Dickinson (Migration)

[2019] AATA 4709

Dickinson (Migration) [2019] AATA 4709 (25 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Warren William Dickinson

CASE NUMBER:  1900714

HOME AFFAIRS REFERENCE(S):          BCC2018/4520526

MEMBERS:P. Wood (Presiding)

P. Haag

DATE:25 July 2019

PLACE OF DECISION:  Melbourne, Victoria

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 25 July 2019 at 12:55pm

CATCHWORDS

MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – risk to the health or safety of individuals – criminal history – violence against former partners – breaches of intervention orders – family circumstances – sound employment history in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, s 116

CASES

Gong v Minister for Immigration & Anor [2016] FCCA 561
Howard v Minister for Immigration [2017] FCCA 2916

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 31 December 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 444 (Special Category) visa under s.116(1)(e)(i) of the Migration Act 1958 (the Act).

2. The delegate’s conclusion was based on the applicant’s criminal history[1] which included crimes of violence which victimised former partners; and that various courts found that it was necessary to grant a number of the applicant’s former partners the protection from him afforded by court ordered family violence intervention orders: the applicant breached many of those protective orders.

   [1] The applicant’s criminal history is set out in the delegate’s decision: see Tribunal file, folios 18 and 19

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the Subclass 444 (Special Category) visa should be cancelled.

4. The applicant was born in New Zealand in 1973; he is a 46-year-old citizen of New Zealand. The applicant first entered Australia on 15 May 2007 as the holder of a New Zealand passport and was granted a Subclass 444 (Special Category) visa on arrival. The applicant departed and re-entered Australia on a number of occasions. On 19 June 2016 the applicant last entered Australia as the holder of a New Zealand passport and was granted a Subclass 444 (Special Category) visa on arrival.

5. The Department was informed on 16 August 2018 by Victoria Police of the applicant’s criminal history. On 21 November 2018 the applicant was sent a Notice of Intention to Consider Cancellation under Section 116 of the Act (NOICC). This notice properly informed the applicant that the Minister was considering cancelling the Subclass 444 (Special Category) visa that was granted to him on 19 June 2016, and the information indicating the existence of the grounds for cancellation pursuant to s.116 of the Act. The applicant responded in writing to the NOICC.

6. The applicant appeared in person before the Tribunal on 9 May 2019 to give evidence and present arguments.

7. The Tribunal also received oral evidence from Leah Dickinson, Miriam (Mim) Lee and Anthony (Tony) Evangelou.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s Subclass 444 (Special Category) visa should be affirmed.

   consideration of Claims and evidence

9. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(e). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

10. A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would be or might be, a risk to the health, safety or good order of the Australian community, or a segment of the Australian community; or the health or safety of an individual or individuals.

11. The proper construction of s.116(1)(e) was considered by Judge Smith in Gong v Minister for Immigration & Anor [2016] FCCA 561 (8 April 2016). In deciding that case Judge Smith said at [40] “the fact that … [s.116(1)(e)] lowered the threshold [for cancellation of a visa] is as plain as a pikestaff”. He went on to say at [41] “Simply put, the fact that sub-s.116(1)(e) is engaged where the Minister is satisfied that a visa holder’s presence “may be a risk” to certain matters means that there does not have to be, as the applicant suggests, any direct, solid or certain foundation before the power to cancel a visa can arise. In other words, it can arise on the possibility that some event occurred in the past.” This construction of s.116(1)(e) was applied by Judge Burchardt in Howard v Minister for Immigration [2017] FCCA 2916 (29 November 2017). The Tribunal applies those principles in this review.

12. The delegate of the Minister in her reasons for decision, a copy of which the applicant provided to the Tribunal, made clear that the applicant’s criminal history, which included crimes of violence against members of the community, combined with the applicant’s history of committing multiple breaches of intervention orders granted against him for the protection of specific members of the community, demonstrated the existence of a “likeliness of the visa holder re-offending”[2] and that the applicant is or may be a risk to the Australian community.

