Burton (Migration) - [2018] AATA 4220

Burton (Migration) [2018] AATA 4220 (27 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Neihana Paora Burton
CASE NUMBER:  1803404
HOME AFFAIRS REFERENCE:               BCC2017/4557385
MEMBERS:Jan Redfern (Presiding)

Michael Ison
DATE:27 August 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.
Statement made on 27 August 2018 at 2:58 pm.

CATCHWORDS
MIGRATION – Class TY Subclass 444 Special Category (Temporary) visa – cancellation under s.116(1)(e) of the Migration Act 1958 – whether applicant is or may be, or would or might be, a risk to the health and/or to the safety of the Australian community or a segment of the Australian community – assessment of risk in circumstances where the applicant has been committed on 12 charges, entered a plea of not guilty and granted bail – consideration of the operation of, and interaction between, various cancellation provisions in the Migration Act 1958 – ground for cancellation established – whether the power to cancel the visa should be exercised – consideration of the degree of hardship to the applicant and his family, the legal consequences of cancellation and the circumstances in which the ground for cancellation arose – decision set aside and substituted
PRACTICE AND PROCEDURE – Administrative Appeals Tribunal – where the Tribunal is constituted for the purposes of the proceeding by two members – disagreement between the members settled according to the opinion of the Presiding Member
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), ss 24Z(2)(b), 42
Bail Act 1977 (Vic), s 4E
Crimes Act 1958 (Vic), ss 27, 195H, 321M, 321P
Crimes Legislation Amendment (Public Order) Act 2017 (Vic) Criminal Procedure Act 2009 (Vic) ss 59, 97
Migration Act 1958 (Cth),ss 5(1), 5(d), 32, 82, 109, 116, 117(2),118, 140,148, 159, 198, 200,
371(3), 433(3), 501, 501CA
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Reform Act 1992 (Cth)
Migration Regulations 1994 (Cth), rr 1.03, 5.15A; Sch 2, cll 444.2, 444.511, 444.6,
600.213(1); Sch 4, PIC 4013
Social Security Act 1991 (Cth), s 7
CASES
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
Cheryala v Minister for Immigration and Border Protection [2018] FCAFC 43 CIC Insurance Limited v Bankstown Football Club Ltd (1997) 187 CLR 384 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Gong v Minister for Immigration and Border Protection [2016] FCCA 561
IRG Technical Services Pty Limited v Deputy Commissioner of Taxation (2007) 165 FCR 57 Kapene Te Amo (Migration) [2018] AATA 2214
Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40 Minister for Immigration and Ethnic Affairs v Teoh (1994) 183 CLR 273 MZAJA v Minister for Immigration and Anor [2017] FCCA 448
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Sachin v Minister for Immigration & Anor [2016] FCCA 2815
Shi v Migration Agents Registration Authority (2008) [2008] HCA 31
Singh (Migration) [2017] AATA 850
W157/00A v Minister for Immigration and Multicultural Affairs (2001) 190 ALR 55
SECONDARY MATERIALS
Explanatory Memorandum, Migration Amendment (Character and General visa Cancellation) Bill 2014
Explanatory Memorandum, Migration Reform Bill 1992 and Migration (Delayed Visa Applications) Tax Bill 1992
Migration Amendment (Character and General Visa Cancellation) Bill 2014, Second Reading Speech, Hansard, House of Representatives, 24 September 2014
Procedures Advice Manual – PAM 3 ‘Act-based Visa Instructions – Criminal Justice Visas’ Procedures Advice Manual - PAM3 ‘General visa cancellation powers - Australia’s international obligations - Non-refoulement obligations’
Procedures Advice Manual – PAM3 ‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s 140)’
Procedures Advice Manual – PAM3 ‘s 501 - The character test, visa refusal and visa cancellation’
STATEMENT OF DECISION AND REASONS
INTRODUCTION

This is an application for review of a decision dated 8 February 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Special Category (Temporary)(Class TY)(Subclass 444) visa.
The applicant, Mr Neihana Paora Burton, is a 24 year old New Zealand citizen. He and his mother, Ms Justina Burton, migrated to Australia in 2001 when he was seven years old following his mother's marriage to Mr David Burton, who is an Australian citizen. He has spent his formative years in Australia and has two siblings who were both born in Australia as part of that relationship and are Australian citizens. The applicant has resided in Australia since 2001 but has made frequent trips back to New Zealand with his mother to visit relatives.
Since arriving in Australia the applicant has been granted several Special Category (Subclass 444) visas. A Special Category visa is a temporary visa available to New Zealand citizens permitting them to remain in Australia. The visa is for an indefinite period and expires when the visa holder leaves Australia. It is granted upon entry to Australia. The last time the applicant re-entered Australia and was granted a Special Category (Subclass 444) visa was on 22 October 2017.
The submissions by the applicant’s representative raise important issues about the operation of, and interaction between, various cancellation provisions under the Act and how they apply to New Zealand citizens who have been charged, but not convicted, with serious criminal offences. These issues are particularly difficult where those non-citizens have been long standing residents of Australia.
There have been an increasing number of these types of applications in recent years. For this reason, the matter was constituted to me, together with a Senior Member, to provide detailed consideration of the difficult issues raised for the assistance and guidance of both members and the Department.
Senior Member Ison and I do not agree with the ultimate outcome in this case. As the Presiding Member, my opinion is taken to settle the disagreement and my decision is the operative decision[1]. These matters, which are not material to the critical issues that require determination on this review, are explained in more detail later in my reasons.
[1] Administrative Appeals Tribunal Act 1975 (Cth), ss.42(2) and 24Z(2)(b).
BACKGROUND
The applicant has been in immigration detention since the cancellation of his Special Category (Subclass 444) visa on 8 February 2018. He has been charged with 12 criminal offences, a number of which arise from the same set of circumstances. According to the applicant’s representative, the applicant’s criminal trial has been listed for hearing for 20 days commencing 27 May 2019.
The applicant does not have any criminal convictions but in 2015 he was involved in an incident which resulted in an adjourned undertaking to be of good behaviour for 12 months and $500 fine being imposed by the Magistrates’ Court of Victoria on 5 October 2016. In short, the applicant pleaded guilty to a single charge for the indictable then common law offence of affray[2]. Other charges laid arising out of the incident were not pursued. No conviction was recorded and at the end of the adjourned period, the proceedings were discharged. Less than two months after those proceedings were discharged, on 23 November 2017, the applicant was charged with serious indictable criminal offences arising from incidents said to have taken place in October and November 2017. The applicant was released on bail by the Magistrates’ Court on the day of his arrest.
[2] The common law offence of affray was abolished and replaced by the statutory offence of affray under s.195H of the Crimes Act 1958 (Vic) by the Crimes Legislation Amendment (Public Order) Act 2017 (Vic) with effect from 13 September 2017.
The delegate cancelled the applicant’s visa under s.116(1)(e) of the Migration Act 1958 (the Act) on the basis that the applicant’s continued presence in Australia ‘poses, or could pose, an unacceptable risk to the health and/or safety of the Australian community or a segment of the Australian community[3]. The delegate relied on the pending criminal charges and the previous charge of affray in finding that the ground for cancellation was established. In considering the exercise of discretion, the delegate accepted that the applicant may face hardship but did ‘not foresee any major issues in him adjusting to life in New Zealand’ having regard to the existence of support networks there. The delegate noted the applicant would be limited in the visas that he could apply for if his visa was cancelled and that he may not be able to reapply for a visa for three years. In weighing all of the factors, the delegate concluded that the seriousness of the charges, including the previous charge which had been discharged, outweighed the other factors. The delegate therefore decided to cancel the visa.
[3] Tribunal file, folio 3.
The applicant lodged a review of this decision with this Tribunal and applied to the Department for a Bridging E (Subclass 050) visa pending his review. This application was refused. The applicant sought a review of the bridging visa refusal and on 27 February 2018, the Tribunal, differently constituted, remitted the matter for reconsideration with the direction that the applicant met the criteria for the bridging visa. The applicant, however, was not granted a bridging visa and on 23 March 2018 he was notified of the intention to refuse his bridging visa under s.501(1) of the Act on the basis of concerns about his character. He withdrew his application for a Bridging E (Subclass 050) visa.
On 18 March 2018, the Director of Public Prosecutions for the State of Victoria issued a Criminal Justice Certificate under s.148 of the Act certifying that the stay of the removal or deportation of the applicant was required for the administration of criminal justice in Victoria. Following the issue of such a certificate, the Minister may in his or her absolute discretion issue a Criminal Justice visa under s.159 of the Act, but did not do so in this case.[4] The applicant will therefore remain in detention pending his criminal trial, unless he is either granted another visa or the cancellation of his Special Category (Subclass 444) visa is set aside by this Tribunal.
[4] According to the Procedures Advice Manual 3 – PAM3 ‘Act-based Visa Instructions – Criminal Justice Visas’ (PAM3) a person cannot apply directly for a Criminal Justice Visa (CJV), rather they may request that a delegate of the Minister consider the ministerial power to grant a CJV once a Criminal Justice Certificate has been issued by an appropriate law enforcement agency. Notably, the power to grant a CJV is discretionary.
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 to give evidence and present arguments. He was represented by his lawyer who is a registered migration agent. The Tribunal also received oral evidence from Ms Justina Burton, Mr David Burton, his counsellor Mr Lehi Cerna, and youth worker, Mr Paora Te Pak. Prior to the hearing, the Tribunal conducted a directions hearing to discuss the issues in dispute and the preparatory matters required for the conduct of the hearing. The applicant’s lawyers were given access to documents from the Department’s file and the Tribunal wrote to the applicant inviting him to respond to certain adverse information. The Tribunal received written submissions and documents in relation to the contentious issues identified prior to the hearing. Following the hearing, the applicant’s representative provided updated information in respect of the criminal charges and the outcome of the committal hearing.
For the following reasons, I have concluded that the decision to cancel the applicant’s visa should be set aside.
RELEVANT LAW AND ISSUES FOR CONSIDERATION
Non-citizens from New Zealand may obtain permission to stay in Australia under a Special Category (Subclass 444) visa. The criteria for a special category visa are set out in s.32 of the Act and r.5.15A of the Migration Regulations 1994 (the Regulations)[5]. The Special Category visa is a temporary visa permitting the holder to remain in Australia while the holder is a New Zealand citizen: cl.444.511 of Schedule 2 to the Regulations. This visa was introduced by the Migration Reform Act 1992 (Cth), which came into effect on 1 September 1994.
[5] Clause 444.2 of Schedule 2 to the Regulations provides that the only criteria for a special category visa are those set out in s.32 of the Act and reg.5.15A of the Regulations. For instance, the public interest criteria set out in Schedule 4 to the Regulations do not apply to Special Category (Subclass 444) visas.
The visa is for an indefinite period but ceases to have effect if it is cancelled or if the visa holder leaves Australia: ss.82(1) and 82(8) of the Act.
Section 32 sets out the criteria for a special category visa and relevantly provides that the visa should be granted if the Minister is satisfied the applicant is a non-citizen, who is a New Zealand citizen and holds a New Zealand passport and is neither a behaviour nor health concern non-citizen.
Special Category visas may be cancelled in the circumstances set out in ss.109, 116 and 501 of the Act. Section 109 provides for cancellation where incorrect information is provided by an applicant, s.116(1) sets out the general grounds for cancellation of temporary visas and s.501 provides for cancellation on character grounds. Section 501 covers both temporary and permanent visas.
The applicant’s representative made submissions about whether it was appropriate for the delegate, and therefore the Tribunal, to proceed under s.116(1)(e) where criminal misconduct has not yet been established. Despite the fact that a Special Category visa is a temporary visa, it is for an indefinite period and operates like a permanent visa. It is submitted that the holders of permanent visas are not exposed to the risk of cancellation under s.116 and decision-makers must proceed under s.501 of the Act. Broadly speaking, the power under s.501 requires a more serious level of offending and a higher level of satisfaction about risk or the existence of misconduct. Accordingly, it is submitted the Tribunal should not be satisfied cancellation is warranted where criminal charges are unproven and the correct or preferable decision is for the cancellation to be set aside. It is also submitted that if the applicant is convicted he is likely to be sentenced to more than 12 months imprisonment and his visa will be liable to be cancelled under s.501 of the Act in any event.
There was no submission made that the Tribunal should adjourn the review pending the finalisation of the criminal proceedings. This is understandable given the criminal proceedings are unlikely to be resolved for some time. It is submitted the applicant will be significantly disadvantaged by the cancellation even if he is subsequently acquitted of the criminal charges. This is because the criteria relating to the grant of Special Category visas are said to operate in such a way that it is unlikely the applicant will be able to return to Australia in the foreseeable future, regardless of the outcome of his criminal trial.
In essence, the applicant’s representatives submit that even though there is power to cancel a Special Category visa under s.116(1)(e) where there are unproven criminal charges, in circumstances where a New Zealand citizen has resided in Australia for many years and has significant links with Australia, there is or should be a ‘higher threshold for cancellation’. The cancellation power under s.501 is available where there is proven criminal misconduct and should be the preferred source of power in a case such as this.
As noted in the decision of Kapene Te Amo (Migration) [2018] AATA 2214 there are two regimes under the Act which give the Minister power to cancel a visa where there is proven or alleged criminal offences or where there are character concerns.
Having regard to the facts of this case and the submissions made by the applicant’s lawyers, it is relevant to briefly describe the scope of the relevant cancellation provisions under ss.116(1)(e) and 501 to identify the key differences.
The cancellation decision which is the subject of the review was made under s.116(1)(e) of the Act. Subsection116(1)(e) provides that the Minister may cancel a visa if satisfied that:
(e)the presence of its holder in Australia is or may be, or would or might be, a risk to:
(i)the health, safety or good order of the Australian community or a segment of the Australian community; or
(ii)the health or safety of an individual or individuals.
This provision may be relied on by the Minister to cancel a temporary visa (such as a Special Category visa) where, for instance, there are pending criminal charges before the Courts or where the visa holder is convicted of offences which do not fall within the provisions of s.501 of the Act, as outlined below. The Department has issued guidance to decision-makers about the exercise of the discretion to cancel in Procedures Advice Manual 3 – PAM 3 ‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s 140)’. The Procedures Advice Manual 3 is known as ‘PAM3’ and provides guidance to decision-makers in respect of the interpretation and application of the Act, the Regulations, Ministerial Directions and legislative instruments under the Act. A permanent visa cannot be cancelled under s.116(1) of the Act: see s.117(2) of the Act.
In contrast, the Minister has discretion to cancel a temporary or permanent visa under s.501(2) of the Act if the Minister reasonably suspects the person does not pass the ‘character test’ and the visa holder does not satisfy the Minister otherwise. A person does not pass the ‘character test’ if they fall within s.501(6) of the Act. Subsection 501(6) relevantly provides:
Character test
(6)   For the purposes of this section, a person does not pass the character test if:
(a)   the person has a substantial criminal record (as defined by subsection (7)); or
…
(b)   the Minister reasonably suspects:
(i)   that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and
(ii) that the group, organisation or person has been or is involved in criminal conduct; or
…
(c)   having regard to either or both of the following:
(i)   the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character; or
(d)   in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i)   engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that community; or
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or
…
Otherwise, the person passes the character test.
A visa holder will have a ‘substantial criminal record’ if he or she has been convicted of one or more crimes and sentenced to a term of imprisonment of 12 months or more, or to two or more terms where the total is 12 months or more: s.501(7) of the Act.
Subsection 501(3A) provides that the Minister must cancel a visa if the visa holder has a ‘substantial criminal record’ or has committed a sexually based offence involving a child. Notwithstanding this, there is a process where the former visa holder may apply for the cancellation to be revoked: s.501CA of the Act.

