Brown (Migration)

[2019] AATA 1083

Brown (Migration) [2019] AATA 1083 (15 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Daniel Edward Thomas Brown

CASE NUMBER:  1828356

HOME AFFAIRS REFERENCE(S):           BCC2018/4171380

MEMBER:John Cipolla

DATE:15 March 2019

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 (Temporary Work (Skilled)) visa.

Statement made on 15 March 2019 at 9:38am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – risk to safety of Australian community or individual – assault occasioning actual bodily harm – previously convicted of common assault (domestic violence) – consideration of discretion – pleaded self-defence – 12 month community corrections order – genuine remorse and contrition – taken positive steps to address behaviour – 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 26 September 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. 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

3. 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(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?

4. The delegate cancelled the visa under s.116(1)(e) on the basis that the delegate determined 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 delegate made this determination on the basis that the applicant had been charged by NSW police in August 2018 with threaten violence and cause fear and assault- occasioning actual bodily harm. The delegate further noted that this was not the first time the applicant had adverse interaction with the criminal justice system as in May 2017 he had been convicted of common assault (domestic violence). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   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?

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 Tribunal has before it Departmental file BCC2018/4171380 which it has duly considered along with the Tribunal review file.

9. Evidence on the Departmental file indicates as follows. New South Wales police provided the Department with a copy of the Court attendance notice pertaining to the applicant, indicating that the applicant had been charged with use/threaten violence causing fear for personal safety along with assault occasioning actual bodily harm pertaining to an incident that occurred on 12 August 2018. The Department was also provided with a copy of the police facts sheet pertaining to the charges. New South Wales police had initially contacted the Department when the applicant was arrested and detained in relation to these charges in order to ascertain the immigration status of the applicant.

10. The Department of Immigration was also furnished with a police facts sheet pertaining to the applicant being charged with the offence of common assault, domestic violence which related to an incident which occurred on 5 February 2017, a charge for which the applicant was eventually convicted and placed on a 12 month good behaviour bond in August 2017 at the Burwood Local Court.

11. As a result of the information provided to them the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) dated 10 September 2018. The NOICC indicated that the delegate was considering cancellation of the applicant’s visa under S.116(1)(e) of the Migration Act on the basis that there appeared to be grounds for cancellation of the applicant’s Subclass 457 visa due to the fact 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.

12. The NOICC particularised the grounds for cancellation that appeared to exist noting that:

    The Department has received information that you have allegedly engaged in physically violent behaviour against an individual within the Australian community. The information before me is that as a result of this alleged behaviour, you were arrested and subsequently charged by the New South Wales police on 12 August 2018 with the following offences: threaten violence causing fear and assault occasioning actual bodily harm.

    A New South Wales police facts sheet obtained by the Department indicates that the alleged victims of the offences were previously unknown to you. Based on police information, it is alleged that on 11 August 2018, you had been consuming alcohol with 2 friends with the intention of attending a house party at an address on Old South Head Road, Bondi.

    As you are walking along Old South Head Road you came across the victims who were with a group of friends. You allegedly yelled “lets go” then ran towards the victim and punched him in the face with a clenched fist causing him to fall onto the footpath. This caused a 1 cm split to the victim’s upper lip and a suspected fractured right eye socket and eye damage. Following your alleged actions, when the victim and his group of friends retreated to their apartment, your group allegedly swore at them and stated “why are you waiting, come and fight us”.

    Following these events, New South Wales police attended the scene and located you and your 2 friends. Police sighted a wide abrasion on your right knuckle accompanied by swelling of your hand. Police information also indicates that you allegedly are part of the group who punched another victim; who was part of the first victims group of friends.

    I note that this is not the first occasion whereby you have come to the attention of the police. You were previously charged and convicted of the following offence against the law of the State of New South Wales on 31 May 2017, common assault domestic violence-convicted-section 9-good behaviour bond for 12 months.

