother of his child as there is no relationship between them. While there would be an impact on the applicant’s mother, the applicant did not indicate or demonstrate a relationship with his other siblings such that any weight could be given to the hardship they may face. Regarding his mother, the hardship will be solely emotional as she works and shares a house with others and is not dependent upon the applicant financially. While the impact can not be dismissed, I am cognizant that the applicant’s mother did not attend as a witness to the hearing despite specifically noting that she could attend. I also note that the applicant has indicated that there was an AVO against him which limited his ability to return to his mother’s house. The applicant was unable to detail the reason for it and so it is unclear what role his mother has in this. On the other hand, the applicant had submitted in response to the NOICC an email with well written responses that he explained at the hearing was typed by his mother indicating some degree of relationship and desire on the part of the mother to support her son. Overall, noting the amplification of the hardship he faces as a result of his limited literacy and numeracy and taking into consideration my findings on the hardship faced by the family, I place moderate weight against cancellation. Circumstances in which ground of cancellation arose. The circumstances in which the grounds for cancellation arose are that the applicant committed offences. As noted above, the root causes for the applicant’s ongoing offending may include his upbringing by the state and the abuse he received at the hands of his stepfather. While some weight can be placed on this past, along with the more practical circumstances in which the ground of cancellation arose such as an inability to access a driver’s licence, ultimately, though, some responsibility must be borne by the applicant for the choices he made. The applicant has a long history of offending such that he has had numerous engagements with professionals including during his youth. Opportunities to reflect on his life and his choices were available after each encounter with the law. Yet, for twenty years he continued to turn to a life that put others in the community at risk or in harm. Even when asked how he ends up returning to crime he acknowledged that he sometimes instigates it, a statement that reflects poorly on the applicant’s acknowledgement of new path that he has to forge. For the reasons of his extensive offending and choices he made along this pathway, I find that any weight that can be placed on his past circumstances as being out of his control, is outweighed by his ongoing and repeated disregard for others through his behaviour and a lack of an effort to remedy the situation. I place considerable weight in favour of cancellation because the circumstances in which the grounds were cancelled indicate a wilful disregard for others in the community.Past and present behaviour of the visa holder towards the departmentThere is no available evidence before me to suggest that the applicant has had any adverse engagement with the Department, as this is a basic expectation of all visa holders, I place limited weight against cancellation. Whether there would be consequential cancellations under s 140There are no consequential cancellations under s 140. As such this consideration is neutral and I place no weight either for or against 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 interventionThe cancellation of the applicant’s Subclass 444 visa will lead to the applicant being liable for removal under s198 unless he is able to obtain an alternative visa. But in such an endeavour the applicant is barred from applying for certain prescribed visas arising from s 48 of the Act. Of those that are not prescribed, there is no apparent pathway for the applicant to apply for them, for example, a partner visa requires a sponsor, or a protection visa a well-founded fear of persecution. As a result of the cancellation the applicant will not be able to apply for a new visa for three years due to public interest criteria 4013, though this has a compelling and compassionate waiver. I discussed this with the applicant, specifically noting that it prevents him from making a valid application for a three-year period from the date of the cancellation which would mean no earlier than January 2024. The applicant would also be impacted by PIC 4014 which also has a three-year bar, but it begins from the date of departure from Australia and as such it would limit the applicant from applying prior to approximately April 2026. Nevertheless, these restrictions become moot considering the restrictions arising from his prior offending. As the applicant has an extensive criminal record, it is likely that he would be deemed a behaviour concern non-citizen and as such be unable to be granted a special category subclass 444 visa. Section 32(2)(a)(ii) of the Act reads: (2) A criterion for a special category visa is that the Minister is satisfied the applicant is: (a) a non-citizen: (ii) is neither a behaviour concern non-citizen nor a health concern non-citizen; or ‘Behaviour concern’ is defined in s.5(1) as a person who has been ‘convicted of a crime and sentenced to death or imprisonment, for at least one year; or has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year…’. The applicant meets the criteria of behavioural concern both for being