The cancellation power under s.116(1)(e) is enlivened if the Minister is satisfied the visa holder 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. It is also relevant to note that there are different review processes and consequences, depending on which cancellation power is used[6].
[6] Refer Kapene Te Amo (Migration) [2018] AATA 2214 at [13]-[19].
The existence of the two cancellation regimes on ‘character’ grounds is acknowledged in the Department guidelines in PAM3 on s 501 – The character test, visa refusal and visa cancellation, which provide as follows at [3.2.4]:
When determining whether a case should be referred for cancellation under s501, consideration should be given as to whether any of the other general cancellation powers apply, as described in: PAM3 – Visa cancellation − General visa cancellation powers (s109, s116, s128 and s140).If more than one cancellation power applies in a particular case, the appropriate cancellation power can depend on the type of visa held and the whereabouts of the visa holder.
Section 118 provides that powers to cancel a visa under various provisions of the Act, relevantly ss.116 and 501, are not limited or otherwise affected, by each other.
Unlike s.501(3A), where the Minister must cancel a visa if the visa holder has a substantial criminal record, there is discretion whether to cancel visa under s.116(1)(e) even if the Minister is satisfied the visa holder is or may be a risk to the health, safety or good order of the Australian community or a segment of the Australian community. This is significant and demonstrates Parliament’s intention that the power to cancel, if satisfied the ground for cancellation exists, is not absolute or mandatory and requires the Minister, and the delegate or Tribunal, standing in the shoes of the delegate, to exercise the discretion having regard to relevant considerations. The discretion is broad but is informed by the subject-matter, scope and purpose of the Act[7]. Relevantly, the Department has helpfully provided guidance to decision-makers about the factors that may be relevant to the exercise of discretion in PAM3–‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s 140)’.
[7] Sachin v Minister for Immigration & Anor [2016] FCCA 2815 at [34] following Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40.
In the present case, the applicant has been committed on 12 criminal charges but has not been convicted. The charges are unproven but their existence, together with the charge of affray, may be sufficient to establish the ground for cancellation under s.116(1)(e). If the ground is made out, there is discretion to cancel. The applicant’s representatives submit that his circumstances, as a New Zealander who ordinarily resides in Australia and has done so for many years from a young age, are significant. This is said to be like a permanent visa and, having regard to the circumstances of the applicant’s case, this should be taken into account when assessing whether the power to cancel is established. If the Tribunal finds the ground to cancel is established these matters are relevant to the exercise of discretion and are said to weigh heavily against cancellation and favour the cancellation being set aside to permit s.501 to be engaged if appropriate and warranted.
Having regard to the submissions made by the applicant’s representatives, the issues for consideration are:
(1)Whether the ground for cancellation under s.116(1)(e) of the Act exists and whether there is a higher threshold to establish the ground in the circumstances of this case?
(2)If the ground is established, how should the discretion be exercised? In particular, is it relevant that the applicant’s visa is a Special Category (Subclass 444) visa, he has been a long term Australian resident and he has not yet been convicted of any criminal offences?
CONSIDERATION OF CLAIMS AND EVIDENCE
As already noted, the Minister may cancel a visa under s.116 if he or she is satisfied that certain grounds specified in that provision are made out. 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 will include matters of government policy.
The questions for determination are, therefore, does the ground for cancellation exist and, if it does how should the discretion be exercised?
Does the ground for cancellation exist?
The applicant’s visa was cancelled under s.116(1)(e)(i) of the Act on the basis that his presence in Australia is or may be, or would or might be, a risk to the health and/or to the safety of the Australian community or a segment of the Australian community.
The delegate concluded that it appeared the applicant ‘has a willingness and propensity towards serious criminal activity involving violence’ and ‘due to the serious nature of his charges’, the applicant’s continued presence in Australia ‘poses, or could pose, an unacceptable risk to the health and/or safety of the Australian community or a segment of the Australian community’[8].
[8] Tribunal file, folio 3.
The Tribunal is not bound by the findings of the delegate[9] and must consider this matter afresh based on the material and submissions before us. However I note, for completeness, that the conclusions drawn by the delegate are erroneous in two respects. First, the delegate referred to the risk as ‘unacceptable’. That is not the test under s.116(1)(e) of the Act and I therefore do not consider that it is necessary to establish there is an unacceptable risk to enliven the ground for cancellation under s.116(1)(e) of the Act.
[9] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, also referred to in Shi v Migration Agents Registration Authority [2008] HCA 31 at [98] per Hayne and Heydon JJ.
Secondly, the finding that the applicant’s presence poses or could pose a risk to ‘the health of the Australian community or a segment of the Australian community’ is not borne out by evidence, the delegate’s findings or the guidance provided to decision-makers under PAM3 – ‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s 140)'. The commentary in PAM3 about the risk to the health of the Australian community or a segment of the Australian community suggests that this provision is aimed at public health risks and infectious diseases. For instance, it is noted in PAM3 that advice should be sought from the Health Policy area about whether health conditions other than Tuberculosis would constitute a risk to the Australian community. A further example of where cancellation may be considered is where a person advocates against Australia’s health interests by actively discouraging parents to participate in the Government’s immunisation program. The examples provided in PAM3 and the ordinary meaning of the words indicate that a risk to health is not intended to cover the situation where the Australian community or a segment of the community may be at risk of harm through unlawful behaviour.
There were no submissions made about these matters either before or during the hearing, nor was there evidence to support such a finding. I therefore find, for completeness given the finding of the delegate, that I am not satisfied Mr Burton’s presence is or may be a risk to the health of the Australian community or a segment of the Australian community. I also note that it is clear from the material provided and the submissions made, that the critical issue in dispute was whether the applicant is or may be a risk to ‘the safety of the Australian community or a segment of the Australian community’. Accordingly, I have proceeded on this basis.
Submissions of the applicant’s representatives
The applicant’s representatives submit that the Tribunal should not be satisfied that the ground for cancellation is established. The applicant has not been found guilty or otherwise convicted of criminal offences involving violence. He has pleaded not guilty to the criminal charges and was granted bail pending the consideration of those charges by the criminal court. The applicant has resided in Australia for 17 years without incident which indicates that his continued presence in Australia does not pose a risk to the safety of the Australian community.
There is evidence from the applicant that he has not been involved in criminal activities and the 2016 charges arose from his intervention in an altercation which was intended to stop further violence. It is submitted that even though this led to the charge of affray, the fact that the prosecution recommended a diversion order supports the applicant’s version of events.
There is also evidence that the applicant has contributed to the safety of the Australian community through his work in establishing the school based program called ‘Multipride’. This program was initiated to reduce racial violence and promote harmony within the school community and there is evidence this program has been adopted in a number of other Victorian schools. Evidence that the program has been adopted elsewhere suggests the program is effective and has been successful in promoting safety and harmony. Both these matters would support a finding by the Tribunal that the applicant’s presence does not pose a risk but rather is beneficial. While it is accepted the criminal charges which have been laid against the applicant are serious, the applicant’s representatives submits it would be ‘an unsafe use of administrative power to use the cancellation power conferred by s.116(1)(e) to initiate the onshore cancellation of a Subclass 444 visa held by non-citizen who has been ordinarily resident in Australia for more than a decade’[10]. It is for the criminal courts to determine guilt and the Tribunal should ‘exercise extreme caution before undermining the rights of persons ordinarily resident in Australia for decades to contest unproven charges at trial’[11].
[10] See the Applicant’s Response to the Notice of Intention to Consider Cancellation (NOICC) of a Visa dated 24 January 2018 at Tribunal file, folio 51 at [40],
[11] Ibid at [43].
These submissions were advanced in written submissions received prior to the hearing in response to particular issues raised by the Tribunal at a prehearing directions hearing. In summary, the applicant’s representatives submit as follows:
(1)It is relevant to consider Parliament’s intention in conferring on decision-makers the power to cancel under s 116(1)(e) of the Act. While a Special Category visa is a temporary visa, it is of indefinite duration and is therefore akin to a permanent visa.
(2)The Tribunal should have regard to the fact that holders of permanent visas are not exposed to the risk of cancellation under s.116(1)(e) of the Act. When legislation was introduced into Parliament in September 2014 it was acknowledged in the Minister’s second reading speech that cancellation of a permanent visa attracts a higher threshold because the consequences are so significant[12]. The circumstances of a New Zealand citizen who has been a long-standing Australian resident is analogous to the circumstances of a permanent visa holder. As such, there is a higher threshold for cancellation in the circumstances of this case.
(3)In assessing the risk to the Australian community, the Tribunal should take into account the prospect that the applicant is likely to face a further cancellation process under s.501 if he is convicted. Given the seriousness of the outstanding charges, the applicant is likely to be sentenced to a term of imprisonment exceeding 12 months if he is convicted and his visa would therefore be mandatorily cancelled under s.501(3A) of the Act.
(4)If the cancellation of the applicant’s visa is set aside the potential risk to the Australian community, being the risk occasioned by the possibility that the facts alleged by the prosecution actually happened, would be limited in time and otherwise mitigated by the applicant’s strict bail conditions.
(5)As such, regardless of the outcome of the applicant’s criminal proceedings, his continued presence in Australia does not pose a risk to the health, safety or good order of the Australian community and the Tribunal should so find.
Analysis and findings
[12] See Migration Amendment (Character and General Visa Cancellation) Bill 2014, Second Reading Speech, Hansard, House of Representatives, 24 September 2014 at p.10325.
I do not accept the submission that the threshold to establish satisfaction about risk is higher or more onerous in the case of Special Category visas than for other temporary visas. The process of construing s.116(1)(e) begins with the statutory text but the text must be considered in its context[13]. Objective discernment of the context may be made through extrinsic material, the legislative history and the purpose and policy of the legislation[14]. However, extrinsic material ‘cannot be relied upon to displace the clear meaning of the text’[15]. Subsection 116(1)(e) is clear in its terms. If Parliament had intended to apply a higher standard or to exempt Special Category visas from cancellation under s.116(1)(e), it could easily have done so. There is nothing in the Act, the Explanatory Memorandum or the Second Reading Speech to evince such an intention.
[13] See, in particular, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 and Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28.
[14] CIC Insurance Limited v Bankstown Football Club Ltd (1997) 187 CLR 384 and IRG Technical Services Pty Limited v Deputy Commissioner of Taxation (2007) 165 FCR 57 at [21].
[15] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 at [47].
Relevantly, when Special Category visas were introduced, the Explanatory Memorandum noted that:
The Reform Bill therefore provides for the creation of a 'special category visa' which may be electronically issued on arrival in Australia. This will be applicable to persons who were previously exempt non-citizens, including New Zealand citizens. As far as New Zealand citizens are concerned, the new arrangements' will preserve the traditional travel facilitation provided under the Trans-Tasman Travel Arrangements. No prior authorisation for travel will be required and the electronic record of entry will be the visa. The benefit of this change is that exempt non-citizens will be brought within the simplified single visa system. They may also be able to be issued with a visa label prior to travel, where this would facilitate their travel arrangements. Finally, and most importantly, the holders of special category visas will be subject to the same controls as all other non-citizens in Australia and their obligations will be clearly set out in the Principal Act[16]. [Emphasis added]
[16] Explanatory Memorandum, Migration Reform Bill 1992 and Migration (Delayed Visa Applications) Tax Bill 1992, p.3 at [13].
I accept that the nature of the visa and the impact of cancellation may be significant where a Special Category visa is cancelled. However, this is an issue that can and should be considered in the exercise of the discretion, not as part of the enquiry as to whether the ground for cancellation exists.
The question of whether the presence of a visa holder is or may be a risk to the safety of the Australian community or a segment of the Australian community is a question of fact. The task of the Tribunal in respect of s.116(1)(e) is to assess the risk to the community based on all of the information available to the Tribunal: MZAJA v Minister for Immigration and Anor [2017] FCCA 448 at [15]. This information may include the existence of charges, the nature of those charges, whether the visa holder has pleaded guilty to those charges or whether the visa holder has been committed for trial, whether the visa holder has been granted bail and, if so, the basis of any conditions imposed and, finally, the personal circumstances of the applicant and how those circumstances may impact on any risks.
In assessing whether the ground is established, the Tribunal must have regard to the information and evidence available at the time of the review decision, including the circumstances of the applicant prevailing at that time: refer Shi v Migration Agents Registration Authority [2008] HCA 31.
Having regard to the provisions of the Act, the relevant authorities and the guidance provided in PAM3 –‘ General visa cancellation powers (s 109, s 116, s 128, s 134B & s 140)’, it is convenient to summarise the key principles in assessing this question as follows:
(1)There is no definition of 'risk' in the Act or Regulations and as such the ordinary meaning applies, namely the chance of injury, loss or hazard: refer generally, the Macquarie Dictionary, revised 3rd edition, 2001.
(2)Subsection 116(1)(e) speaks of a 'risk' that the presence of a visa holder 'is or may be' or, alternatively, 'would or might be' to the safety of the Australian community, a segment of the Australian community or an individual or individuals. The first limb ('is or may be') is addressed to circumstances where the applicant is present in Australia and the second limb ('would or might be') is addressed to the circumstances where the applicant is outside of Australia: refer Gong v Minister for Immigration and Border Protection [2016] FCCA 561 at [41].
(3)The expression ‘safety’ has an ordinary meaning which includes ‘freedom from injury or danger’. The relevant risks from which the Australian community, or a segment of the community, are to be protected therefore include ‘injury, danger and other forms of harm (such as physical harm)’[17].
[17] Procedures Advice Manual – PAM3 ‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s 140’' at [72].
(4)Where a visa holder has been convicted of serious violent criminal conduct, particularly if this is repeated, this may establish that there is or may be a risk to the safety of the Australian community or a segment of the Australian community under s 116(1)(e)(i). The safety of the Australian community or a segment of the Australian community speaks of a broad concept which connotes a level of repeated or serious violence that reaches beyond localised or individualised acts of violence. In contrast, s 116(1)(e)(ii) is directed to the risk to the safety of an individual or individuals and contemplates targeted violence, such as domestic violence.
(5)Subsection 116(1)(e) was amended in 2014 by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) to introduce the concept of 'may be' or 'might be' and it is self-evident from the plain English meaning of these words that the threshold to establish the ground for cancellation was lowered as a result of the amendment: refer to the Explanatory Memorandum to the Migration Amendment (Character and General visa Cancellation) Bill 2014, p.24 and Gong v MIBP at [40]. As such, it is also possible that there may be a risk to safety if a visa holder is charged, but not convicted, of serious violent criminal conduct. This is because there is the possibility that the facts forming the basis for the charges may be true.
(6)When charges are laid by the Police, it can be inferred the Police had some basis for laying the charges but it cannot be concluded, simply on the basis of the charges, that the charges are reasonable: refer Gong v MIBP at [54] and [55]. As noted in PAM3 ‘unlike a conviction, a charge cannot be equated with guilt’. I agree with this commentary.
(7)The concept of 'risk' has an element of futurity and in considering the question of whether a visa holder 'may be’ a risk within the meaning of s.116(1)(e), it is relevant to consider past conduct. This includes conduct which is the subject of criminal convictions and may include alleged conduct which is the subject of unproven criminal charges: refer Gong v MIBP at [41]. It may also include probative and credible evidence of conduct or activity that is not the subject of convictions or charges but which nonetheless raises concerns about whether a visa holder may harm members of the Australian community or a segment of the Australian community.
(8)The role of the Tribunal in assessing the question of risk for the purposes of s.116(1)(e) is challenging where there are unproven allegations of criminal misconduct before the Court. This is particularly so when those charges are very serious in nature. The questioning of an applicant, particularly if they are unrepresented, must be approached with considerable caution. Failure to warn an applicant about the privilege against self-incrimination may deprive an applicant of an important common-law privilege, which has been recognised in s.371(3) of the Act[18].
(9)This makes it difficult for the Tribunal to test the strength of the charges or to engage in a meaningful way with any evidence provided about the prosecution. The Tribunal cannot undertake a meaningful assessment of the prospects or strength of the charges in the absence of, for instance, undertaking its own assessment of the evidence or having the benefit of the results of a concluded committal process were the Court finds there is a ‘prima facie’ case to answer on the basis of the evidence presented[19]. To have regard to evidence contained in a criminal brief or Charge Sheets without giving the applicant the opportunity to respond would breach the rules of procedural fairness. On the other hand, raising contentious issues after giving the applicant the appropriate warning is likely to elicit a less than meaningful response and it would be unreasonable in the circumstances to draw a negative inference from such a response.
(10)As observed by Judge Smith in Gong v MIBP at [45], there is no requirement in s.116(1)(e) that there be a ‘determination, one way or the other, of the guilt of the visa holder and there is no requirement that the visa holder be compelled to give any evidence’[20]. Indeed, this should be avoided and it is not the role of the Tribunal to conduct a quasi-criminal hearing to form a view about the strength of the prosecution case prior to trial. This is not only unfair, because of the potential exposure of the visa holder to self-incrimination, but is unwise. Tribunal members generally do not have the skills or experience to embark on such an exercise. Despite this, and as already noted, the laying of charges by Police may support a finding that there is a possibility the events which are the subject of the charges occurred.
(11)The more serious the charges, the more weight that should be given to the existence of those charges, even though they are unproven, when assessing whether there may be a risk to the community. It is notoriously difficult to assess future risk, even if charges are proven[21]. However, where the consequences of the risk, if ultimately adverse, are likely to be serious, it may be appropriate to give the charges significant weight. In contrast, if charges are not serious, it may be appropriate to give unproven charges less weight in assessing risk.
(12)Notwithstanding this, evidence of charges will be but one of the matters that should be taken into account in making the assessment of whether there may be a risk to the community. All the available information must be considered, including, for instance, whether the visa holder is on bail. The fact that a Court, after considering the available evidence, refuses bail would carry considerable weight in assessing risk, although there may be a question about whether there is or may be a risk to the Australian community when the visa holder is incarcerated. If a Court or bail authority grants bail but imposes strict conditions, this may also carry considerable weight on the basis that the Court or bail authority has assessed the risk as sufficient to warrant conditions. On the other hand, the fact that bail is granted without condition would not, of itself, support a finding that applicant is not or may not be a risk because the test for risk is generally at a higher standard of ‘unacceptable risk’[22].
(13)The circumstances of the visa holder will also be relevant. For instance, it may be significant if any risk is or will be mitigated or ameliorated by bail conditions, rehabilitation, ill health or infirmity or the nature of the visa.
[18] Subsection 371(3) provides that the penalties for refusing to answer a question do not apply if answering the question may tend to incriminate the person. There is a similar provision in s.433(3) of the Act in relation to protection reviews.
[19] Refer s.97 of the Criminal Procedure Act 2009 (Vic), which sets out the purpose of the committal hearing as including to determine whether there is evidence of sufficient weight to support a conviction for the offence
[20] Refer Gong v MIBP at [45].
[21] Refer Singh (Migration) [2017] AATA 850 at [60] and [61] (Logan J).
[22] For instance under the s. 4E of the Bail Act 1977 (Vic) the test is whether there is an unacceptable risk, which is measured in terms of whether the accused will commit an offence or endanger the safety of victims, individuals or the community, not whether they may do so.