    I consider that your alleged behaviour involving physical violence against persons previously unknown to you in a public place demonstrates your general disregard for Australian law and potentially endangers the safety of the wider Australian community. As such it appears that your presence in Australia may pose a risk to the safety of the Australian community.

13. The applicant was invited to provide a response to the NOICC.  The applicant engaged a representative, a registered migration agent/lawyer to provide a response to the Department on his behalf. 

14. The Tribunal has had regard to the response dated 17 September 2018. The submission largely notes that the NOICC had been issued on the basis of a criminal charge and that the evidence pertaining to the criminal charge was going to be contested by the applicant. The submission also addressed the relevant discretionary considerations pertaining to whether or not the visa should be cancelled. The submission notes that the criminal proceedings pertaining to the applicant were ongoing and that the charges were yet to be finally determined and the submission further noted that a defence of ‘self-defence’ had been raised by the applicant and implored the delegate to take into consideration all the relevant circumstances pertaining to the applicant both personal, professional and other circumstances when looking at the alleged risk to the Australian community posed by the applicant’s presence in Australia.

15. Annexed to this submission was a statement from the applicant dated 11 September 2018. A letter to the Eastern Suburbs Police Area Command from the applicant’s criminal lawyer dated 31 August 2018, a contract of employment pertaining to the applicant’s employment with his 457 business sponsor. The submission also annexed a number of statements from the applicant’s employer and employment colleagues.

16. Evidence on the Departmental file indicates that a number of personal letters of support were also provided to the Department’s visa cancellation unit.

17. On 26 September 2018 the Department proceeded to cancel the applicant’s visa under Section 116 of the Migration Act. The delegate’s decision record outlined the particulars of the grounds of cancellation. The delegate determined that there were grounds for cancellation under s.116(1)(e)(i). The delegate noted that the reason for their satisfaction that the grounds existed was that the visa holder had been charged by NSW police with charges of threaten violence and cause fear along with assault occasioning actual bodily harm. The delegate determined that these charges along with a previous conviction for common assault domestic violence in 2017 exhibited a pattern of violent behaviour and that the applicant’s presence in Australia posed a risk to the safety of the Australian community.

18. The delegate then went on to consider whether or not the visa applicant’s visa should be cancelled and had regard to the procedural instructions pertaining to general visa cancellation powers under section 116 of the Migration Act. Having regard to all of those factors the delegate was satisfied that the grounds for cancellation of the visa outweighed the reasons not to cancel the visa and proceeded to cancel the applicant’s visa.

19. The applicant lodged an application for review with the Administrative Appeals Tribunal on 27 September 2018.

20. Prior to the conduct of the review hearing on 19 December 2018 the Tribunal was provided with a pre-hearing submission which it has duly considered.

21. The submission made reference to the police facts sheet and contended that it did not provide probative value in determining whether the applicant’s presence in Australia was a risk to the health, safety or good order of the Australian community or a segment of the Australian community. The submission reiterates that the applicant had contested the police facts sheet. The submission also makes reference to the procedural provisions that govern merits review by the Tribunal. The submission notes that the applicant had pleaded not guilty to the charges of August 2018 during a court appearance on 30 October 2018. The submission makes reference to the principle of legality and the presumption of innocence and posits that Tribunal members and applicants “are placed in an impossible position where the primary decision maker has relied upon a police facts sheets (moreover, unresolved criminal charges) in cancellations under s.116(1)(e)”.The submission notes that the applicant was relying on both the submissions and supporting documents that had been provided to the Department at primary stage and highlighted some of the comments and observations provided by members of the Australian community in support of the applicant attesting to his good character.

    REVIEW HEARING

22. The Tribunal conducted a review hearing on 19 December 2018 which as has been noted above was attended by the applicant, his representative, his work manager and the manager of his local football club. The Tribunal noted that it had taken into consideration information on the Departmental file along with information that had been provided at review and that the Tribunal would take into consideration any evidence given by the applicant and his witnesses during the course of the review hearing.

23. The Tribunal also made extensive reference to the process of merits review and the relevant considerations in the review before it.

