Carr (Migration)

Carr (Migration) [2018] AATA 731 (29 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ryan Damian Carr
CASE NUMBER:  1727446
DEPARTMENT REFERENCE:                 ADF2017/122925
MEMBER:Jan Redfern
DATE:29 March 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 29 March 2018 at 5.44pm
CATCHWORDS
MIGRATION – Class TY Subclass 444 Special Category (Temporary) visa – cancellation under s.116(1)(e)(ii) of the Migration Act 1958 - whether applicant is or may be, or would or might be, a risk to the health, safety of an individual or individuals – where applicant has been convicted of various criminal offences – relevant time for consideration – statutory interpretation – ground for cancellation established – whether the power to cancel the visa should be exercised – exercise of discretion where pervious cancellation revocation decision under s.501CA of the Migration Act 1958 and applicant has voluntarily departed Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss. 5, 32, 42(2A), 48(1), 82(1), 82(8), 109, 116, 116(3), 116(1)(e), 140, 336N, 338(3), 338(3A), 338(4), 348, 409, 411(1)(d), 414, 496, 499, 501, 501(3A), 501CA(4), 501CA(5), 501BA(2)
Migration Regulations 1994, reg. 5.15A; cl.444.511 and 444.6 of Schedule 2
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Gong v Minister for Immigration and Border Protection [2016] FCCA 561
Minister for Immigration and Ethnic Affairs v Teoh (1994) 183 CLR 273
Re Drake v Minister for Immigration and Ethnic Affairs (Re Drake No 2) (1979) 2 ALD 634
Shi v Migration Agents Registration Authority [2008] HCA 31
Tarrant v Australian Securities and Investments Commission [2013] AATA 926
W157/00A v Minister for Immigration and Multicultural Affairs (2001) 190 ALR 55
Cheryala v Minister for Immigration and Border Protection [2018] FCAFC 43
Kim v Minister for Immigration and Citizenship [2008] FCAFC 73
SECONDARY MATERIALS
Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014
Administrative Appeals Tribunal – President’s Direction –Allocation of Business to Divisions in the AAT (9 October 2017)
International Convention on Civil and Political Rights 1996
Procedures Advice Manual – PAM3 ‘General visa cancellation powers’
UN Convention on the Rights of the Child 1989
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 1 November 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Class TY Subclass 444 Special Category (Temporary) visa under s.116 of the Migration Act 1958 (the Act). The delegate cancelled the visa under s.116(1)(e) of the Act on the basis that the applicant is or may be, or would or might be, a risk to the health or safety of an individual or individuals.
The issue for the Tribunal on review is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the following reasons, the decision to cancel the applicant’s visa should be affirmed.
BACKGROUND FACTS
The applicant, Mr Ryan Damian Carr, is a 43 year old New Zealand citizen. He first arrived in Australia as a four year old child together with his immediate family. Mr Carr’s current Special Category (Subclass 444) visa was granted on 1 September 1994. He has remained in Australia since that time. The applicant has eight Australian born children from three relationships, including a six year old and five year old with his current partner who is an Australian citizen.
The applicant claims, and there is no evidence to the contrary, that he was subjected to a traumatic experience when he was a child which he says led to substance abuse, the development of a mental illness and his criminal offending in later life. He has been charged with, and convicted of, several criminal offences. Those offences range in seriousness.
On 18 July 2016, Mr Carr’s visa was mandatorily cancelled under s.501(3A) of the Act on the basis that he had a ‘substantial criminal record’ and, as such, did not pass the ‘character test’ as that term is defined in the Act. Specifically, the delegate of the Minister found that he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment, on a full-time basis, in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory. The decision to cancel the visa was subsequently revoked by a delegate under s.501CA(4) of the Act. Subsection 501CA(4) provides that the Minister may revoke the cancellation decision if satisfied that the person passes the character test or that there is another reasons why the original cancellation decision should be revoked. There is no information before the Tribunal about why the cancellation decision was revoked but where a cancellation decision has been revoked by the Minister or his or her delegate, the original decision is taken ‘not to have been made’: s.501CA(5) of the Act.
On 1 November 2017, Mr Carr was convicted of various offences including two counts of unlawful possession of weapons. Mr Carr was sentenced to a cumulative period of 6 months in respect of those offences. Notably, he was given a 6 month sentence in respect of one of the two unlawful possession of weapons offences, which was fully suspended. Time spent in per-sentence custody was deemed as time already served in respect of the other offences.