    [2] Delegate’s reasons for decision, Tribunal file, folio 16

13. The Tribunal has had regard to the applicant’s criminal history which is conveniently set out in the delegate’s decision.[3] The Tribunal has also had regard to the evidence the applicant gave to the Tribunal about his criminal history. The applicant acknowledged that he pleaded guilty to the offences identified in the record of his criminal history; and, that he also pleaded guilty to the breaches of family violence orders recorded in his criminal history. The applicant confirmed that an alleged contravention of a family violence order was struck out in the Magistrates’ Court of Victoria at Sunshine, Victoria on 7 December 2018.

    [3] Tribunal file, folios 18–20

14. Given the applicant acknowledged in evidence that his plea, in respect to each charge recorded in his criminal history was guilty, and that he did not challenge the accuracy of his criminal history as it appears in the delegate’s decision, the Tribunal accepts as accurate the record of the applicant’s criminal conduct; and, that the family violence orders identified in the record were made against the applicant; and the applicant’s recorded contraventions of those orders occurred.

15. The Tribunal has also had regard to the contents of four statutory declarations provided to the Tribunal by four women. According to the statutory declarations each declarant knew the applicant. During different periods of time three of the women had been involved in an ongoing intimate relationship with the applicant. The applicant had contact with the fourth woman in a caravan park and via telephone calls, voicemail messages and text messages. According to each of the statutory declarations each of the women remain fearful of the applicant because of his previous behaviour.

16. The statutory declarations referred to above form part of the Tribunal file. Copies of the statutory declarations were not provided to the applicant; and, the identity of each of the women who made the statutory declarations was not disclosed to the applicant. One of the women had previously provided similar information to the Department. This information was the subject of a determination by the delegate of the Minister made pursuant to s.376 of the Act. The delegate determined and certified accordingly that:

    Disclosure of folio 135 of file number BCC2018/4520526 would be contrary to the public interest because it may disclose, or enable a person to ascertain the existence or identity of, a confidential source of information.

17. On 23 May 2019, pursuant to s.359A of the Act, the Tribunal wrote to the applicant and informed him of the existence of the certificate and the information alleged against him. The Tribunal informed the applicant that the Tribunal’s preliminary view is that the certificate is valid. Further, the applicant was informed the Tribunal has discretion whether to disclose the information to the applicant, having regard to the reasons advanced by the delegate of the Minister for issuing the certificate, and any comments the applicant may provide to the Tribunal in respect to the validity of the certificate. Furthermore, the Tribunal informed the applicant of the gist of the information protected by the s.376 certificate.

18. At the request of the applicant, the Tribunal granted him an extension of time to respond. The applicant, by means of a signed set of submissions dated 17 June 2019, responded to the Tribunal’s invitation to comment on the validity of the certificate. The applicant stated that he “officially disagree[s] in reference to the certificate made pursuant to s.376.”[4] The applicant stated he did not know the contents of the file and wanted an opportunity to cross-examine each of the women who made the statutory declarations. The Tribunal is of the view that the applicant has been informed of the gist of the information provided in the statutory declarations and he has been afforded the opportunity to consider and respond to that information. The applicant provided his response by way of the submissions already referred to, and dated 17 June 2019.

    [4] Tribunal file, folios 94–95

19. The Tribunal is satisfied the s.376 certificate is valid. The Tribunal has no power to enable the applicant to cross-examine any of the women who provided information to the Tribunal. The Tribunal does have the power to summon a person to appear before it to give evidence (s.363(3)(a)), but the applicant did not make such a request and in all the circumstances the Tribunal decided not to exercise its discretion to summon any of the women.