24. The applicant gave his personal details, he advised that he was currently 23 years old and was born in the United Kingdom. The Tribunal asked the applicant about his skills and qualifications. The applicant stated that he had undertaken an apprenticeship in drainage in the United Kingdom along with associated studies over 3 years.

25. The Tribunal asked the applicant whether he had adverse interaction with the criminal justice system in the United Kingdom. The applicant advised that one night he was out with a group of friends and that he had an argument with a bouncer at a nightclub when he was refused entry. The applicant stated that he was pushed by the bouncer and he pushed the bouncer back. The applicant stated that as a consequence he was taken to the local police station and given a caution but not formally charged. The Tribunal asked the applicant whether alcohol was a factor in this incident and he advised it was.

26. The Tribunal asked the applicant about the common assault that occurred on 31 May 2017. The applicant stated that he had a friend who came and stayed with him and his then partner Amy. The applicant stated that he had an argument with his partner and that there was shouting along with pushing and shoving and that as a consequence the police attended the premises. The applicant stated that he was charged with common assault and that he attended Burwood Local Court where he was put on a 12 month good behaviour bond.  The applicant stated that he is now in a new relationship with a woman also named Amy.

27. The Tribunal asked the applicant about the second offence for which he had been charged. The applicant stated that since he was put on a good behaviour bond as a consequence of the common assault charge that he had tried to become a better person and that the current charges related to him being in the wrong place at the wrong time.  The Tribunal asked the applicant whether alcohol was a factor in this incident and he advised it was.

28. The Tribunal asked the applicant about his immigration history. The applicant advised that he came to Australia in 2016 as the holder of a Subclass 417 Working Holiday visa. The applicant stated that he spent 10 days in Sydney and then travelled to Perth where he resided with a family friend. The applicant stated that he lived and worked in Perth for a period of 6 months, working as a driver. The applicant then worked in Newman in Western Australia laying telecommunication cables. The applicant advised he then travelled to Victoria and undertook farm work. The applicant then travelled up the east coast of Australia and resided in Port Douglas for a period of time before returning to The United Kingdom.

29. The Tribunal asked the applicant about the current court proceedings. The applicant stated that his next court attendance was on 22 February 2019. The applicant stated that with regard to both sets of charges he was pleading not guilty. The applicant stated that he was disputing the facts sheet prepared by the police. The applicant stated that his criminal lawyers expected to enter into a plea deal with regard to the charges and that the applicant was going to be pleading self-defence.

30. The Tribunal discussed with the applicant the fact that since he had been in Australia he had been charged with a number of violent offences pertaining to assaults and asked him to comment on his perceived risk to the community as a consequence of his criminal history. The applicant stated that he had a good job in Australia as the holder of a Subclass 457 visa. The applicant stated that he believed he had a kind heart and believed that he was a good person and that he did not believe he was a risk to the community. The Tribunal noted that the police facts sheet indicated that the common assault charges and the most recent charges seem to involve the use of alcohol and seem to indicate a propensity for violent conduct as a result of the consumption of alcohol. The Tribunal asked the applicant whether he had joined a program to address problems with alcohol or problems with violence. The applicant stated that he had not engaged in such a program but would definitely consider engaging with appropriate programs in this respect.

31. The Tribunal noted that the most recent charge indicated that the applicant assaulted another person cutting their lip and fracturing their eye socket. The applicant was asked to respond to this. The applicant stated that he had acted in self-defence.

32. The Tribunal made reference to the police facts sheet and asked the applicant why he had not walked away from confrontation in Bondi rather than addressing it head on.  The applicant was invited to comment on this. The applicant advised that he was going to a party to meet his girlfriend Amy. He advised that his mobile phone was flat. The applicant stated that when he went to enter the party a bottle was thrown in his direction and the applicant stated that this was not the party that he was supposed to be attending.