In this case, the applicant has been charged with a number of serious offences. He has been committed on 12 charges. They comprise three charges of extortion with threat to inflict injury, a charge of attempted extortion with threat to injure, three charges of make an unwarranted demand with menace (these charges are based on the same facts as the extortion charges), two charges of theft, a charge of dishonestly assisting in retention of stolen goods, one charge of burglary and one charge of cannabis possession. The extortion and attempted extortion charges are very serious. They are indictable and carry a maximum sentence of 15 years imprisonment and 10 years imprisonment respectively[23].
[23] Sections 27 (extortion), 321M (attempt) and 321P (penalties for attempt) of the Crimes Act 1958 (Vic).
The can be no dispute that these charges are very serious. The Tribunal was not provided with the Prosecution brief and the only available information about these matters is contained in a summary taken from Victoria Police’s Law Enforcement Assistance Program (LEAP) data base which was provided by Victoria Police under summons. There is no evidence before the Tribunal about the provenance and reliability of the information contained in the summary provided. Given there is no forensic purpose in including the contents which, on their face, may be potentially prejudicial to the applicant’s criminal trial, I have therefore not recounted the contents of this summary in any detail. However, it is apparent from this summary that the charges involve the applicant allegedly approaching an individual on several occasions to extort money and goods using threats of violence. It is alleged that during this process several threats were made against the victim. Initially the visa holder was able to gain money from the victim however when this approach became ineffective it is alleged the applicant took items from the victim's home, some of which were subsequently located at the visa holder's residence by Victoria Police’[24]. Victoria Police also allege that the applicant has an association with the Comanchero Motorcycle Club.
[24] Tribunal file, folio 139.
During the hearing the applicant claimed his right to silence when questioned about these matters but denied the charges and denied he had an association with the Comanchero Motorcycle Club.
While the charges are unproven and the applicant is yet to be tried, the alleged offences involve violence and the threat of physical harm to third parties. They are alleged to have occurred within 15 months of the affray charge and less than two months after the adjourned undertaking was discharged. The existence of the charges, the serious nature of the alleged offences and the fact that the applicant has been committed to trial should be given considerable weight when assessing the question of whether the applicant is or may be a risk to the safety of the Australian community or a segment of the Australian community.
I accept that the applicant has strict bail conditions. They include a surety of AU$100,000, daily reporting to the Cranbourne Police Station, a curfew from 9:00 pm to 6:00 am (except in the company of his parents) and a prohibition on attending licenced premises where alcohol is served. This surety was provided by the applicant’s grandfather. I also accept the evidence of the applicant that the surety given by his grandfather weighs heavily on him. Given these conditions, it is submitted that the Tribunal should be confident the applicant will not engage in any criminal conduct pending his trial. On one view, as contended by his representatives, this mitigates any potential risk. On the other, these strict bail conditions and the fact that the applicant is prohibited from approaching witnesses or his co-accused, suggests that the Magistrate, having reviewed the prosecution case, had sufficient concerns to impose these conditions.
The threshold for the granting of bail is ‘unacceptable risk’. This is a higher threshold for risk than required to engage the cancellation power under s.116(1)(e). In my view, the fact that such strict bail conditions have been imposed and that orders have been made about the applicant approaching witnesses or his co-accused, raises concerns about the potential risk rather than alleviates them.
The applicant’s representatives contend that the Tribunal should find that the applicant’s continued presence in Australia is not a risk but rather a benefit to the safety of the Australian community because of the applicant’s previous involvement with Multipride. In addition, his mother, Mrs Justina Burton, contends that the applicant’s involvement in attempting to break up the fight that resulted in the charges of affray also show her son’s presence is not a risk but a benefit to the safety of the Australian community.
I do not accept that Mrs Burton’s submissions about the events which are said have given rise to the previous charge of affray present a complete picture. There is no independent evidence about the circumstances that led to the charges. It is understandable that Mrs Burton seeks to advocate for her son but her view on what she believes happened is unlikely to be an objective account. The applicant told the Tribunal he could not recall whether he pleaded guilty to the charge of affray or not. There was some confusion in the submissions from the applicant’s representatives as they initially submitted the applicant was ordered to participate in a diversion program but later clarified the applicant pleaded guilty to the affray and was sentenced[25]. On the facts before the Tribunal, the Magistrate did not accept the Victoria Police recommendation to order the applicant to participate in a diversion program. According to Court documents provided by the applicant’s lawyers, he was fined $500 without conviction on 11 October 2016, released on giving an undertaking and the matter was adjourned for 12 months with an order that the applicant was to be a good behaviour during the period of the adjournment. The applicant’s lawyers advise that that matter was discharged by the Court without appearance on 5 October 2017.
[25] Tribunal file at [7] and [8] of the 27 April 2018 submissions.
It is submitted that the applicant’s involvement in the affray was said to be motivated by a claimed desire to break up an altercation. Even if I accept the claimed motivation, I am not satisfied that the applicant was promoting safety in the Australian community by his involvement. If the prosecution was satisfied that the applicant was not at fault and was a ‘good Samaritan’, the charges would have been dropped rather than pursued. While the fact no conviction was recorded suggest the Magistrate did not consider the applicant’s offending to be serious, the applicant was charged and fined for a potentially serious offence. This does not establish that the applicant’s presence is a benefit rather than a risk to the safety of the Australian community. I therefore reject this submission.
I accept the applicant’s evidence about his involvement with Multipride and that this program, which was initiated by him together with other school colleagues when he was at school number of years ago, has been successful and is aimed at promoting racial harmony. I accept that this program may ultimately be of benefit to the safety of the Australian community. However, the applicant’s involvement in the Multipride program was number of years ago. On his own evidence the applicant has not been involved with this program in recent years. While the applicant’s previous involvement with the Multipride program is commendable this does not diminish the existence of the serious criminal charges. The applicant’s previous involvement in Multipride does not establish his presence is or may be a benefit to the safety of the Australian community, nor does it negate the possibility that his presence may pose a risk.
Having regard to all of the available evidence and for the reasons outlined above, I am satisfied that the applicant may be a risk to the safety of the Australian community or segment of the Australian community. In summary, the applicant has pleaded guilty to affray and within months of his good behaviour undertaking having expired, he is charged with serious criminal offences, a number of which involve threats of violence. This raises the possibility that the applicant may be a risk to the safety of the Australian community or a segment of the Australian community, even though he is on strict bail conditions.
Conclusion
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.
Consideration of discretion
Principles and relevant considerations
Neither the Act nor the Regulations specify any mandatory considerations that should be taken into account when exercising the discretion under s.116(1)(e). The Minister has not issued any directions about the factors to be considered but the Department has developed guidelines in PAM3 –‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s 140)’.
I have had regard to the circumstances of this case, including matters raised by the applicant. I have also had regard to the Department guidelines set out in PAM3 –‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s 140)’. Unless government policy is unlawful or there are cogent reasons to depart from the policy, the Tribunal should have regard to relevant government policy. However, policy should not simply be applied without independent scrutiny and to do so would be an error of law: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 and Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179.
The PAM3 guidelines do not appear to be inconsistent with the Act, the Regulations or case law, nor was there a submission to this effect. They are produced by the Department and are comprehensive and useful. The guidelines cover such matters as:
(1)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;
(2)the extent of compliance with visa conditions;
(3)the degree of hardship that may be caused (financial, psychological, emotional or other hardship);
(4)the circumstances in which the ground of cancellation arose;
(5)past and present conduct of the visa holder towards the Department;
(6)whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, whether indefinite detention is a possible consequence of cancellation and whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister's intervention;
(7)whether there would be consequential cancellations under s.140 of the Act;
(8)whether any international obligations would be breached as a result of the cancellation, and
(9)any other relevant matters.
I have therefore considered each of the factors set out in the guideline, in so far as they are relevant to the circumstances in this case, in exercising my discretion. Those matters, including any relevant submissions and evidence, are addressed below.
Purpose of visa and whether there is a compelling reason to remain in Australia
While I note that the applicant has frequently returned to New Zealand with his mother, I accept that the applicant’s purpose for remaining in Australia is to reside, as he has for the past 17 years, with his family. Accordingly, there is a compelling reason for him to remain in Australia and this weighs against cancellation.
Compliance with conditions and past and present conduct towards the Department
There are no conditions attaching to a Special Category (Subclass 444) visa[26]. As such, this factor is neutral.
[26] Clause 444.6 of Schedule 2 of the Regulations.
There is no evidence the applicant has behaved inappropriately towards the Department. This weighs against cancellation.
International obligations
There is no evidence, nor does the applicant make a claim, that the cancellation of his Special Category visa would breach Australia’s international obligations on non-refoulement. Accordingly, this consideration is neutral. However, for the reasons outlined later in my reasons that are more conveniently dealt with separately, I have identified the potential for there to be a significant impact on the applicant’s siblings if his visa remains cancelled. This impact is relevant to the Convention on the Rights of the Child (the CROC) and Department guidelines about how these matters are to be considered.
The degree of hardship that may be caused
I accept there will be hardship to the applicant if his Special Category visa remains cancelled. He will remain in immigration detention, even though he has been granted bail, pending his criminal trial. I accept it may be more difficult for the applicant to prepare for his criminal trial while in detention than if he is in the community. However, I note that individuals who are on remand and not bailed face similar difficulties in preparing for trial. I do not view the applicant’s detention as an undue impediment to him being able to properly instruct his legal representatives in respect of the criminal proceedings. This assumes the applicant continues to be detained in Victoria, where his criminal lawyers are located. I make this observation as there have been instances where a former visa holder is transferred to immigration detention interstate. I am not aware, nor was an issue raised about this by the applicant’s representatives.
I also accept the applicant will be separated from his family for an extended period while he is awaiting trial. His mother, stepfather and siblings can visit him in immigration detention, and have done so on a regular basis since his detention but this is no substitute for the day- to-day contact that both the applicant and his parents attested to during the hearing. The uncontested evidence is that the applicant is close to his family. He has lived at home with his family since arriving in Australia and both his mother and stepfather gave evidence that the family is very close. His siblings, who are 13 and 17 years old, attended the hearing. They remained in the hearing room for the majority of the time, except when they were asked to leave by the applicant’s mother, and they were visibly upset at various stages of the hearing. There is also evidence that the applicant assists his parents from time to time in looking after his siblings and driving them to school.
According to evidence from the applicant’s counsellor, Mr Lehi Cerna, the applicant has been diagnosed with anxiety and depression by his treating medical practitioner. Mr Cerna said he was concerned that if the applicant continued to be detained in immigration detention, his mental health may be adversely affected. He does not assess the applicant as at risk of suicide, but noted that the applicant reports sleeping and mood difficulties with outbursts of anger. He was concerned about the applicant’s continued welfare and well- being. I accept this evidence and find that the applicant’s continued detention and the prospect of his deportation after his criminal trial regardless of the outcome of the criminal proceedings, are likely to cause the applicant both psychological and emotional hardship.
If the applicant’s visa remains cancelled, he will be removed to New Zealand after his criminal trial is finalised. This will be the case regardless of the outcome of the applicant’s criminal trial. If the applicant is convicted and sentenced to a term of imprisonment, he will be removed after he serves his time. If the applicant is acquitted or the charges do not proceed or are withdrawn, the applicant will still be removed. I accept this will have a negative impact on both the applicant and his family.
There is evidence that the applicant has had no contact with his biological father in New Zealand since shortly after his birth. According to Mrs Burton, the applicant has two aunts who live in New Zealand but she is not close to her sisters and does not believe there are any relatives in New Zealand that her son could live with. The applicant was born in New Zealand and has returned with his mother on approximately 14 occasions over the past 17 years. He is not unfamiliar with New Zealand. He lived there when he was young and has relatives there. Against this, the applicant spent most of his formative years in Australia and was educated in Australia. He obtained his first job in Australia and has long standing friendships in Australia. His immediate family resides in Australia and his siblings and stepfather are Australian citizens. I accept there will be considerable psychological, emotional and possibly financial hardship to the applicant if his visa remains cancelled and he is removed. The impact of the cancellation will be particularly harsh if his family do not relocate to New Zealand to be with him. If they relocate, it will be easier for the applicant but difficult for his family.
Mrs Burton gave evidence that if the applicant’s visa remains cancelled and he is removed the whole family would move to New Zealand to be with him. She told the Tribunal that they would most likely sell their family home in Australia. Mrs Burton said that there was nothing in New Zealand for them as a family and she expressed particular concerns about the difficulties around securing employment and the cost of housing in New Zealand. She also said that it would be hard to find an affordable four bedroom home to accommodate their family in New Zealand as housing is more expensive than in Australia.
The applicant’s stepfather, Mr David Burton, also gave evidence to the effect that the family would relocate to New Zealand with the applicant. Mr Burton expressed similar concerns regarding the prospect of relocating to New Zealand. In particular, he told the Tribunal that it would be hard for the family and that he believes it would be difficult for him to get work in New Zealand.
The applicant’s siblings did not give evidence but I accept that if the family relocated to New Zealand to be with the applicant, there would be hardship to the children who are Australian citizens, were born and educated in Australia and no doubt have significant connections with Australia.
I accept the evidence of Mr and Mrs Burton that they would be likely to relocate to New Zealand if the applicant’s visa remained cancelled and he is removed. While there is no evidence before us to be able to assess Mr and Mrs Burton’s claims about the difficulty of finding employment and affordable accommodation, I accept that the family is likely to face hardship if they are separated from their Australian ties.
Having regard to these matters, I am satisfied that the applicant and his family will face significant hardship if his visa remains cancelled and he is removed. This weighs against cancellation.
Legal consequences of cancellation
It is submitted that this hardship and any forced separation, in the event the family relocate to New Zealand, will be exacerbated by the legal consequences of the cancellation. The applicant’s representative submit that the consequence of the applicant’s visa remaining cancelled is that he will be permanently excluded from a grant of a further Special Category visa. As already noted, s.32(2) provides that a person will only satisfy the criterion for a Special Category visa if he or she is ‘neither a behaviour concern non-citizen nor a health concern non-citizen’. Section 5 provides that a ‘behaviour concern non-citizen’ includes any person who has been removed or deported from Australia or removed or deported from any country: s.5(d) of the Act. Section 198 prescribes the circumstances in which unlawful citizens may be removed from Australia. Under s.198(1), an unlawful non-citizen may request to be removed from Australia, and they must be removed as soon as reasonably practicable. A request by an unlawful non-citizen under s.198(1) compels the Department to exercise its removal power. As such a ‘voluntary’ removal is an exercise of the s.198 power, it is a removal for the purposes of the definition of ‘behaviour concern non-citizen’.