A delegate of the Minister issued the applicant a Notification of Intention to Consider Cancellation (NOICC), advising him that the Department of Immigration and Border Protection (the Department) intended to cancel his visa under s.116(1)(e)(ii) of the Act as he is or may be, or would or might be, a risk to the health or safety of an individual or individuals. The grounds for the notice were the November 2017 convictions and penalties. The delegate properly, having regard to s.501CA(5), did not raise or consider the convictions which formed the basis of the 2016 cancellation and revocation decision as a ground for cancellation.
The applicant provided a response to the NOICC. In his response, Mr Carr raised his employment prospects, the impact of the cancellation on his family, the circumstances which he says gave rise to his offending, the length of time he has resided in Australia and the extent of his ties to Australia. After considering the applicant’s response, a delegate of the Minister decided to cancel his visa. The delegate concluded that grounds existed for cancellation of his visa under s.116(1)(e)(ii) of the Act as the applicant’s ‘presence in Australia is or may be a risk to the safety of an individual or individuals.’
Having found that grounds existed for cancellation, the delegate considered whether the visa should be cancelled. In assessing whether the visa should be cancelled, the delegate placed some weight on the impact of cancellation on the applicant’s family, the length of time the applicant has resided in Australia and his traumatic childhood experience. However, the delegate considered that the applicant’s ‘extensive criminal history accumulated during his period in Australia’ as well as the fact that the applicant’s most recent conviction arose after a previous cancellation and revocation of his visa weighed in favour of cancellation. The delegate also placed weight on the nature of the November 2017 offences. After weighing all the relevant factors, the delegate was satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel visa. The applicant subsequently applied for review of the cancellation decision before this Tribunal.
Mr Carr did not apply for a bridging visa and was detained by the Department under s.189 of the Act. He voluntarily departed Australia on 23 November 2017.
RELEVANT LAW
Non-citizens from New Zealand may obtain permission to travel to and stay in Australia under a Special Category (Subclass 444) visa. The criteria for a Special Category (Subclass 444) visa are set out in s.32 of the Act and reg 5.15A of the Migration Regulations 1994 (the Regulations).[1] The Subclass 444 visa is a temporary visa permitting the holder to remain in Australia while the holder is a New Zealand citizen (cl.444.511 of Sch 2 of the Regulations). The visa ceases to have effect if it is cancelled or if the visa holder leaves Australia: ss.82(1) and (8) of the Act.
[1] Clause 444.2 of Schedule 2 of 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.
Given the significance of s.32 to the criteria and the critical issues that require determination, this provision is extracted in its entirety as follows:
Special category visas
(1) There is a class of temporary visas to be known as special category visas.
(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.
(3) A person may comply with subparagraph (2)(a)(i) by presenting a New Zealand passport to an authorised system only if:
(a) the New Zealand passport is of a kind determined under section 175A to be an eligible passport for the purposes of Division 5 of Part 2; and
(c) before the person is granted a special category visa, neither the system nor an officer requires the person to present the passport to an officer.
In short, to be eligible for a Special Category (Subclass 444) visa, an applicant must be a non-citizen who is a New Zealand citizen, who holds a New Zealand passport that is in force and is neither ‘a behaviour concern non-citizen nor a health concern non-citizen’ or is a person or in a class of persons declared by the Regulations to be a person for whom any other visa would be inappropriate.
Relevant to the facts in this case, the expression ‘behaviour concern non-citizen’, which only applied to Special Category subclass visas, is defined in s.5(1) of the Act and essentially includes a non-citizen who has been convicted of one or more crimes and is sentenced to imprisonment for at least one year, or to periods that add up to at least one year. It also includes a non-citizen who has either been found guilty or acquitted of a crime committed while of unsound mind, or has been removed or deported from Australia or another country or has been excluded from another country in certain circumstances which are not relevant to this case.
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 sets out the general grounds for cancellation and s.501 provides for cancellation on character grounds.
The cancellation decision, which is the subject of the review, was made under s.116 of the Act. The Minister may cancel a visa under s.116 of the Act if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, s.116(1)(e) provides that the Minister may cancel a visa if satisfied that:
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.
[Emphasis added]
This provision may be relied on by the Minister to cancel a temporary 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 meaning of ‘substantial criminal record’ under s.501 of the Act.
In contrast, s.501(2) provides that the Minister may cancel a visa if he or she reasonably suspects the visa holder does not pass the ‘character test’ and the person does not satisfy the Minister about this. If the visa holder does not pass the character test because of a ‘substantial criminal record’ or because the visa holder has committed a sexually based offence involving a child, the Minister must cancel the visa: s.501(3A) of the Act. Notwithstanding this, there is a process whereby the former visa holder may apply for the cancellation to be revoked: s.501CA of the Act. If the cancellation is revoked, the original decision is taken not to have been made: s.501CA(5). Relevantly, the phrase ‘substantial criminal record’ is defined in s 501(7) and is in similar terms to the definition for a ‘behaviour concern non-citizen’ as defined in ss.5(1)(a) and (b). The Minister may also refuse to grant a visa if he or she is not satisfied the applicant satisfies the character test: s.501(1) of the Act.