33. The Tribunal asked the applicant what hardship he would experience as a consequence of the ongoing cancellation of his visa. The applicant stated that he had a very good job in Australia and that there were better job opportunities for him in Australia due to the large number of infrastructure projects currently being undertaken. The applicant stated that he was working on tunnelling infrastructure. The applicant stated that he had a good circle of friends in Australia and had developed ties to Australia. The applicant stated that he had put everything into his life in Australia and set goals for himself and that he had a solid work ethic.

34. The Tribunal asked the applicant what he believed would be the prospective outcome of his criminal proceedings scheduled for 22 February 2019. The applicant stated that best case scenario was a good behaviour bond or a community service order and that the worst-case scenario was a term of imprisonment.

1. The Tribunal took evidence from Mr Keith Leer who is the applicant’s manager at his place of employment. The witness advised that he had known the applicant for about 7 to 8 months. He advised that the applicant was a good worker and that he stood out because of the depth of his knowledge. The witness advised that the applicant was working on a major tunnelling project in Sydney and that there were 270 employees. He advised that it was a substantial infrastructure project and most of the work was being conducted in difficult conditions underground. The witness advised that the applicant was a leading hand pipe layer and that he oversaw a team of 7 to 10 people. The witness advised that the applicant had experience as a leading hand and was involved in teaching apprentices. The witness advised it was difficult to obtain persons with the skill set of the applicant to work in major infrastructure projects. The witness stated that the applicant was of good character. The witness stated that upon being charged with criminal offences the applicant disclosed his criminal history and defences to the company up front. The witness stated that it would be difficult to replace somebody with the attributes of the applicant.

2. The Tribunal took evidence from Mr Matthew Nixon the chairperson of the Waterloo Football Club. He advised that he had met the applicant at the start of last football season. He advised that the Waterloo Football Club was a small club that was self-funded. He advised that the applicant had a competitive nature and was a skilled footballer and was committed to preseason training sessions and playing a full season. He advised that the applicant had been involved in raising funds for the football club.

3. The Tribunal asked the applicant whether he had any final comments. The Tribunal also asked the applicant what would stop him from acting out in an inappropriate way in the future. The applicant stated that he was close to his current partner Amy and that he did not want to prejudice that relationship. The applicant stated that he did not want to lose his place in Australia and that he was committed to working in Australia. The applicant stated that he had family members from the United Kingdom visit him in Australia namely his father, and paternal grandparents along with his mother and they had seen the life that he had made for himself in Australia. The applicant re-stated that the recent charges arose as a consequence of him being at the wrong place at the wrong time. The applicant stated that everything is been stripped away as a consequence of his visa cancellation. The applicant stated that he agreed with the Tribunal that an alcohol program and counselling for his violent outbursts would be useful and that he would engage in such programs to improve himself. The applicant stated that he had a solid work ethic and worked long hours for the Australian business that had sponsored him. The applicant stated that he undertook to substantially improve himself by engaging in self-help programs and that he hoped that the Tribunal in the future would see “a different Daniel Brown to the one in the folder before the Tribunal.”

4. The applicant advised that a few weeks ago he received a phone call from the United Kingdom advising that an auntie had passed away and that he could not return to United Kingdom to support his mother because he would not be allowed to re-enter Australia. The applicant stated that this was a big sacrifice that he had to make. The applicant stated that he wanted to rebuild his life in Australia and that he believed he could undertake great things in this country. The applicant stated that the police facts sheet was not a clear recitation of what happened on the night that led to the laying of charges. The applicant stated that he would not go up and attack somebody without a reason.

5. The Tribunal asked the applicant whether the incident made him question his own judgement. The applicant stated that it did make him question his own judgement and the applicant stated that he wished he had walked away from the incident when the glass bottle was thrown. The hearing concluded.

6. The Tribunal received a post hearing submission from the applicant’s representative that included a number of additional documents that the Tribunal has considered.