It is therefore submitted that a New Zealand citizen who has had their visa cancelled will be unlawful and will necessarily be liable to be removed or deported within the meaning of s.198(1) unless the former visa holder is granted a bridging visa which would allow them to leave voluntarily. This is said to have the legal consequence that a non-citizen whose Special Category visa has been cancelled under s.116(1)(e) will not be able to return to Australia under this visa and will be permanently excluded from re-entry on the basis of a Special Category visa.
It is submitted that this will be the case even if the former visa holder has had their visa cancelled on the basis of criminal charges but is acquitted of those charges or the charges are otherwise discharged. The applicant’s representatives submit it is ‘unsafe’ for the applicant’s visa to be cancelled when the criminal charges against him are unproven and he is yet to be tried.
While the suggestion that such a decision is ‘unsafe’ is an exaggeration, there is merit to the submission that cancellation under s.116(1)(e) may be unduly harsh in the applicant’s circumstances for the reasons that follow.
First, the representative’s submissions about the combined effect of the s.32 criteria, the legal impact of the cancellation and the removal provisions under the Act have some force.
Section 32 relevantly provides as follows:
(2)   A criterion for a special category visa is that the Minister is satisfied the applicant is:
(a)   a non-citizen:
(i)           who is a New Zealand citizen and holds, and has presented to an officer or an authorised system, a New Zealand passport that is in force; and
(ii)          is neither a behaviour concern non-citizen nor a health concern non- citizen; or
(b)   a person declared by the regulations, to be a person for whom a visa of another class would be inappropriate; or
(c)   a person in a class of persons declared by the regulations, to be persons for whom a visa of another class would be inappropriate.
Subsection 5(1) of the Act defines a ‘behaviour concern non-citizen’ as follows:
behaviour concern non-citizen means a non-citizen who:
(a)   has been convicted of a crime and sentenced to death or to imprisonment, for at least one year; or
(b)   has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year if:
(i)    any period concurrent with part of a longer period is disregarded; and
(ii)   any periods not disregarded that are concurrent with each other are treated as one period;
whether or not:
(iii) the crimes were of the same kind; or
(iv) the crimes were committed at the same time; or
(v)   the convictions were at the same time; or
(vi) the sentencings were at the same time; or
(vii) the periods were consecutive; or
(c)   has been charged with a crime and either:
(i)    found guilty of having committed the crime while of unsound mind; or
(ii)   acquitted on the ground that the crime was committed while the person was of unsound mind;
(d)   has been removed or deported from Australia or removed or deported from another country; or
(e)   has been excluded from another country in prescribed circumstances;
where sentenced to imprisonment includes ordered to be confined in a corrective institution. [Emphasis in original]
‘Removed or deported’ from Australia, in the definition of ‘behaviour concern non-citizen’ means removed under s.198 or deported under s.200 of the Act. A New Zealand citizen who has had their visa cancelled will be unlawful and will be subject to removal from Australia. Unless they have another visa, such as a bridging visa or, as in this case, a Criminal Justice Certificate, the former visa holder will be removed by the Department either forcibly or as a result of a request. The representative submits, and I accept, that an unlawful non-citizen who asks the Minister to be removed under s.198(1) and is so removed, as required under s.198(2), will be a person who is ‘removed or deported from Australia’ within the meaning of s.5(1)(d) and will thereby be a behaviour concern non-citizen.
In the applicant’s case, the Criminal Justice Certificate is likely to be revoked after his criminal trial is finalised or, if the applicant is convicted of the charges, once he has finished any sentence. The applicant will therefore be liable to removal after he serves his sentence if his visa remains cancelled.
The applicant’s representative submits that even if the applicant is acquitted, he will remain in immigration detention and will be an unlawful non-citizen until he is deported. He will not be able to depart Australia voluntarily unless he is granted a bridging visa on departure grounds. It is further submitted that, having regard to the previous decisions of the Department in relation to his applications for bridging visas, it is unlikely such a visa would be granted. If a visa is not granted, the applicant would nonetheless be required to leave Australia as an unlawful non-citizen. Accordingly, the applicant would fall within the definition of a ‘behaviour concern non-citizen’. If the applicant is not granted a bridging visa, this submission is correct.
If a person is a ‘behaviour concern non-citizen’, that person cannot satisfy the criterion in s.32(2)(a) and will only satisfy the criterion in s.32(2) if he or she falls within ss.32(2)(b) or (c). There are no ‘declared persons’ for the purposes of s.32(2)(b) and s.32(2)(c) applies to the limited circumstances set out in r.5.15A. Regulation 5.15A allows a New Zealand citizen to be granted a Special Category visa even though that person is a ‘behaviour concern non- citizen’ if the person has:
(1)been excluded from a country other than Australia in circumstances that the Minister does not consider warrant exclusion from Australia: r.5.15A(2) of the Regulations; or
(2)had a visa cancelled under s.501(3A) but the cancellation has subsequently been revoked: r.5.15A(3) of the Regulations.
Neither of these criteria applies to the applicant.
Having regard to these provisions, if the applicant’s visa remains cancelled and he is not granted a bridging visa (or some other visa) and he is removed from Australia, he will be unable to meet the criteria in s.32 in the foreseeable future, unless the provisions are amended. However, critical to this is the question of whether the applicant would be granted a bridging visa if he is acquitted or be removed in any event. Relevantly, s.198(5) provides that a non-citizen detainee who has not applied for a substantive visa is liable to be removed ‘regardless of whether they have applied for a bridging visa’. The applicant may be entitled to a Bridging E (Subclass 050) visa to depart Australia voluntarily but this may not be granted or he may be removed after the Criminal Justice visa is revoked.
Unfortunately, the Department guidelines in PAM3 do not provide any guidance on what the Department would do in such a circumstance. It is also relevant to note that the Migration and Refugee Division cannot utilise the procedure available to the General Division in proceedings under s.501 of the Act where the Minister is a party to the proceedings and is represented. In those proceedings, the Minister’s representatives could provide advice or guidance to the Tribunal about what would happen in such circumstances. As such, I accept that the outcome for the applicant, even if he is acquitted, is at best uncertain.
If the applicant cannot return to Australia under a Special Category visa, he may have limited prospects of returning through an alternative visa pathway.
It is submitted, and I accept, that while the applicant may be eligible to be granted a Remaining Relative (Subclass 115) visa 12 months after his removal from Australia the processing period for the processing of this visa may be up to 50 years. I accept based on information on the Department of Home Affairs website that there may be a lengthy delay in the processing times for such a visa[27].
[27] According to the Home Affairs website: ‘There can be waiting times of up to 50 years for this visa.’ and ‘Global processing time for this visa is unavailable as applications are capped and queued’
It is not apparent that the applicant would meet the criteria for any other visas other than a visitor visa, which is limited to visits of up to three, six or 12 months. The applicant does not have a partner in Australia and therefore could not return under a Prospective Marriage Subclass 300/ Partner (Migrant) Subclass 100 visa at present. Nor does he appear to meet the skilled migration requirements. As noted, the applicant may be eligible to meet the criteria for a visitor visa but there is a three year exclusion period under Public Interest Criteria 4013 (PIC 4013) in Schedule 4 of the Regulations, which applies as a primary criteria to all visitor visa applications under cl.600.213(1) of the Regulations. PIC 4013 may be waived if there are compelling circumstances affecting the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen[28] but the applicant for the visa must establish that such circumstances exist.
[28] An eligible New Zealand citizen is defined under r.1.03 of the Regulations to mean a New Zealand citizen who is a protected Special Category Visa holder within the meaning of s.7 of the Social Security Act 1991 with the protection applying for those Special Category visa holders who were ordinarily resident in Australia on 26 February 2001.
In summary, I accept that the prospects of the applicant returning to Australia on a permanent or even temporary basis if his Special Category visa remains cancelled are speculative or at best uncertain. This weighs against cancellation.