convicted and sentenced for a crime of at least one year and for being sentenced based on two or more crimes for a period of at least one year. Were the applicant to seek and be eligible for a different visa, there is a similar character provision under s 501 of the Act which would be enlivened as a result of the degree of his past offending. I explained to the applicant the above law and the effective impact being that it is likely that he would be unable to return to Australia into the foreseeable future. Other than what was discussed already, the applicant only added in response to a question about his mum being able to visit that there are no impediments to her travelling to New Zealand. The mandatory legal consequences of the cancellation of the applicant’s visa are that it would be highly unlikely that he would be able to obtain a visa to return to Australia. Although to some degree weight has been given to the ramifications that arise from this outcome, particularly when considering the hardship the applicant faces, I place additional weight against cancellation for the permanence that this aspect of the law imposes on the situation. Without ministerial intervention, a change in the law or an as yet unidentified pathway to a visa that does not have a behavioural or character test, the applicant will be unable to return to Australia. This weighs heavily in this decision considering that the applicant has nearly all of his family living in Australia, though as noted by the applicant, at least for his mother there is no obstacle to her visiting New Zealand. Taking into consideration the permanence of the impact that this cancellation will have on the applicant, I place considerable weight against cancellation. 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 In considering Australia’s non-refoulment obligations I find that if the applicant was to be returned to New Zealand, Australia would not be in breach of its international obligations as the applicant has not lodged a protection application, he has not expressed a reason to fear return to New Zealand and there is no information on the material available to the Tribunal to suggest that there would be a reason why he would face a well-founded fear of persecution or a real risk of significant harm. I have also considered the Convention on the Rights of the Child. In considering the obligations under this international treaty the correct approach is to reflect on what is in the best interests of the child. The applicant has a seven-year-old daughter. The courts have given custody to the child’s grandmother according to the applicant. Some form of protection order has been put in place that prevents the applicant from coming near to the home in which the child, her mother and the grandmother live. The applicant has not been involved in the child’s life for several years, suggesting it was since she was a ‘baby’. He has made very limited efforts to remedy that, only once enquiring to his lawyer about being able to work through the courts to obtain some parenting rights. In considering the applicant’s ability to contribute positively to the child’s upbringing I note that the applicant himself has a long history of offending and a general disregard for the law. He has been in extended imprisonment and detention for over four years. Through this period, the applicant has not found a path that could extricate himself from this cycle of offending. With such a history and with a limited prospect of rehabilitation I place limited weight on the value of the parenting the applicant would be able to afford to the child. When considered overall, noting the circumstances of the child and her past relationship with her father including the limited engagement she has had and the involvement of the authorities to further limit his ability to engage with her in addition to the low level of confidence I have that his contributions as a father would be of a positive impact, I place little weight against cancellation. If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in AustraliaThe applicant’s subclass 444 visa is a temporary visa and as such this consideration is neutral and I place no weight either for or against cancellation.Any other relevant mattersI place very heavy weight in favour of cancellation of the applicant’s visa for the reason of the risk that his inability to divert from the pathway of repeated offending and continue to be a risk to the Australia community as described in the first section of this decision when considering the grounds for cancellation. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelledDECISIONThe Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.Denis DragovicDeputy President

Ratio Decidendi

Legal Principle Established