7. The post hearing submission dated 1 March 2019 notes that the applicant’s Subclass 457 visa was cancelled on the basis that the applicant may be a risk to the health safety or good order of the Australian community or a segment of the Australian community. The submission notes that the applicant had been charged with 2 offences on 12 August 2018 the first was use or threaten violence causing fear, and the second, assault occasioning actual bodily harm. The submission notes that:

   “In the first instance, we confirm that the New South Wales police agreed to amend facts to align with Mr Brown’s testimony, and claims of using ‘excessive self-defence’. Furthermore, the offence of use/threatening violence causing fear was withdrawn. Mr Brown pleaded guilty to assault occasioning actual bodily harm. Mr Brown was sentenced by his honour Magistrate Grogin to a 12 month community corrections order, with the condition that he accept supervision by community corrections for the term of the bond and not consume alcohol for 4 months. During sentencing, the court made a number of favourable remarks, namely:

   ·the objective seriousness was at the lower end of the scale

   ·the offence was not planned and was short in length

   ·Mr Brown was cooperative with police

   ·Mr Brown and his friends were provoked by the large group that threw glass at them, and when they engaged in the conflict, Mr Brown was lunged at by someone, causing him to respond recklessly (due to the fact that his head was down and he was throwing punches blindly), albeit in self-defence.

   ·He shows genuine remorse and contrition

   In addition to these favourable remarks, it is notable that Mr Brown was offered a 25% discount, which is somewhat unusual given that his plea was not entered at the first available opportunity”.

8. The submission states that since the events of 11 August 2018 the applicant had taken a number of positive steps towards his rehabilitation and notes “a key area of personal development and improvement was-as the Senior Member intuitively discerned-Mr Brown’s consumption of alcohol.” The submission notes that the applicant had engaged in a number of programs and a genuine attempt to rehabilitate himself. This included the completion of the Salvation Army’s positive lifestyle program, attendance at 6 to 7 Alcoholics Anonymous meetings, attendance at 4 sessions with a psychologist.

9. The submission notes that because of the applicant’s skill set and his trade qualifications that he is a valued employer working in a supervisory capacity on the Northconnex project.  The submission notes that the applicant in his role supervises and mentors Australian apprentices and is making a sound contribution to the Australian community through his skills and leadership. The submission further notes that the applicant continues to play for and involve himself in fundraising for his local football club at Waterloo. The submission also notes that the applicant’s employer intends to make an application on behalf of the applicant for Australian permanent residence.

10. In conclusion the submission notes that since the offence of August 2018 the applicant has not been a risk to any part of the Australian community and that the events of August 2018 were a matter of the applicant being in the wrong place at the wrong time and making a wrong decision. The submission asked the Tribunal to consider the dropping of one criminal offence, that New South Wales police has changed their position in relation to the agreed facts of this case and the court determination that the applicant’s actions both past and present did not deem him to be sentenced to a term of imprisonment.

11. Also provided were a number of character references that have been duly considered and the submission that the applicant made to the presiding Magistrate at Waverley Local Court dated 20 February 2019. That submission notes in part that:

    “I understand the charge that I am pleading guilty to and the seriousness of my behaviour. Looking back at the night in question, although I feared for my own safety and the safety of my friends, I wish I had not retaliated the way that I did. I should have kept my hands down and ran as far as I could to get help. Having been intoxicated and in the heat of the moment, I made the wrong decision and I reacted in the worst way possible, with violence. I feel awful for causing another person harm and I will live with this regret every day.

    … I am in a leadership position in my current role and I am in charge of a number of subcontractors. One of these individuals attacked me in early February which resulted in me having to be hospitalised and I received 35 stitches in my face and mouth. During the attack, I consciously chose not to retaliate or react and got away as quickly as possible to seek help. I believe the reason for this is a combination of this hard lesson I have learned, alongside the development I have seen in myself.

    Since this offence, I have completed the Salvation Army’s Positive Lifestyle Program, I have also attended around 6 to 7 Alcoholics Anonymous meetings, which I attended on a weekly or fortnightly basis on Friday evenings on my way home from work.