As such, there are two regimes under which the Minister may cancel the visa of a New Zealand citizen where there has been criminal misconduct and as recently noted by the Full Court in Cheryala v Minister for Immigration and Border Protection [2018] FCAFC 43 at [42]:
The selection of one criteria rather than another as the occasion for an exercise of statutory power has been a deliberate choice made by the Commonwealth Legislature, at least in respect of s 501, as to the most apposite criteria of relevance to the particular class of decision under consideration.
While the powers under both ss.116(1)(e) and 501 may form the basis to establish a ground for cancellation where there has been criminal misconduct, broadly speaking, the power under s.501 requires a more serious level of offending. Relevantly, there are different review processes and consequences, depending on which regime is used. For instance, if a visa is cancelled under s.501, merits review lies with the General Division of this Tribunal[2] and the former visa holder will be precluded or limited from making a further application for a visa.[3] If a visa is cancelled under s.116, review is to the Migration and Refugee Division of this Tribunal[4] and does not of itself preclude or limit further applications for a visa.
[2] Section 500(1) of the Act. According to Item 2.2 of the President’s Direction ‘Allocation of Business to Divisions in the AAT’ dated 9 October 2017, matters not falling within the able at Item 2.1 are dealt with in the AAT’s General Division. While there may be a small category of visa cancellation decisions that could be dealt with in the Security Division (where there is a related security assessment application), in most cases visa cancellations not dealt with in the Migration and Refugee Division would be dealt with in the General Division.
[3] Section 501E of the Act; Reg. 2.12AA of the Regulations.
[4] Sections 336N, 338(3), 338(3A), 338(4), 348, 409, 411(1)(d) and 414 of the Act.
Given the applicant’s visa has been cancelled under both regimes and there is a labyrinth like relationship between the relevant provisions, it is relevant to explain the impact of the previous cancellation on the current decision and, most significantly, the impact on the exercise of discretion if the ground for cancellation is established.
The Minister may delegate to a person any of the Minister’s powers under the Act: s.496 of the Act. If satisfied that the ground for cancellation under s.116 is made out, the decision maker has discretion whether to cancel the visa. The decision maker must therefore proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances. The Act and Regulations do not specify any mandatory considerations that should be taken into account by the decision maker when exercising the discretion, nor has the Minister issued any directions under s.499 of the factors to be considered. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal should have regard to all relevant matters, including but not limited to, matters identified in the Department’s Procedures Advice Manual - PAM3 ‘General visa cancellation powers’ (PAM3).
The Departmental guidelines in PAM3 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;
(8)whether any international obligations would be breached as a result of the cancellation, and
(9)any other relevant matters.
Each of these matters, in so far as they are relevant to the circumstances in this case, is addressed below.
THE REVIEW APPLICATION AND PROCEDURAL ISSUES
On 1 November 2017, Mr Carr lodged an application for review of the delegate’s decision with this Tribunal. He attached the notification and the record of the decision. Mr Carr voluntarily departed Australia nine days later on 23 November 2017. By letter dated 13 February 2018, the Tribunal notified the applicant that the change in his circumstances may be relevant to the consideration of his application for review. The fact that the applicant has left Australia is significant. Even if the cancellation decision is set aside by the Tribunal, it does not alter the fact that the applicant’s visa has or would have ceased when he left Australia had it not been cancelled. Although it is relevant to note that the applicant would not have left Australia if his visa had not been cancelled.
The effect of the applicant leaving Australia will be dealt with in greater detail later in the Tribunal’s reasons.
Mr Carr appeared by telephone before the Tribunal on 21 February 2018 to give evidence and present arguments. He gave evidence about his personal background, criminal offending, mental health and the circumstances which gave rise to the cancellation of his visa. He did not dispute that he had been charged and convicted with certain offences in November 2017. The applicant explained that he had been carrying an antique rifle in the boot of his car when he was pulled over by police at a traffic stop. He says the rifle had been used in the Gallipoli Campaign and that he intended to donate it to the local Returned and Services League (RSL) club.
The Tribunal was also provided with the Department file which included the NOICC, the applicant’s response to the NOICC and the decision record of the delegate.