100. Whether this will result in the ‘permanent’ relocation of the Burton family to New Zealand is difficult to assess at this point of time, suffice to say that the possibility of the applicant being indefinitely excluded from Australia will cause the Burton family hardship.
101. Mr Burton has a brother and sister who were born in Australia in December 2001 and August 2005 respectively. His siblings are Australian citizens and would be affected by the decision to cancel his visa. Relevantly, PAM3 states that in a situation where there are children in Australia whose interests could be affected by the cancellation the best interests of the children are to be treated as a primary consideration[29]. The Australian Courts have held that not only are their interests as children to be assessed as a primary concern, but also their interests as Australian citizens[30]. This is consistent with Australia’s obligation under the CROC.
[29] Procedures Advice Manual - PAM3 ‘General visa cancellation powers - Australia’s international obligations - Non-refoulement obligations’; Minister for Immigration and Ethnic Affairs v Teoh (1994) 183 CLR 273.
[30] W157/00A v Minister for Immigration and Multicultural Affairs (2001) 190 ALR 55 at [81].
102. Although the relationship is not a parental relationship, it is nonetheless a significant relationship. The applicant gave evidence that he provides financial and other contributions to his family, including helping his brother and sister get to and from school and supporting them at school events and functions. I accept that in this case it is in the best interests of the applicant’s brother and sister to have continued contact with him. If the applicant’s parents and siblings relocate with him to New Zealand this contact will continue. However, if the applicant’s siblings and parents remain in New Zealand I accept his siblings will be separated from their extended family, and in particular their grandparents, who reside in Australia. It is in the children’s best interests that they remain living in Australia with their parents and extended family as is currently the case.
103. Accordingly, this weighs against cancellation.
The circumstances in which the ground of cancellation arose
104. The most significant factor that weighs in favour of cancellation is the circumstances in which the ground for cancellation arose.
105. The applicant’s Special Category visa was cancelled in circumstances where the applicant had been charged with serious criminal offences, he had been previously charged with affray although no conviction was recorded, he has been granted bail pending his criminal trial and, while it is not referred to in the decision of the delegate but was before the delegate, the Victoria Police have concerns about what is considered to be an association with the Comanchero Motorcycle Club. Because this matter was not referred to by the delegate or raised in the notice of intention to cancel, it is unclear whether this formed part of the decision by the delegate to cancel. However, since the pending charges arise out of an alleged association, this is a matter which falls within this discretionary criteria and I have taken this concern into account when considering the exercise of the discretion.
106. The affray charge did not result in a conviction but the other charges are very serious. If established, the applicant’s representative contends, and I accept, that the applicant is likely to be sentenced to a term of imprisonment of 12 months or more. He would therefore be liable to have his visa cancelled under s.501(3A) and the Minister is in fact obliged to do so. It is submitted that having regard to a number of other relevant considerations the potential alternative pathway for cancellation under s.501 must be considered and, in the circumstances of this case, any decision to cancel should be deferred to allow the criminal process to take its course.
107. There is some merit to this submission in the particular circumstances of this case.
108. First, the charges are unproven, as are the claims made by Victoria Police about the applicant’s association with the Comanchero Motorcycle Club. There is a criminal process to establish the applicant’s guilt or innocence and it is not the Tribunal’s role to make assessments about this or the prospect of any criminal case against the applicant. As I have already observed, it is difficult for the Tribunal to make such an assessment where it does not have the necessary skill or expertise to opine on criminal liability and it does not have, and in any event cannot test, the Prosecution brief. An applicant is entitled to refuse to answer questions that may incriminate him or her to preserve their rights in respect of any criminal process. If such right is exercised, prosecution evidence will be unchallenged but in our view the Tribunal cannot infer guilt or make any negative inference from this. Accordingly, the unproven charges evidence the potential for risk of harm based on the inference that Victoria Police had a basis for laying the charges and that the applicant has now been committed for trial. However, unproven charges do not establish guilt or the truth of the underlying facts said to support the charges and this matter is yet to be determined through the criminal trial.
109. It is also relevant to note that any risk or uncertainty about whether the applicant is or may be a risk to safety will be more reliably determined after his criminal trial on 27 May 2019. This is because if the applicant is found guilty, the facts which are the basis for the prosecution will have been proven. If the applicant is sentenced to a term of imprisonment for 12 months or more as a result of his criminal trial, he will have a ‘substantial criminal record’ for the purposes of s.501(7) and his visa must be mandatorily cancelled under s.501(3A) in any event. If the applicant is found not guilty, this will be because the prosecution is unable to establish the facts on the basis of which the charges have been laid. It is these facts, and the possibility they may have occurred, that support the notion the applicant is or may be a risk to the safety of the Australian community. If these facts are not established, there is arguably no foundation for the concern about the risk to safety of the Australian community. If the applicant pleads guilty or is convicted of lesser charges and is sentenced to a period of imprisonment of less than 12 months, and/or if concerns remain about the applicant’s character or his alleged association with the Comanchero Motorcycle Club, the applicant’s visa may still be cancelled under s.501 for failure to pass the character test, relevantly, ss.501(6)(b), (c) or (d) or under s.116(1)(e) if further evidence becomes available.
110. Secondly, the applicant is on bail with strict conditions. The Court has assessed the risk based on the evidence before it, consideration of the prosecution case and the requirements under the relevant bail legislation and has adjudged that subject to the imposition of conditions, the applicant is not an unacceptable risk. Relevantly, the bail conditions require that the applicant report to the Cranbourne Police Station daily and he is prohibited from leaving his place of residence between 9:00 pm and 6:00 am except in the company of his mother and father, attending licenced premises where alcohol is consumed and associating with his co-accused. These conditions mitigate the risk.
111. In summary, the circumstances in which the ground for cancellation arose, being the criminal charges and Victoria Police allegations, weigh in favour of cancellation. However, the strength of this factor, given the charges and allegations are unproven, conditional bail has been granted and the applicant may be subject to cancellation under s.501(3A) if the charges are proven, moderates its weight.
Conclusion on the exercise of discretion
112. Considering the circumstances as a whole, the Tribunal concludes that the visa should not remain cancelled.
113. Several of the factors in the Department guidelines weigh against cancellation, in particular the hardship that will be faced by the applicant and his family and the possible consequences of the visa remaining cancelled. It is significant that these matters may arise even if the applicant is acquitted of the criminal charges or the charges are withdrawn, discharged or otherwise do not proceed. While the seriousness of the charges weigh in favour of cancellation, the risk is mitigated by the conditions of bail and the power of mandatory cancellation that is likely to be available to the Minister if the applicant is convicted.
114. On balance, and having regard to the particular circumstances of this case, I have concluded that the decision to cancel should be set aside, which would allow any cancellation decision to be considered after the outcome of the criminal trial is known, is the correct or preferable decision in this review.
DECISION
115. The Tribunal, as constituted, heard this matter and was provided with supplementary submissions and evidence by the applicant’s representative about the review, including updated information about the applicant’s criminal proceedings.
116. Under s.42(2) of the Administrative Appeals Tribunal Act 1975 (Cth), if the Tribunal is constituted for the purpose of the proceeding by two members, any disagreement between the members is to be settled in accordance with the opinion of the Presiding Member. Given I am the Presiding Member my opinion and, therefore this decision, is the operative decision of the Tribunal.
117. In this case, Senior Member Ison and I agreed that the ground for cancellation exists but do not agree in relation to the exercise of discretion. Senior Member Ison has taken the opportunity to explain the reasons why he has formed a different view about the discretion. In essence, Senior Member Ison gives the greatest weight to the circumstances in which the ground of cancellation arose. While acknowledging the factors against cancellation, including the hardship to the applicant and his family, he finds these matters are ameliorated by the matters set out in his written opinion. While I agree with some aspects of this opinion, I do not agree with his conclusions about the exercise of the discretion. However, in the interests of transparency, this opinion is to be provided to the applicant and is to be published, in the usual course, together with my decision