    In October 2018, I began attending psychological counselling at Assure Programs and have completed 4 sessions with a psychologist. In these sessions, I have learned training around reactions and underlying schema which are pre-set due to a person’s personality ie reacting in anger to a confrontational situation naturally and how to change this. I am incredibly proud of the progress I have made and I think I am a better person because of it.

    I have worked hard since I left school when I was 16 to get my qualifications as a drainer. My skills saw me get sponsorship in 2017 and I have worked with Rocktown Pty Ltd since then working on their Northconnex project. The last 6 months has been a sentence within myself. I am currently in the process of appealing the decision to cancel my visa through the Tribunal, which has had repercussions on my working rights, my de facto relationship with my partner, Amy as well as the future in Australia. In October 2018, my visa was suddenly cancelled, letting down my employer as I have left my team without a supervisor. I have now been temporarily granted my working visa back but the decision whether to revoke my visa permanently is still pending this matter being finished.

    Because of what happened, my life has fallen apart, I have lost everything that I worked for in the last 4 years due to my stupidity that night and if I had the chance to change it, I would. I would never ever mean to hurt or injure anyone and the knowledge that I have gives me deep regret. I stopped drinking alcohol as a result of this and plan to continue this into the future. This experience has been an incredible learning curve and I am glad I have been able to turn such a terrible event into a positive change for myself. I never want to repeat such behaviour again and I want to be a law-abiding citizen within the community”.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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(e)(i). 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?

13. A visa may be cancelled under s.116(1)(e)(i) 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.

14. 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.

15. In the case of Gong[2016]FCCA561 at 41 Judge Smith stated with regard to s.116(1)(e) that:

    “While it is true, as the applicant submits, that the word “risk” entails an element of futurity, the addition of the words “or may be” and “or might be” by the 2014 amendments undermines the balance of the applicant’s arguments. Simply put, the fact that sub-s.116(1)(e) is engaged where the Minister is satisfied that a visa holder’s presence “may be a risk” to certain matters means that there does not have to be, as the applicant suggests, any direct, solid or certain foundation before the power to cancel a visa can arise. In other words, it can arise on the possibility that some event occurred in the past. In this case, that possibility was supported by the laying of the charges. That is to say that that fact alone was not legally irrelevant to the question posed by sub-s.116(1)(e)”.

16. The Tribunal finds that the applicant has been convicted of the offence assault occasional actual bodily harm. The Tribunal finds that the threshold to ground a cancellation under s.116(1)(e)(i) is a low threshold and agrees with the sentiment of Judge Smith in Gong that for the ground for cancellation to arise there does not need to be “any direct, solid or certain foundation before the power to cancel a visa can arise…it can arise on the possibility that some event occurred in the past”.  In the case before the Tribunal this has been clearly grounded in the conviction against the applicant in February 2019.

17. 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 power to cancel the visa should be exercised.

    Consideration of discretion

18. 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’.

19. The Departmental guidelines pertaining to the exercise of discretion cover such matters as:

    ·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

    ·the extent of compliance with visa conditions

    ·degree of hardship that may be caused (financial, psychological, emotional or other hardship)

    ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

    ·past and present conduct of the visa holder towards the department

    ·if breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

    ·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

    ·whether there would be consequential cancellations under s.140

    ·whether any international obligations would be breached as a result of the cancellation

    ·any other relevant matters.

20. The evidence before the Tribunal indicates that the applicant has been in Australia as the holder of a Subclass 457 visa. That visa was granted to the applicant on 19 January 2017 and is valid until 19 January 2021. The evidence before the Tribunal indicates that the applicant is working as a Drainer for Civil and Tunnel Pty Ltd an Australian business that is heavily involved in infrastructure projects in New South Wales and is a contractor in the Northconnex project.  The evidence indicates that the applicant has worked his way up to a supervisory position and the applicant’s manager attended the review hearing to attest to the applicant’s skill set and ability to work in challenging conditions and to train and supervise fellow workers and apprentices. The applicant’s employer gave evidence to the Tribunal that because of the applicant’s work ethic and skill set that they intend to lodge an application for permanent residence on behalf of the applicant. The Tribunal gives this consideration weight in favour of the applicant.