Overall, when I consider the applicant’s past offending, the repeated and escalating nature of it, noting that he has undertaken very limited efforts to break with his past and that there is little that he could concretely identify as being a driver that would change the direction of his life, I find 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 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’. These are shown as itallic headings belowThe 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 The applicant mentioned re-establishing a relationship with his daughter and maintaining a relationship with his mother, younger brother, sisters and other extended family as the purpose of his stay in Australia. When prompted he also said that he can easily find work in Australia. He is a qualified roof tiler and has undertaken other work including truck driving, container work and plastering. We discussed his ability to find work in New Zealand. He said that he hasn’t been there but probably could find work, though he doesn’t know as he has only lived in Australia. I noted that unemployment is low[1] and there are jobs for his skill set[2] which he acknowledged. [1] Stats NZ: Tatauranga Aotearoa, Unemployment Rate 3.4% Nick Brundson, ‘Labour market pressures here to stay’, March 2022 >The applicant’s need to remain in Australia is based upon his relationship with his family and to a lesser degree his established job network. I have considered below the applicant’s relationship with his daughter. Regarding his other family members, the applicant has a sister in Queensland who he has not seen for a while, aunts and a grandmother in Sydney whom he has similarly not seen. But he has a relationship with his siblings and mother who live in Melbourne. It is difficult to understand the nature of this relationship as the applicant has explained that the police imposed an AVO limiting his ability to attend to the home in which one of his siblings and mother live. It is concerning that there was an AVO imposed on the applicant relating to his family members, and without further information, I can only interpret it on face value which is that at some stage his relationship with one family member had fractured. Despite this, I note that his mother supported the applicant by writing his response to the Department’s NOICC which I consider to be an implicit indication of her support for him to remain in the country. On the other hand, I note that she did not attend the hearing as a witness despite it being specifically conveyed through correspondence and then explained by the Detention centre officers (see document 10757253 in the Tribunal file) to the applicant that she can attend. When considered overall, I place some weight against cancellation based upon the extent of his relationship with his mother and less so with his other family members. The extent of compliance with visa conditionsNo conditions were imposed on the applicant’s visa. As such this consideration is neutral and I place no weight either for or against cancellation. Degree of hardship that may be caused to the applicant or his family (financial, psychological, emotional or other hardship)The applicant has limited knowledge of New Zealand. He lived in the country until he was 8 years old and then travelled back once when he was 14 or 15 years old staying for one month with his grandmother, who has since moved to Sydney. While the applicant’s biological father lives there, he said that he would not seek him out.The applicant’s brother has recently returned to New Zealand. The applicant spoke to his brother a few days ago but not since his deportation. He said that the family are from a place on the north island, but his brother is headed to a different town where they have no relations or history. He believes it’s because his brother was deported at the same time as another man who has relations there and so they are going together.I put to him that the New Zealand government helps to facilitate the process of return and integration. He said that he wasn’t sure.[3] He said that filling out paperwork will be difficult as he can’t read or write. I put to him that there would be government support for people who can’t read as there are for blind people or people suffering mental health support but I note that there are similar supports in Australia and yet he has not sought them out or pursued opportunities when they may have been presented to him. He believes that he will be homeless and on the streets. The applicant said that when he first got out of jail in Australia, he was given accommodation for four weeks, but he was placed in a shared house with junkies that was ‘filth’ and he refused to stay for more than one night.[3] FAQs for Returning Offenders, Department of Corrections, January 2019, >When asked to identify the hardship he faces, he said that he doesn’t speak the language, saying that they spoke Maori. I told him that they all speak English as well. He said that New Zealand is all ‘ganged up’. He said that it is more ‘hectic’ than in Australia. He said that he doesn’t know anyone. In considering the overall hardship the applicant will face I note that underlying the challenge is his limited literacy and numeracy. Although there are many similarities between Australia and New Zealand including the language, culture and institutions, it is relevant to note that even in Australia he struggled to navigate the system such as acquiring a driver’s license despite his familiarity with the country. Having said that he nevertheless appears not to have made much of an effort and as such to some degree it is a choice that he has made. Regardless, I accept that challenges arising from navigating the bureaucracy in New Zealand will be more difficult for the applicant to overcome than they would be in Australia where he has support and familiarity. While he will have his brother to accompany him on this journey as well as the support services made available by the New Zealand government, they cannot wholly overcome the challenges he faces due to his limited literacy and numeracy. I also acknowledge that not knowing any local