In November 2017, Mr Carr’s current partner provided the Tribunal with various documents in support of the application for review on the applicant’s behalf. These documents included letters of support from family and friends, an offer of employment, a letter from the applicant’s clinical psychologist and a letter from a community legal service which had previously provided the applicant with support in an unrelated matter.

The letters from the applicant’s family members indicate that he has a supportive extended family in Australia, consisting of parents, siblings, an aunt, a grandmother and his adult children. The letters from friends and family appear to indicate that the applicant has no knowledge of New Zealand and no family, support or connections except those here in Australia. They also indicate that the applicant has eight children who are Australian citizens, including two young sons aged five and six with his current partner. His current partner has also provided a letter of support.
A letter from the clinical psychologist dated 6 November 2017 indicates that the applicant has been diagnosed with Post Traumatic Stress Disorder (PTSD) and requires ongoing psychiatric treatment. The psychologist states that at the age of 10 the applicant ‘was abducted, tortured and raped’ and ‘he has experienced a pattern of behaviour consistent with PTSD and drug abuse.’ The psychologist observed that removal from support systems will led to a deterioration of the applicant’s mental health, specifically his PTSD symptoms.
The letter from the community legal service appears to have been provided in support of the Applicant’s earlier revocation request. It confirms that Mr Carr had sought support and assistance in relation to his participation in the Royal Commission into Institutional Responses to Child Sexual Abuse.
CONSIDERATION
Does the ground for cancellation exist?
The applicant’s visa was cancelled under s.116(1)(e)(ii) of the Act. Subsection 116(1)(e)(ii) provides that a decision maker may cancel a visa if satisfied that the applicant’s presence in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals. In this case, the delegate concluded that grounds for cancellation existed.
The task of the Tribunal on review is to make the correct and preferable decision, and in so doing, it considers matters afresh based on the material put before it. The Tribunal is not bound by the findings of the delegate.[5] In determining if the ground for cancellation exists, a question arises as to whether the Tribunal is limited to consideration of the facts and circumstances as they existed at the time of the delegate’s decision, or whether it is to consider the facts and circumstances at the time of its own decision. This question is determined by reference to the relevant legislative provision and their statutory context.[6]
[5] 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.
[6] Shi v Migration Agents Registration Authority [2008] HCA 31.
In respect of a review of a cancellation decision under s.116, the relevant time at which the facts and circumstances are to be assessed depends on the precise terms of the particular cancellation ground that is relied upon. Relevantly, s.116(1)(e)(ii), provides that the ground is established if the decision maker is satisfied the visa holder would be a risk. The words would be contemplate that circumstances could be altered by intervening events and invites consideration of the factual matters at the time of the Tribunal’s decision[7]. The wording of the provision does not contain a temporal element that confines the Tribunal’s consideration to the circumstances as they existed at the time of the delegate’s decision. Information about circumstances and events that occurred after the delegate’s decision will be relevant.
[7] Compare Shi v Migration Agents Registration Authority [2008] HCA 31 at [49] per Kirby J.
Accordingly, the question of whether the ground for cancellation exists under s.116(1)(e)(ii) must be assessed at the time of the Tribunal’s decision having regard to all information available to the Tribunal at that time.
Subsection 116(1)(e) is engaged where the applicant’s presence in Australia ‘is, or may be, would or might be a risk’. The first limb of the provision (‘is, or may be’) is addressed to circumstances where the applicant is present in Australia and the second (‘would or might be’) where the applicant is outside of Australia.[8] Given the assessment as to whether the ground for cancellation exists is to be determined as at the time of the Tribunal’s decision and that the applicant has left Australia, the grounds for cancellation are established if the applicant’s presence would or might pose a risk to the safety of an individual or individuals.
[8] Gong v Minister for Immigration and Border Protection [2016] FCCA 561 at [39] per Judge Smith.
When a visa holder is not present in Australia the ground for cancellation exists not only where the applicant would be an actual risk to safety, but also where the visa holder might be a risk.[9] It can arise on the possibility that some event occurred in the past.[10]
[9] Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014, p.24 at [13]. This was confirmed in Gong v Minister for Immigration and Border Protection [2016] FCCA 561 at [40]-[41] per Judge Smith.
[10] Gong v Minister for Immigration and Border Protection [2016] FCCA 561 at [41] per Judge Smith.
In determining whether the applicant would or might pose a risk to the safety of an individual or individuals, it is relevant to have regard to the nature of the offence and to draw a rational link to how the allegation poses a risk to the safety of an individual or individuals.