21. The evidence before the Tribunal indicates that the applicant has been compliant with visa conditions since his arrival in Australia and the Tribunal gives this weight consideration in favour of the applicant.

22. The applicant has claimed that he will experience significant hardship if his visa is cancelled. The applicant stated that since he had been in Australia as the holder of a Subclass 457 visa that he had worked very hard for the Australian company that had sponsored him and that he believed that his skill set was a valuable asset to that business. The applicant stated that he has a de facto partner, Amy who holds a Subclass 457 visa in her own right and that if his visa was cancelled he would be separated from his partner. The applicant submitted to the Department and the Tribunal at review that he has spent a large part of his adult life in Australia since arriving in 2016 and had long-term plans to seek permanent residence in this country. The applicant gave evidence to the Tribunal at review that close family members had visited him in Australia and they were supportive of his desire to permanently reside in Australia.  The Tribunal gives this consideration some weight in favour of the applicant.

23. The evidence before the Tribunal indicates that the circumstances in which the ground for cancellation arose was that the applicant after consuming alcohol engaged in violent behaviour against an individual within the Australian community.  

24. The Tribunal notes that incident that grounded the current cancellation action by the Department pertained to charges of threaten violence cause fear and assault occasioning actual bodily harm.  These charges occurred soon after the completion of the 12 month good behaviour bond for the domestic violence offence. The Tribunal notes that a good behaviour bond is imposed by the criminal justice system to give an offender an opportunity to prove that they can behave in an appropriate way in the community without engaging in the criminal justice system. Indeed if a person breaches a good behaviour bond during the period in which the bond has been imposed, they are invariably brought back before the sentencing Magistrate who considers the imposition of a further sentence for breach of the bond. 

1. The evidence before the Tribunal indicates that the applicant had initially intended to plead not guilty to the charges of threaten violence cause fear and assault occasioning actual bodily harm on the grounds of self-defence. The matter was dealt with by the Waverley Local Court on 22 February 2019. The evidence before the Tribunal indicates that the police decided to drop the charge of threaten violence cause fear and only pursue the charge of assault occasioning actual bodily harm. The applicant ended up pleading to the one charge and the sentencing Magistrate factoring in the applicant’s criminal antecedents, character references and other evidence provided to him imposed a good behaviour bond for a period of 12 months.

2. The applicant in these circumstances could have been convicted to a term of imprisonment however the sentencing Magistrate decided not to impose a custodial sentence in the circumstances of this case. The Tribunal finds that the imposition of a 12 month good behaviour bond acts as a very strong incentive for the applicant to ensure that he does not engage with the criminal justice system in any way during the period of the good behaviour bond because if he does, as noted above, he will be brought back before the sentencing Magistrate for further sentence for breach of the bond. 

3. The evidence before the Tribunal indicates that the applicant has a previous conviction for a domestic violence offence for which he was sentenced to a 12 month good behaviour bond. The evidence before the Tribunal indicates that the incident giving rise to the charge of common assault domestic violence arose in a situation where alcohol appeared to play a predominant part. As a result of getting into a fight with his then partner which led to shouting and pushing and shoving, the police were called to their premises and the applicant was charged.

4. The applicant has stated in submissions to both the Tribunal and the Local Court that his adverse interaction with the criminal justice system has been a salient lesson to him and for the need for him to address problems with alcohol use and with his reactions.  Evidence before the Tribunal indicates that the applicant has been addressing his problems with alcohol since the Tribunal hearing in December 2018 and has also engaged with a psychologist to address his behaviour.  The applicant has undertaken to be of good behaviour in the community and not to engage in any contact that would bring him within the ambit of the criminal justice system.

5. The Tribunal gives this consideration significant weight in cancelling the applicant’s visa.

6. The evidence before the Tribunal indicates that the applicant has been cooperative with the Department in his dealings with them and the Tribunal gives this consideration weight in the applicant’s favour.