people will make it all the more difficult to navigate the bureaucracy but also to find work or accommodation. While the applicant mentioned New Zealand being more ‘ganged up’ than Australia, I do not accept that it is predestined that he will be involved with gangs. Whether he is will be dependent upon choices that he will have to make and having the opportunity to start afresh as he did by moving out of Melton to Deer Park may give him the break that he needs to not associate with others involved in crime. When considering the degree of hardship the applicant’s family faces as a result of his inability to return, I note that the impact upon his daughter is considered below. Separate to his daughter I place no weight on the impact to the mother of his child as there is no relationship between them. While there would be an impact on the applicant’s mother, the applicant did not indicate or demonstrate a relationship with his other siblings such that any weight could be given to the hardship they may face. Regarding his mother, the hardship will be solely emotional as she works and shares a house with others and is not dependent upon the applicant financially. While the impact can not be dismissed, I am cognizant that the applicant’s mother did not attend as a witness to the hearing despite specifically noting that she could attend. I also note that the applicant has indicated that there was an AVO against him which limited his ability to return to his mother’s house. The applicant was unable to detail the reason for it and so it is unclear what role his mother has in this. On the other hand, the applicant had submitted in response to the NOICC an email with well written responses that he explained at the hearing was typed by his mother indicating some degree of relationship and desire on the part of the mother to support her son. Overall, noting the amplification of the hardship he faces as a result of his limited literacy and numeracy and taking into consideration my findings on the hardship faced by the family, I place moderate weight against cancellation. Circumstances in which ground of cancellation arose. The circumstances in which the grounds for cancellation arose are that the applicant committed offences. As noted above, the root causes for the applicant’s ongoing offending may include his upbringing by the state and the abuse he received at the hands of his stepfather. While some weight can be placed on this past, along with the more practical circumstances in which the ground of cancellation arose such as an inability to access a driver’s licence, ultimately, though, some responsibility must be borne by the applicant for the choices he made. The applicant has a long history of offending such that he has had numerous engagements with professionals including during his youth. Opportunities to reflect on his life and his choices were available after each encounter with the law. Yet, for twenty years he continued to turn to a life that put others in the community at risk or in harm. Even when asked how he ends up returning to crime he acknowledged that he sometimes instigates it, a statement that reflects poorly on the applicant’s acknowledgement of new path that he has to forge. For the reasons of his extensive offending and choices he made along this pathway, I find that any weight that can be placed on his past circumstances as being out of his control, is outweighed by his ongoing and repeated disregard for others through his behaviour and a lack of an effort to remedy the situation. I place considerable weight in favour of cancellation because the circumstances in which the grounds were cancelled indicate a wilful disregard for others in the community.Past and present behaviour of the visa holder towards the departmentThere is no available evidence before me to suggest that the applicant has had any adverse engagement with the Department, as this is a basic expectation of all visa holders, I place limited weight against cancellation. Whether there would be consequential cancellations under s 140There are no consequential cancellations under s 140. As such this consideration is neutral and I place no weight either for or against 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 interventionThe cancellation of the applicant’s Subclass 444 visa will lead to the applicant being liable for removal under s198 unless he is able to obtain an alternative visa. But in such an endeavour the applicant is barred from applying for certain prescribed visas arising from s 48 of the Act. Of those that are not prescribed, there is no apparent pathway for the applicant to apply for them, for example, a partner visa requires a sponsor, or a protection visa a well-founded fear of persecution. As a result of the cancellation the applicant will not be able to apply for a new visa for three years due to public interest criteria 4013, though this has a compelling and compassionate waiver. I discussed this with the applicant, specifically noting that it prevents him from making a valid application for a three-year period from the date of the cancellation which would mean no earlier than January 2024. The applicant would also be impacted by PIC 4014 which also has a three-year bar, but it begins from the date of departure from Australia and as such it would limit the applicant from applying prior to approximately April 2026. Nevertheless, these restrictions become moot considering the restrictions arising