The evidence before the Tribunal about the applicant’s criminal offending was contained in the decision record and the applicant’s oral evidence. As previously indicated, the applicant did not dispute that he was convicted of several offences in November 2017. Those offences, which are outlined in the NOICC, included authority required to possess explosives, possession of tainted property and two counts of unlawful possession of weapons. The applicant told the Tribunal that the offences, of which he was convicted, arose out of a traffic stop and related to the possession of a rifle, bullets and a drivers licence which was allegedly not issued to the applicant. The applicant says that the rifle was an antique and not functional. He told the Tribunal that he intended to donate it to the local RSL.
In assessing the risk that the applicant’s past conduct poses to the safety of an individual or individuals, consideration of the nature of the offences is appropriate. The property offence is not serious in nature and is unlikely to pose a risk to the safety of an individual or individuals. By contrast, the offences relating to the unlawful possession of weapons are serious in nature. The applicant’s claims regarding the circumstances in which the offences occurred is not supported by independent and probative evidence. While I note that the applicant received a suspended sentence in respect of the unlawful possession of weapons offences, the fact of charges being laid against the applicant, his conviction on those charges and the length of the sentences imposed is an indication that he was assessed as being a risk to the safety of an individual or individuals.
In addition, the delegate’s decision indicates that the applicant has an extensive criminal history in Australia. He has been convicted of a number of other criminal offences, which range in seriousness. The fact that the applicant has engaged in certain conduct in the past leaves open the possibility that there would or might be a risk of such behaviour in the future.
I find that the applicant would or might be a risk to the safety of an individual or individuals. Accordingly, I am satisfied that the ground for cancellation in s.116(1)(e) exists. As that ground does not require mandatory cancellation under s.116(3), I must now consider whether the power to cancel the visa should be exercised.
How should the discretion be exercised?
General principles
In the exercise of a statutory discretion, the delegate, and on review the Tribunal, must have regard to matters specified in the Act or Regulations, and to any lawful directions given by the Minister. In addition, the Tribunal should have regard to lawful government policy unless there are cogent reasons to the contrary.[11]
[11] Re Drake v Minister for Immigration and Ethnic Affairs( Re Drake No 2) (1979) 2 ALD 634 discussed in Tarrant v Australian Securities and Investments Commission [2013] AATA 926 at [19] to [21].
In relation to the exercise of the discretion to cancel the visa, the Act and Regulations do not specify any matters that are required to be considered. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including, but not limited to, matters identified in the departmental policy.[12]
[12] Procedures Advice Manual - PAM3 General cancellation powers.
The matters to be considered in exercising the discretion should be assessed at the time of the Tribunal’s decision (refer above and Shi v Migration Agents Registration Authority [2008] HCA 31).
It is also relevant to have regard to effect of a review decision on the original cancellation decision when considering the exercise of the discretion.
In Kim v Minister for Immigration and Citizenship [2008] FCAFC 73, the Full Court held that if a cancellation decision is affirmed on review the original decision continues to operate from the date it was made. If the Tribunal sets aside the original decision and substitutes a new decision, the new decision ‘operates prospectively in the absence of the exercise of any power to back date the decision’ (as per Tamberlin J at [33]). There is no power in the Act or the Regulations to back date the review decision. Thus, a visa that has expired or has ceased by the time of the review decision will not be revived or reinstated if the decision is set aside. It is therefore those matters that impact the visa holder as a result of the cancellation, or the continuing effect of the cancellation, that will be relevant in assessing how the discretion is to be exercised.
When a visa has expired or ceased at the time of the review decision, otherwise than by reason of the cancellation (as in this case), the discretionary factors should be considered having regard to those supervening matters. For instance, the fact a visa that has expired or has ceased cannot be revived or reinstated is significant. Another factor that will be significant in such cases is whether the former visa holder will be precluded or limited in making future applications, namely whether there is any legislative bar or disadvantage by reason of the cancellation. Conversely, it may be relevant as to whether there is any advantage in future applications in setting aside a cancellation decision. If there is no such bar or disadvantage or, alternatively, advantage, discretionary factors such as hardship and international obligations will generally become less significant. The reasons for this are explained below in the consideration of each factor.
The purpose of the visa holder’s travel and stay in Australia
The applicant travelled to Australia as the holder of a Special Category (Subclass 444) visa, which was granted on 1 September 1994. The visa permits the applicant to remain in Australia while he is a New Zealand citizen.[13] Had the applicant’s visa not been cancelled it would have continued to permit him to remain living in Australia indefinitely, provided he did not depart from Australia.
[13] Clause 444.511 of Schedule 2 of the Regulations.
On 23 November 2017, the applicant voluntarily departed Australia and his visa would have ceased to be in effect at that time if it had not been cancelled.