7. The evidence before the Tribunal indicates that there is no secondary visa applicant who would be the subject of a consequential visa cancellation as a result of the ongoing cancellation of the applicant’s visa.

8. The applicant has argued that the ongoing cancellation of his Subclass 457 visa would add to the penalties that have been incurred through the criminal justice system in New South Wales. The Tribunal notes that if the applicant’s visa remains cancelled the applicant could be detained and removed from Australia as he would no longer hold a valid visa. Further to this the applicant would be the subject of Section 48 of the Migration Act which would preclude him from applying for further visas whilst in Australia and that he could be the subject of Public Interest Criterion which would limit his ability to apply for further temporary visas for a specified time. The evidence indicates that the legal consequences to cancel the applicant’s visa are an unavoidable consequence of the cancellation and the Tribunal gives little weight to this consideration in the applicant’s favour.

9. There is no evidence before the Tribunal that indicates that Australia’s international obligations would be breached as a result of the ongoing cancellation of the applicant’s visa. The Tribunal accordingly gives no weight to this consideration in the applicant’s favour.

10. With regard to any other relevant matters the applicant’s representatives have submitted that it is essential for a decision-maker to take all circumstances into consideration including personal, professional and other considerations and that these considerations must be balanced against the risk to the Australian community.

11. The applicant’s representative notes that the effect of cancellation of the applicant’s visa would be detrimental to the applicant and his future career and residency aspirations and would be detrimental to his partner who holds a Subclass 457 visa in her own right and to the applicant’s sponsoring employer, and to the Australian economy due to the skill set that the applicant brings to his position as a 457 visa holder.

12. The Tribunal has regard to each of these factors cumulatively and finds as follows.  The applicant prior to the incident of February 2017 did not have any criminal antecedents. The evidence before the Tribunal indicates that at this time the applicant was charged with common assault in a domestic setting with his former partner. As has been noted this offence occurred when neighbours alerted police to a loud argument in the applicant and his then partner’s apartment, as a result police attended and the applicant was charged. The applicant was convicted of the offence at Burwood Local Court and placed on a 12 month good behaviour bond which he complied with. As has been noted the circumstances leading to this offence involved the consumption of alcohol. The evidence before the Tribunal indicates that in August 2018 the applicant was charged with the offences the grounded the cancellation of his Subclass 457 visa. The Tribunal notes that alcohol was also a factor with regard to these criminal charges which occurred in a social setting when the applicant and his friends had a bottled thrown at them.  The applicant reacted to this in such a way that he was charged with criminal offences.  The applicant in retrospect has stated that he should have run away from any confrontation and called the police.  The applicant has expressed contrition for his violence towards the victim.  The evidence before the Tribunal indicates that one of the criminal charges was dropped in February 2019 and the applicant was convicted of the one charge of assault occasioning actual bodily harm for which the Magistrate imposed a further 12 month good behaviour bond.

13. The evidence before the Tribunal indicates that the applicant has taken proactive steps to address his behaviour particularly his behaviour around the use of alcohol and addressing his impulsivity. The evidence indicates that the applicant is engaged with a psychologist and has attended Alcoholics Anonymous meetings and the applicant has given evidence to the Tribunal that he has abstained from alcohol and intends to abstain from alcohol in the future.

14. The evidence indicates that the applicant has qualifications in the United Kingdom as a drainer, and that he has substantial skills that are applicable to the many infrastructure projects currently being undertaken in New South Wales. The applicant has worked hard for his sponsoring 457 employer and he has been promoted to the role of supervisor and is involved in the supervision and mentoring of fellow workers and apprentices involved in infrastructure projects in New South Wales. The Tribunal notes that the applicant is in a de facto relationship with a citizen of the United Kingdom who holds a Subclass 457 visa in her own right, and that the cancellation of the applicant’s visa will lead to the forced separation of the couple.

15. The Tribunal has given due consideration to each of these factors both individually and cumulatively and decided having regard to all of these circumstances that the visa should not be cancelled.

    DECISION

16. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    John Cipolla
    Senior Member