[102] Tribunal file, folios 121 to 122.
[103] Tribunal file, folios 123 to 127.
[104] Samuta McComber submission to the Tribunal dated 27 April 2018 at paragraphs [18] and [19], Tribunal file, folio 146.
197. The difficulty I have with this submission is that it relies on predicting a potential future decision of a delegate of the Minister, guided by the previous written position of the Department in relation to Mr Burton. Whilst this speculation may not be unreasonable, I am not satisfied it provides a firm footing for me to make a positive finding agreeing with Mr Burton’s representatives in this instance. The Department’s letter was significantly qualified through the use of words such as ‘considering’, ‘suggests’ and ‘may not’, as it should have been, given the delegate is required to bring an open mind had the application proceeded.
198. Much may depend on the timing, terms and circumstances of any future Bridging E visa application by Mr Burton. If Mr Burton was acquitted of all charges or all charges were withdrawn prior to trial, such that it did not proceed against Mr Burton, then this may, or may not, cause the Department or specific delegate to review the previous preliminary position and Mr Burton may, or may not, be granted a Bridging E visa. It is not a matter of controversy that a future delegate would not be bound by the opinions expressed on 23 March 2018.
199. Similarly, there is little information before the Tribunal about what the Minister or Department would do post Mr Burton’s criminal trial, assuming it proceeds. Mr Burton’s representatives submitted that if Mr Burton’s visa remains cancelled under s.116(1)(e)(i), then irrespective of whether the charges are withdrawn or he is acquitted of all charges, once the criminal justice stay visa is no longer in place, as a non-citizen Mr Burton will be removed from Australia.
200. Again, I do not think this is an unreasonable submission but as noted previously this outcome is not certain. Mr Burton’s removal may very well occur quickly considering the Department’s obligation under s.198 of the Act to remove as soon as reasonably practicable an unlawful non-citizen, including under s.198(5), where that non-citizen is a detainee, has not applied for a substantive visa and regardless of whether they have made a valid application for a bridging visa.
201. However, there are other possibilities open. Departmental officers have a statutory duty to detain a person who they know or reasonably suspect is an unlawful non-citizen under s.189 of the Act. As noted above, s.195A of the Act empowers the Minister to personally intervene to grant someone held in immigration detention under s.189 a visa whether the person detained applied for the visa or not. The only requirement is that the Minister ‘thinks that it is in the public interest to do so’.
202. At best, I can find that it is possible that Mr Burton may not be eligible to be granted another Subclass 444 visa if his visa remains cancelled under s.116(1)(e)(i) of the Act, but that is far from certain in my mind and therefore does not amount to a mandatory legal consequence in the sense envisaged by this consideration.
203. In relation to Mr Burton obtaining another temporary visa, other than a Subclass 444 visa, Mr Burton’s representatives submitted:
Unable to satisfy Public Interest Criteria 4013 for 3 years
49. Further, if the Applicant’s visa is cancelled under s 116(1)(e) he will unable (sic) to satisfy PIC 4013(3) for the three years following the cancellation of his visa. It is noted that PIC 4013 is a criteria of most temporary visas.
Unable to satisfy Special Return Criteria for 12 months
50. If the applicant is removed from Australia he will be unable to satisfy SRC 5002 for twelve months following his removal from Australia. It is noted that SRC 5002 is a criteria of most visas.
Limited visa pathways to enter Australia within the next three years
51. It is submitted that if the Applicant is excluded from being granted a further subclass 444 visa permanently or any other temporary visa for three years, the Applicant’s options for lawfully re-entering Australian (sic) within the next three years are extremely limited as he is not eligible for most permanent visas.
52. While the applicant may be eligible to be granted a Remaining Relative (subclass 115) twelve months after his removal from Australia, the current processing times published by the Department of Home Affairs indicate that the waiting time for grant may be up to fifty years.