The task of the Tribunal on review is to make the correct and preferable decision. The Tribunal may either affirm the decision under review, being the decision of the delegate to cancel the visa, or set aside and in substitution decide not to cancel the visa. Even if the Tribunal was to set aside the decision under review and substitute a decision that the applicant’s visa not be cancelled, it would not enable the applicant to re-enter and remain in Australia. The applicant’s visa ceased on his departure and the Tribunal’s decision cannot remediate this. In order to re-enter Australia, the applicant would need to be granted another substantive visa.
Accordingly, I find that this factor does not weigh against cancellation of the visa. Moreover, for the reasons outlined below, a decision to affirm the cancellation of the visa would not impede the grant of a substantive visa in the circumstances of this case and the applicant’s case is somewhat assisted by the fact he left Australia voluntarily.
The extent of compliance with visa conditions
There are no conditions attaching to a Special Condition (Subclass 444) visa.[14] As such, this factor is not relevant to my consideration.
[14] Clause 444.6 of Schedule 2 of the Regulations.
The degree of hardship that may be caused to the visa holder and any family members
It is accepted that the applicant’s departure from Australia has and will cause significant hardship to him and his family.
The applicant suffers from a serious mental illness. I accept the clinical psychologist evidence that the applicant’s departure will lead to a loss of his existing support structures and a deterioration of the applicant’s mental health, specifically his PTSD symptoms. I find that the applicant’s departure from Australia may cause psychological hardship to the applicant.
It is apparent from the evidence before the Tribunal that the applicant has extensive family connections in Australia. He is the father of eight children who are Australian citizens. He has a close relationship with his siblings and their families as well as his adult children and their families. The applicant’s parents, his grandmother and other relatives also reside in Australia. The applicant told the Tribunal that one of his adult children, his current partner and the children from that relationship have joined him in New Zealand. It is unclear from the applicant’s evidence whether they intend to remain in New Zealand with the applicant in the event that the cancellation decision is affirmed or are merely visiting for a short period. If the latter, his departure from Australia will result in separation from his partner and the two minor children, who are Australian citizens. It is accepted that the applicant’s departure from Australia will result in separation from his family and this is a significant emotional and psychological hardship for both him and his family.
The applicant told the Tribunal that he had an offer of employment in Australia and provided a letter from the prospective employer to that effect. The applicant says that he has been unable to secure employment in New Zealand and as a result is currently unemployed. It is accepted that the applicant’s departure may cause economic hardship. When questioned about whether he would seek to return to Australia or whether he had sought any advice on this issue, the applicant said he had not. The applicant said, and I accept, that he did not understand he needed a visa to remain in Australia. Nor did he understand he could seek to re-enter Australia even though his visa had been cancelled. The applicant was of the view, perhaps understandably, that if his review was successful this would allow him to return to Australia with his partner and children.
While it is clear the applicant would have remained in Australia if his visa had not been cancelled, the current hardship to the applicant and his family are directly attributable to the applicant’s voluntary departure. Setting aside the cancellation decision will not reinstate the applicant’s visa to allow him to return to and remain in Australia. Given the conclusions about the legal consequences of cancellation referred to below, this factor does not weigh against cancellation of the visa. In other words, even if the discretion is exercised in favour of the applicant it would have no impact on his current circumstances or his family. This factor, of itself, does not weigh against cancellation.
The circumstances in which ground of cancellation arose
The ground for cancellation arose because the potential presence of the applicant in Australia would or might be a risk to the safety of an individual or individuals. My reasons for forming that view are outlined above.
According to the primary decision record, which the applicant included with his application for review, the cancellation process was triggered when the Department received information from the relevant authorities that he had been convicted and sentenced in relation to certain offences.
Relevantly, the ground for cancellation under s.116(1)(e) arose in circumstances where there was an earlier mandatory cancellation of the applicant’s visa under s.501(3A) and subsequent revocation. This applicant previously had a ‘substantial criminal record’. This is not in dispute. He was effectively given a second chance by the revocation and the fact he has reoffended so soon after the revocation weighs in favour of the cancellation.
The applicant’s past and present behaviour towards the Department
As already noted, the applicant’s visa was mandatorily cancelled under s.501(3A) of the Act on the basis that he had a ‘substantial criminal record’ and, as such, did not pass the ‘character test.’ That decision was subsequently revoked, which would suggest that the applicant engaged with the Department and provided cogent reasons to support his application for revocation of the cancellation decision.
The applicant has also engaged with the Department by responding to the NOICC and providing information relevant to these proceedings. The applicant’s co-operative past and present behaviour towards the Department weighs against cancellation.