20. The Tribunal is of the view the applicant was given a fair opportunity to appreciate the gist of the information provided against him in each of the statutory declarations, and a fair opportunity to consider that information and respond to it. The applicant availed himself of that opportunity. In balancing the right of the applicant to know what has been put against him and to respond to it, against the public interest in preserving the confidentiality of the women who provided the information, and particularly so because each of the women declared they are living in fear of the applicant, and they have suffered physical and/or emotional harm as a result of the applicant’s behaviour, the Tribunal is satisfied it should not exercise its discretion in favour of lifting the confidentiality certificate, or providing to the applicant further information.

21. The applicant was informed of the gist of the information provided by the four women in the following terms:

    The Department’s file contains an allegation made against you by a former partner. The particulars of the information are:

    • you have been charged with threats to kill, injure and unlawful assault, including receiving 8 months jail for violating probation by hitting a former partner and abusing your probation officer;

    • you have had more than 11 intervention orders against you since your arrival in Australia;

    • multiple women and your father have obtained intervention orders against you;

    • that you have told people that you are “out to get” persons who have obtained intervention orders against you;

    • multiple women who have obtained intervention orders against you continue to live in fear of you; and

    • that you are a threat to the community, women, children and animals.

    Further, the Tribunal file also contains allegations made against you by various
    persons.

    The particulars of the information are that:

    • a woman was in an intimate relationship with you and as a consequence of
     physical and emotional violence you inflicted upon her she was granted an
    intervention order to run for five years expiring in 2021. This person lives in fear of
    you and believes that you are an ongoing threat to her health and safety. This is
    supported by 21 photographs (of a personal nature) depicting multiple injuries in
    the form of bruising, swelling and scratches which it is said you inflicted;

    • during the course of a previous relationship, you were threatening towards your
    former partner and assaulted her. At the end of the relationship, you threatened to
    kill the former partner, attempted to unlawfully enter her house, threatened to
    assault her and cause damage to her home. Following this, the former partner
    obtained an intervention order against you and continues to live in fear for her
    health and safety;

    • during the course of a previous relationship, you were witnessed to have instilled
    fear into strangers by driving dangerously and abusing passers-by, you threatened
    to kill this person including threatening to use a firearm to kill her, to poison her
    animal and to assault her child. It is also asserted that you have assaulted your exwife,
    son and your father obtained the New Zealand equivalent of an intervention
    order against you. As a result of this, the former partner obtained an intervention
    order against you and continues to live in fear for her health and safety;

    • that you harassed and made threats to persons known to you in a caravan park
    and via telephone calls, text messages and voicemail resulting in a proceeding in
    the Magistrates Court of Victoria at Ballarat; and

    • that you have driven a truck whilst under the effects of marijuana and on a different
    occasion have knowingly attempted to use your truck to force a vehicle driven by
    another person known to you off the road.

    This information is relevant to the review because it relates to the Tribunal’s
    assessment as to whether you are or may be, or would or might be, a risk to:

    •The health, safety or good order of the Australian community or a segment of the
    Australian community; or

    •The health or safety of an individual or individuals.

22. The Tribunal will now address in summary form the gist of the applicant’s responses to the foregoing information.

23. The applicant admitted that he was the subject of the intervention orders referred to in the Department’s file. The applicant assumed the 11 intervention orders were orders in addition to the intervention orders the Department, and by implication the Tribunal, is aware of. The Tribunal accepts this claim and will only have regard to the intervention orders identified in the delegate’s decision; they are the orders the Department is aware of.

24. The applicant accepts that the applicant’s father was granted an intervention order against the applicant, and that numerous women have been granted intervention orders against him. In summary, the applicant says he has put these events behind him and he won’t have any further contact with the people who obtained these protective orders.

25. The applicant denies that he told anyone that he is “out to get them”.

26. In relation to the women who have previously obtained intervention orders against the applicant, and have declared that they continue to live in fear of him, the applicant says they have nothing to fear because he has no intention of contacting them again and he is now living in a stable relationship.

27. The applicant denies he is a threat to the community, women, children and animals. The applicant says he is now living in stable relationship and a household which includes pets, and that he is occupied as a heavy vehicle driver.