204. I find the submission about future visa pathways for Mr Burton to be speculative.
205. Mr Burton gave evidence that he has had romantic partners in the past but did not have a partner at the time of hearing, so he would not presently be able to apply for a Partner (Subclass 100/309) visa. This may change. A Partner (Subclass 309) visa is a temporary visa that can lead to a Partner (Subclass 100) visa being granted which is permanent visa. The permanent visa allows the de facto partner or spouse, as those terms are defined, of an Australian citizen, Australian permanent resident or eligible New Zealand citizen to live in Australia.
206. I accept the submissions of Mr Burton’s representatives above that there will be limitations on Mr Burton’s future visa pathways to return to Australia if Mr Burton was unable to obtain another Subclass 444 visa. However, both Public Interest Criteria 4013 and Special Return Criteria 5002 that their submission refers to are subject to the qualification that if there are compelling circumstances affecting the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, then a visa can be granted within the relevant exclusion period.
207. I find that these matters are too speculative to constitute a mandatory legal consequence of the cancellation of Mr Burton’s visa.
208. I find this consideration is neutral and does not weigh in support of or against the cancellation of Mr Burton’s visa.
Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation including the best interests of any children affected by consequential cancellation or cancellation would lead to removal in breach of Australia’s non-refoulement obligations
209. Australia is a signatory to and has ratified, such that under international law it must comply with, a range of international agreements. Those most relevant to the cancellation of visas include the Convention on the Rights of the Child (CRC), the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
210. The Department policy, as expressed in PAM3, on the consideration that must be given to these international obligations when considering the cancellation of a visa is currently as follows:
The CRC and family unity principles Best interest of children
Article 3.1 of the Convention on the Rights of the Child (CRC) states:
'In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.'
Article 3.1 of CRC does not stipulate which relationships should be considered in determining whether a decision is or is not in the best interests of the child. Therefore, in determining what is or is not in the best interests of the child, relationships other than between the natural or legal parent and the child should also be considered when making a decision. Further, the best interests of the child are a primary, not the primary, consideration.
Any relationship that would affect the best interests of the child is to be considered. Consideration should be given to the type and strength of the relationship(s) between the non- citizen and the child/children and also the extent of impact that visa cancellation would have on the child.
The obligation to consider the best interests of the child applies to those children who are under 18 years old (noting that the child must have already been born) and the obligations apply only to children who are within Australia’s territory or jurisdiction.
The interests of adult children residing with the family unit should be taken into account under the family unity principles described immediately following.
Officers requiring support in relation to considerations relating to a child’s best interests should email Child Protection Operations.
Family unity
Family unity principles must also be taken into account when cancellation or revocation of a cancellation is being considered, however, this applies only to family members within Australia's territory or jurisdiction
Article 23.1 of the ICCPR provides that:
·The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State.

Article 17.1 provides that:
·No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

It is worth noting that reasonable interference with family is contemplated provided it does not constitute arbitrary or unlawful interference.
Family unit principles also derive from the CRC:
·Article 9 (non-separation of children and parents) (noting article 9(4) contemplates that parents may be legitimately separated from children through deportation)
·Article 16 (freedom from interference with family).