Whether there would be consequential cancellations under s.140
The material before the Tribunal does not indicate that there would be any consequential cancellations under s.140 of the Act as a result of the cancellation of the applicant’s visa. Accordingly, this factor does not weigh against the cancellation of the applicant’s visa.
Whether there are mandatory legal consequences
In determining whether to exercise the discretion to cancel the applicant’s visa, the consequence of the Tribunal’s decision to affirm or set aside the decision under review on a further grant of a visa to the applicant is highly relevant to the circumstances of this case.
This is because, as already noted, a decision to set aside or affirm will not have any practical impact on the substantive visa that was cancelled, it cannot be reinstated. The visa would have ceased, if it had not been cancelled, when the applicant left Australia.
A critical issue is whether there is any identifiable disadvantage to the applicant if the cancellation decision remains in effect or, conversely, advantage if set aside. Indeed a number of the other discretionary factors and how they should be assessed are contingent on this question.
Having reviewed the potential issues and the relevant provisions, I have concluded there is no identifiable disadvantage or hardship that arises from a decision to affirm the cancellation of the applicant’s visa in terms of the applicant’s eligibility to apply for or be granted a further substantive Subclass 444 visa. Nor would setting aside the decision remove any legislative bar or disadvantage to the applicant of his visa having been cancelled. This also means those factors such as hardship (referred to above) and the interests of the applicant’s children (referred to below) fall to be determined by reference to this factor.
The applicant’s visa would have ceased when he voluntarily departed Australia. As at the date of the hearing, the applicant had not applied for another substantive visa nor did he identify any particular visa that he intended to apply for. It is evident that this is because the applicant does not understand the effect of the relevant provisions under the Act and did not understand he could apply for a further visa to return and remain in Australia. This is not surprising given the provisions would be difficult for a non-lawyer to understand and the applicant does not have representation.

Under s.42(2A) of the Act, a New Zealand citizen can travel to Australia without a visa if he or she holds and produces a current New Zealand passport. Section 32 of the Act provides that New Zealand citizens are eligible to be granted a Special Category (Subclass 444) visa if they hold a New Zealand passport that is in force and, among other things, they are not a health or behaviour concern non-citizen.
Even if a New Zealand citizen is ‘behaviour concern’ because of previous misconduct as specified in s.5(1) of the Act, that person may still be eligible to be granted a Special Category visa if they are ‘in a class of persons declared by the regulations to be persons for whom another class of visa would be inappropriate’: s.32(2)(c) of the Act. Regulation 5.15A sets out the classes declared for the purposes of s.32(2)(c) and relevantly states that a person is covered by the subregulation if:
(a)   the Minister has, under subsection 501(3A) of the Act (person serving sentence of imprisonment), cancelled a visa held by the person; and
(b)   the person has made representations to the Minister in accordance with the invitation given by the Minister under subsection 501CA(3) of the Act; and
(c)   the decision to cancel the visa is revoked under subsection 501CA(4) of the Act; and
(d)   the Minister has not, under subsection 501BA(2) of the Act, set aside the decision to revoke the cancellation of the visa; and
(e)   since the person made the representations to the Minister mentioned in paragraph (b), no new grounds have arisen for the person to fall within the definition of behaviour concern non-citizen in subsection 5(1) of the Act, unless the only new ground that has arisen is the person's removal or deportation from Australia because of the decision to cancel the visa.
The applicant is a ‘behaviour concern non-citizen’ as that term is defined in s.5(1)(b) of the Act as he has been has been previously convicted of two or more crimes and sentenced to imprisonment for periods that add up to at least one year. These convictions were the subject of the first cancellation decision on character grounds on the basis that the applicant had a ‘substantial criminal record’.[15] This decision was subsequently revoked. The most recent convictions, which are the basis for the current cancellation decision, would not have engaged s.501(3A) because the applicant was not convicted of a crime with a sentence of at least one year. His sentence, which was fully suspended, was six months.
[15] Subsection 501(7) sets out when a person will have a ‘substantial criminal record’ and it includes where there a person is sentenced to a term of imprisonment of 12 months or more or where the person has been sentenced to two or more terms and the sentences total 12 months or more. This is in similar terms to ss.5(1)(a) and (b) of the Act.
Having regard to these provisions and to the circumstances of the applicant’s case, it is clear the applicant falls within s.32(2)(c) of the Act and is therefore eligible to be granted a Special Category visa. This is because the applicant is a ‘behaviour concern non-citizen’ by reason of his earlier criminal record, the Minister, or a delegate of the Minister, cancelled his visa under s.501(3A) of the Act on the basis of this record, that decision was revoked under s.501CA(4), the Minister has not set aside the decision to revoke under s.501BA(2) and since this time no new grounds have arisen for the person to fall within the definition of ‘behaviour concern non-citizen’. A new ground would have arisen under s.5(1) if the applicant had committed further offences after the first cancellation that would be characterised as giving him a ‘substantial criminal record’ but he did not. The Court adjudged his offending as relatively minor in nature. A new ground would also have arisen if the applicant had been removed or deported from Australia but he was not. He voluntarily departed.