28. The applicant admitted that he was sentenced to imprisonment in October 2017 as a result of inflicting injury on a woman with whom he was involved in an intimate relationship, and persistently contravening a family violence order made for her protection from him. The applicant now says that that relationship is behind him, he was imprisoned for the crime and released. He asserts that he has changed, realised his wrongdoing, and will not reoffend.

29. The applicant denies that he made any threats to anyone in a caravan park. The applicant claims the woman who made the caravan park allegations against him applied for an intervention order to protect herself and her daughter from the applicant. The applicant in evidence, named the daughter, and by extension her mother, the woman concerned in the alleged events in the caravan park. The applicant claimed the applications for the intervention orders were struck out because the person seeking the orders could not provide any evidence in support of them. The applicant asserts he is the one who was being harassed by the woman concerned. The applicant provided a certified court extract dated 14 July 2017.[5] The extract relates to an application for the intervention order for the benefit of the persons named by the applicant.

    [5] Tribunal file, folio 92

30. Upon reading the certified court extract it is apparent the court did not - as the applicant claims - strike out the application referred to in the preceding paragraph. The application was withdrawn upon Mr Dickinson, the respondent to the application for the intervention order, giving an acceptable good behaviour undertaking to the court. The court order included granting to the applicant for the intervention order a right to reinstate her application in the event the respondent failed to honour his undertaking. The applicant’s incorrect description of what occurred in the application for an intervention order, and his failure to disclose the undertaking he gave to the court, and the right of the applicant for the order to reinstate the proceeding if the applicant breached his undertaking, is a matter of concern to the Tribunal. In the context of the applicant’s repeated breaches of the law, and breaches of protective orders granted to women who have associated with him, the incomplete evidence the applicant provided to the Tribunal indicates to the Tribunal the applicant is an unreliable witness, and that he does not regard as sufficiently important his undertakings to a court, and the rule of law.

31. The applicant’s history of committing crimes of violence against women and breaching family violence protection orders is of particular concern to the Tribunal. And especially so, in the case of a woman involved in an intimate personal relationship with the applicant, who suffered physical and emotional harm at his hands, a court saw fit to grant her the protection of an intervention order of five years’ duration, expiring in 2021. Bearing in mind the applicant’s claim he will not breach that order, the applicant’s criminal history demonstrates he has breached similar protective orders in the past. This information weighs heavily in favour of a conclusion the applicant may be a risk to the health or safety of the individual who is the beneficiary of that order, or to the individuals who were the beneficiaries of now expired intervention orders, but who continue to live in fear of the applicant. In reaching this conclusion the Tribunal has had regard to the applicant’s claim to be a reformed person, supported by his partner Leah Dickinson’s evidence and her written material, her mother and stepfather’s written character reference,[6] the evidence and written reference provided to the Tribunal by Mr Dickinson’s employer (ANT Transport, Mr Anthony Evangelou), and the evidence, and written reference, provided by prison outreach worker Miriam (Mim) Lee.[7]

    [6] Department file, folio 85

    [7] Ms Lee and her husband, George, also co-authored a letter of support dated 3 May 2019, together with a separate undated letter, which the Tribunal has read and had regard to.

32. The Tribunal is concerned that in evidence the applicant sought to qualify the pleas of guilty he entered to the charges that appear in his criminal history record. Except for the offences for which the applicant was imprisoned for eight months in 2017, the applicant indicated to the Tribunal in various ways, that he only pleaded guilty because he was advised to do so in each case by his legal representative. The failure of the applicant to accept the admissions of guilt reflected in his pleas of guilty is inconsistent with the applicant’s claims of remorse for his wrongdoing. It also reflects a lack of insight into the harm that was suffered by the victims of his crimes, including breaches of family violence orders. The Tribunal is not satisfied the applicant’s guilty pleas demonstrate genuine remorse, or amount to evidence the applicant will not again harass, threaten, or commit acts of violence against women in the future.