from his prior offending. As the applicant has an extensive criminal record, it is likely that he would be deemed a behaviour concern non-citizen and as such be unable to be granted a special category subclass 444 visa. Section 32(2)(a)(ii) of the Act reads: (2) A criterion for a special category visa is that the Minister is satisfied the applicant is: (a) a non-citizen: (ii) is neither a behaviour concern non-citizen nor a health concern non-citizen; or ‘Behaviour concern’ is defined in s.5(1) as a person who has been ‘convicted of a crime and sentenced to death or imprisonment, for at least one year; or has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year…’. The applicant meets the criteria of behavioural concern both for being convicted and sentenced for a crime of at least one year and for being sentenced based on two or more crimes for a period of at least one year. Were the applicant to seek and be eligible for a different visa, there is a similar character provision under s 501 of the Act which would be enlivened as a result of the degree of his past offending. I explained to the applicant the above law and the effective impact being that it is likely that he would be unable to return to Australia into the foreseeable future. Other than what was discussed already, the applicant only added in response to a question about his mum being able to visit that there are no impediments to her travelling to New Zealand. The mandatory legal consequences of the cancellation of the applicant’s visa are that it would be highly unlikely that he would be able to obtain a visa to return to Australia. Although to some degree weight has been given to the ramifications that arise from this outcome, particularly when considering the hardship the applicant faces, I place additional weight against cancellation for the permanence that this aspect of the law imposes on the situation. Without ministerial intervention, a change in the law or an as yet unidentified pathway to a visa that does not have a behavioural or character test, the applicant will be unable to return to Australia. This weighs heavily in this decision considering that the applicant has nearly all of his family living in Australia, though as noted by the applicant, at least for his mother there is no obstacle to her visiting New Zealand. Taking into consideration the permanence of the impact that this cancellation will have on the applicant, I place considerable weight against cancellation. 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 In considering Australia’s non-refoulment obligations I find that if the applicant was to be returned to New Zealand, Australia would not be in breach of its international obligations as the applicant has not lodged a protection application, he has not expressed a reason to fear return to New Zealand and there is no information on the material available to the Tribunal to suggest that there would be a reason why he would face a well-founded fear of persecution or a real risk of significant harm. I have also considered the Convention on the Rights of the Child. In considering the obligations under this international treaty the correct approach is to reflect on what is in the best interests of the child. The applicant has a seven-year-old daughter. The courts have given custody to the child’s grandmother according to the applicant. Some form of protection order has been put in place that prevents the applicant from coming near to the home in which the child, her mother and the grandmother live. The applicant has not been involved in the child’s life for several years, suggesting it was since she was a ‘baby’. He has made very limited efforts to remedy that, only once enquiring to his lawyer about being able to work through the courts to obtain some parenting rights. In considering the applicant’s ability to contribute positively to the child’s upbringing I note that the applicant himself has a long history of offending and a general disregard for the law. He has been in extended imprisonment and detention for over four years. Through this period, the applicant has not found a path that could extricate himself from this cycle of offending. With such a history and with a limited prospect of rehabilitation I place limited weight on the value of the parenting the applicant would be able to afford to the child. When considered overall, noting the circumstances of the child and her past relationship with her father including the limited engagement she has had and the involvement of the authorities to further limit his ability to engage with her in addition to the low level of confidence I have that his contributions as a father would be of a positive impact, I place little weight against cancellation. If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in AustraliaThe applicant’s subclass 444 visa is a temporary visa and as such this consideration is neutral and I place no weight either for or against cancellation.Any other relevant mattersI place very heavy weight in favour of cancellation of the applicant’s visa for the reason of the risk that his inability to divert from the pathway of repeated offending and continue to be a risk to the Australia community as described in the first section of this decision when considering the grounds for cancellation. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelledDECISIONThe Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.Denis DragovicDeputy President