The applicant would not be prevented from making a visa application on re-entry into Australia under s.48(1) as he would not have had a visa cancelled or refused ‘since last entering Australia’ within the meaning of the subsection.
A New Zealand citizen may nonetheless be refused a Special Category visa if he or she fails the character test under s.501 of the Act. The cancellation of the applicant’s visa under s.116(1)(e) would not of itself establish a failure of the character test. However, if the applicant travels to Australia and applies for a Special Category Subclass 444 visa, the Minister may refuse his visa under s.501(1) on the basis of his previous ‘substantial criminal record’.
While the Tribunal cannot predict the outcome of any such application, there is no evidence the cancellation itself would impede the grant of a further visa to the applicant. As such, there is no evidence that affirming the decision under review would disadvantage him. Nor is there evidence that setting the decision aside will provide the applicant with any practical or legislative advantage. Relevantly, refusal under s. 501(1) is discretionary and matters such as the previous revocation and any hardship to the applicant and Australian citizens, including his minor children, may be taken into account by the Minister.
In conclusion, this factor does not weigh against cancellation.
Whether any international obligations would be breached as a result of the cancellation
PAM3 requires the Tribunal to have regard to Australia’s obligations under relevant international agreements that would be breached as a result of the visa cancellation. Australia is a signatory to the UN Convention on the Rights of the Child 1989 (CROC) and the International Convention on Civil and Political Rights 1996 (ICCPR), both of which protect the rights of children and families.
Relevantly, articles 3 and 9 of CROC state:
3. In all actions concerning children … the best interests of the child shall be a primary consideration.
. . .
9. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. . .
Article 23 of the ICCPR states:
The family is the natural and fundamental group unit of society and is entitled to protection by society and the state.
Consistent with these international obligations, PAM3 sets out 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.[16]
[16] 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.
Mr Carr has eight children who are Australian citizens and are affected by the decision to cancel his visa. While the majority of those children are now adults, two still are minors. 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.[17]
[17] W157/00A v Minister for Immigration and Multicultural Affairs (2001) 190 ALR 55 at [81] per Lee J.
It is accepted that in this case it is in the best interests of the applicant’s children that they continue to have close contact with their father. The evidence from the applicant was that his partner and two children had relocated with him to New Zealand. I accept that if his partner and two children remain in New Zealand they will be separated from their extended family, including their grandparents, uncles and aunts. 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.
However, for the reasons previously outlined, setting aside the cancellation of the applicant’s visa would not operate to reinstate his visa. There is no evidence that affirming the cancellation decision will otherwise preclude or limit the applicant from successfully applying for the grant of a Special Category visa. As such, this factor does not weigh against the cancellation of the visa.
If it’s a permanent visa, whether the former visa holder has formed strong family, business or other ties in Australia
Given that the applicant’s Special Category (Subclass 444) visa is temporary in nature, this factor is not relevant.
Any other relevant matters
No other matters that are relevant to the exercise of the decision to cancel the visa have been identified.
CONCLUSION
Having found that the ground for cancellation exists under s 116(1)(e), I have considered whether the applicant’s visa should be cancelled. In considering this discretion I have had regard to, in brief, the following key matters:
(1) The visa has ceased and cannot be revived or reinstated, regardless of the outcome of the review; and
(2) There is no evidence that affirming the cancellation decision will otherwise preclude or limit the applicant from successfully applying for the grant of a Special Category visa, or, conversely, that setting aside the cancellation decision will deprive the applicant of any advantage he may otherwise have had in making an application to re-enter and remain in Australia under a subclass 444 visa.
For the reasons outlined above, the factors in PAM3 relating to the purpose of the visa, the degree of hardship, mandatory legal considerations and Australian international obligations are not impacted by the cancellation decision and therefore do not weigh for or against cancellation. The applicant’s past and present behaviour towards the Department weighs against cancellation but the circumstances in which the ground for cancellation arose weigh in favour of cancellation and are persuasive. The other factors are not relevant to the circumstances of this case.
Considering the circumstances as a whole, I am of the view that the discretionary matters weigh in favour of cancellation. I therefore conclude that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Special Category (Subclass 444) visa.
Jan Redfern
Deputy President

[2018] AATA 731

29 March 2018

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