The effect on family members (particularly partners and children) in Australia, including non- citizen family members, must be considered by the visa cancellation delegate. This is particularly the case if the visas of family members would be cancelled by operation of law under s140(1).[105]
[105] Extracted from the Department’s online database called Legend on 1 August 2018 from the ‘General visa cancellation powers (s109, s116, s128, 134B and s140)’.

211. Mr Burton did not assert and his representatives did not make any submissions that Australia has obligations under international agreements that would be breached if Mr Burton’s visa remains cancelled.
212. The delegate in making their decision stated:
There is no information before the Department which indicates that cancellation would result in any breach of Australia’s international obligations, nor has the visa holder advised of having any concerns in relation to these principles.[106]
[106] Tribunal file, folio 1 (back).

213. However, I consider that both the CRC and the ICCPR are potentially engaged by the cancellation of Mr Burton’s visa.
214. Mr Burton has been separated from his family by being placed in immigration detention. I do not find this offends the family unit principles referred to above as Mr Burton’s detention is not arbitrary or unlawful, as it is a lawful consequence of Australia’s migration law. There is no submission before the Tribunal that those laws are invalid or that Mr Burton’s detention is arbitrary or unlawful.
215. If Mr Burton’s visa remains cancelled he will be separated from his family if he is required to leave Australia, at least in the short-term. For similar reasons to above, I do not find this breaches Australia’s international obligations as that short-term separation is an intended consequence of Australia’s migration laws in Mr Burton’s circumstances. I describe this separation as short-term given the evidence of Mr Burton’s parents that they will relocate to New Zealand to keep their family together.
216. However, I am concerned about the best interests of Mr Burton’s siblings as children and Australian citizens. The potential impact of the cancellation of Mr Burton’s visa on them has given me considerable cause for concern. I accept Mrs Burton’s evidence that her eldest son is a significant support to his siblings and that they wish both for him to remain with them and to remain in Australia. I have also accepted their separation from their brother whilst he is in immigration detention has caused and continues to cause them significant distress. Whilst Mr Burton is not in a parental relationship it is clear that he plays a significant role in the lives of his siblings, particularly in the circumstances of their mother’s ongoing ill health.
217. For these reasons and the reasons I have set out in the section ‘Hardship to Mr Burton’s family’ above I find that it would be in the best interests of Mr Burton’s siblings for the cancellation of his visa to be set aside. This is an important consideration and I have given it considerable weight above as I do here.
218. The weight I give the best interests of Mr Burton’s siblings as children is ameliorated to a significant degree because the relocation of the Burton family to New Zealand is ultimately a matter for Mr and Mrs Burton. They are best placed to decide what is in the best interests of their family, and in particular their children, in the difficult circumstances for them of the potential cancellation of their eldest son’s visa.
219. I find this consideration weighs against the cancellation of Mr Burton’s visa but for the reasons set out above I have given it only modest weight.
If a permanent visa is being considered for cancellation, whether the visa holder has formed strong family, business or other ties in Australia
220. Mr Burton’s visa is a temporary visa and not a permanent visa, as explained above.
221. I find this consideration is neutral and does not weigh in support of or against the possible cancellation of Mr Burton’s visa.
Any other relevant matters
222. Mrs Burton also described her son’s public service in Australia and overseas, including helping the elderly through their local church community and undertaking voluntary work on their usual annual overseas trips as a family. Her written statement in support of her son spoke about his leadership roles at both primary and secondary school and his role in detail in creating, with others, the Multi Pride program at Lyndhurst Secondary College, its ongoing positive effect on the school community, its expansion to other schools and the pride this had brought her son and her family. Many of the authors of letters of support spoke highly of Mr Burton and in particular his good deeds for others and community service. I accept this evidence.
223. I have taken Mr Burton’s history of local and international community service into consideration and consider it weighs against the cancellation of Mr Burton’s visa.
Conclusions
224. In carefully weighing these considerations I have found that the decision to cancel Mr Burton’s Special Category (Temporary)(Class TY)(Subclass 444) visa should be affirmed.
225. The considerations that weigh in favour of the cancellation of Mr Burton’s visa are the circumstances of the cancellation of Mr Burton’s visa, which I gave the greatest weight, and ameliorating factors in relation to the consequences of cancellation for Mr Burton.
226. The circumstances of the cancellation include:
·Mr Burton pleaded guilty to a crime of violence in October 2016 which resulted in him being fined $500 without conviction and giving an undertaking to be of good behaviour for 12 months, which he complied with. I did not find the claim that Mr Burton became involved in the affray only to break up a fight his friends were involved in as credible or convincing.
·A Victoria Police recommendation that Mr Burton be placed on a diversion order for that offence was rejected by the Magistrates’ Court.
·Mr Burton having a long-term and ongoing friendship with a person he told the Tribunal is a member of the Comanchero MC and who was a co-offender on the affray matter, and on Mr Burton’s evidence was sentenced to imprisonment for that matter.
·In November 2017, barely weeks after completing his undertaking to be of good behaviour for the affray matter, Mr Burton was charged with serious and significant crimes of apprehended violence including blackmail with menaces and extortion with threats to injure and other criminal charges.
·The criminal charges filed against Mr Burton have now progressed beyond the charge stage and Mr Burton, following a committal hearing, has been committed by a Magistrate to stand trial on 12 criminal charges with the trial set down for 20 hearing days in the County Court of Victoria.
·Mr Burton has been granted bail on onerous conditions which on his evidence includes conditions that he not associate with anyone from the Comanchero MC or go to the Comanchero MC owned Nitro Gym in Hallam. This indicates to me that the Magistrates who have granted bail with those conditions had concerns about Mr Burton’s alleged association to the Comanchero MC and also thought it necessary to impose a nightly curfew, daily reporting to police, an alcohol and drug ban and a very significant $100,000 surety to ensure Mr Burton was not, amongst other matters, an unacceptable risk to the safety or welfare of any person or of committing offences whilst on bail.
·There is evidence before the Tribunal that Mr Burton has had alcohol abuse issues in the recent past and clearer evidence that he has had and continues to have anger management issues, both of which he has sought voluntary counselling for.

227. The ameliorating factors to the hardship that Mr Burton will experience from the cancellation of his visa are:
·Mr Burton has visited New Zealand 14 times in his 17 years in Australia, most recently in October 2017, and Mr Burton and his mother have family members in New Zealand. He is a young man with no long term relationship or parenting commitments or known financial commitments in Australia, such that I found he is better placed than many to make a potentially successful new life in New Zealand;
·Mr Burton’s family have indicated they will relocate to New Zealand to keep their family together which will provide considerable emotional and psychological support to Mr Burton and will significantly reduce the impact of the cancellation of his visa on him; and
·Mr Burton will be able to more effectively immerse in his Maori heritage and identity in New Zealand which will provide a positive influence in his life.

228. The considerations that weigh against the cancellation of Mr Burton’s visa are:
·Mr Burton has a compelling reason to travel to and stay in Australia to remain with his family, ameliorated only in part by the evidence his immediate family will move to New Zealand if Mr Burton is required to depart Australia;
·Mr Burton is experiencing hardship in immigration detention through the separation from his family, friends and familiar surroundings, which is exacerbated by pre-existing mental health conditions, although the medical evidence in support of this finding was not particularly strong or probative, reducing the weight I gave to this consideration;
·Mr Burton has been granted bail in relation to the pending criminal charges and complied with the conditions of his bail prior to being detained, adding to the hardship immigration detention is causing him, although, due to the lack of direct evidence from Mr Burton about this I gave this consideration only modest weight;
·Mr Burton will suffer hardship if he is required to relocate to New Zealand and start over, but as I found he is very familiar with New Zealand, he has relatives there, his own immediate family would move there and being a young man with no known significant relationship or financial commitments in Australia, I gave this consideration less weight than I would have for someone who, for example, would be separated from their partner and/or children, or even someone who had been in Australia for a long period of time and had not returned at all, rarely or not recently to their home country;

·Mr Burton’s family will suffer significant financial, emotional and psychological hardship as a result of the cancellation of Mr Burton’s visa and I gave this consideration considerable weight. This hardship is exacerbated by Mrs Burton’s ill health and I accepted the intended relocation to New Zealand would be particularly difficult for Mr Burton’s siblings. I also accept the move would cause hardship for Mr Burton’s parents financially and psychologically, as they would need to sell their house in Australia and find new accommodation in New Zealand, and Mr Burton’s stepfather would need to find new work in New Zealand. If Mr and Mrs Burton had not given evidence that their family will relocate to New Zealand then I would still have given some weight to this consideration as they then would have been separated from Mr Burton. In those circumstances I would also have given considerably more weight to the impact of cancellation on Mr Burton;
·Mr Burton has been cooperative in his dealings with the Department;
·Mr Burton has a history of local and international community service which is a positive contribution to the people and communities he has assisted; and
·It would be in the best interests of Mr Burton’s siblings as children to set aside the cancellation of his visa so they do not have to move to New Zealand. As moving to New Zealand is a choice, albeit a very difficult one, for Mr Burton’s parents I find they are best placed to decide what is in the best interests of their children and therefore I gave this consideration only modest weight.

229. The considerations that are neutral and neither weigh in support of or against the cancellation of Mr Burton’s visa are:
·Compliance with visa conditions because Mr Burton’s Subclass 444 visa does not have any conditions attached to or imposed on it;
·Whether there are persons in Australia whose visas would, or may be cancelled under s.140 of the Act as no members of Mr Burton’s family unit are dependent on his visa;
·Whether there are mandatory legal consequences to a cancellation decision including possible indefinite detention, as I found it is possible that Mr Burton may not be able to obtain a Subclass 444 visa in the future; but the evidence about this and other visas potentially available to Mr Burton and the restrictions he may experience in applying for those visas are speculative and uncertain; and
·If a permanent visa is being cancelled the visa holder’s family, business or other ties to Australia, because Mr Burton’s Special Category (Temporary)(Class TY)(Subclass 444) visa is a temporary visa.

230. In my view the considerations that weigh in favour of the cancellation of Mr Burton’s visa, particularly the circumstances in which cancellation arose given a prior offence for a crime of violence and the nature and extent of the criminal charges pending against Mr Burton, outweigh the considerations that weigh against the cancellation of his visa many of which, as noted above, are ameliorated by Mr Burton’s particular circumstances.
DECISION
231. For the reasons set out above I affirm the decision of the delegate of the Minister for Home Affairs to cancel the applicant’s Special Category (Temporary)(Class TY)(Subclass 444) visa.
Michael Ison
Senior Member