1. After considering all of the foregoing matters, the Tribunal is satisfied the applicant 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. Specifically, the Tribunal is satisfied the applicant may be a risk to the health or safety of the woman who is the beneficiary of the current intervention order and to the individuals who were the beneficiaries of intervention orders, now expired, but who continue to live in fear of the applicant.

2. For the foregoing reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the Subclass 444 (Special Category) visa should be cancelled.

   Consideration of discretion

3. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

   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

4. According to the applicant’s evidence before the Tribunal, he first travelled to Australia in 2007 for the purpose of visiting a truck show in Brisbane, Queensland. He stayed for about eight days and then returned to New Zealand. In 2008 the applicant again travelled to Australia. He stayed for about three months and then returned to New Zealand; according to the applicant he returned to Australia in September or October 2008, after approximately six months in New Zealand. As is set out above, the applicant was granted his most recent Subclass 444 (Special Category) visa when he last arrived in Australia on 19 June 2016.

5. According to the applicant’s evidence he is a hard worker; and has a solid record of employment in Australia where he has worked in mines, grape harvesting and, for 11 years as a truck driver. The applicant holds a Victorian Heavy Vehicle Driver Licence.[8] The applicant is currently employed by ANT Transport, located in Laverton North, Victoria. The sole director of that private business, Mr Anthony Evangelou, provided a letter of support and gave supporting evidence before the Tribunal. He told the Tribunal that the business is a small family-run enterprise which presently has 22 employees. The Tribunal has given regard to Mr Evangelou’s letter and his evidence. It is evident that Mr Evangelou holds the applicant in high regard and he is a valued employee/truck driver in that business. The applicant told the Tribunal that he is enjoying his employment at ANT Transport, and he is proud of his contribution to the business. The applicant contends that his sound employment history in Australia and, in particular the contribution his truck driving makes at ANT Transport, is a reason for his Subclass 444 (Special Category) visa not to be cancelled.

   [8] Tribunal file, folio 27

6. The evidence before the Tribunal demonstrates ANT Transport continued to function whilst the applicant was in prison for eight months, and there is no evidence which demonstrates the work performed by the applicant at the transport company is critical to operations of the company. The evidence indicates the applicant is a highly skilled and readily employable truck driver. This is supported by the written references provided by Mr Ray Roeby from Boral Cement Ltd and Michael Dornan from PQ Australia. There is no evidence of the applicant being unable to work in New Zealand.

7. The Tribunal has had regard to the applicant’s claim, that the absence of his income from the household budget supporting his partner Leah Dickinson and her five children while he was in prison, was “financially challenging” for Ms Dickinson.[9]

   [9] Tribunal file, folio 53: the statement the applicant provided to the Tribunal

8. The applicant and Ms Dickinson met on 2 February 2017 by chance, when they were driving in separate vehicles on a country highway and, as the Tribunal understands from Ms Dickinson’s evidence, he signalled for her to pull over, she did so at a vehicle stop and they exchanged telephone numbers. They are now engaged to be married in February 2020.

9. In evidence Ms Dickinson informed the Tribunal that her children are aged 5, 9, 12, 14 and 16. In recent years Ms Dickinson has trained and worked as a Division II registered nurse (previously known as an enrolled nurse). She altered her employment arrangements to enable her to support the applicant while he was in prison. She moved to casual work as a nurse, and supported the house from that work, combined with savings and child support provided by the father of the children. The Tribunal notes Ms Dickinson’s evidence that since separation, the children’s father has always provided child support payments for his children. The Tribunal notes the applicant and Ms Dickinson had known each other for about 11 months before the applicant was imprisoned for eight months. There is no evidence that Ms Dickinson and the children were suffering financial hardship at the time she met the applicant; that they suffered financial hardship after the applicant was imprisoned; or that they would suffer financial hardship if the applicant’s Subclass 444 (Special Category) visa is cancelled. The evidence does not demonstrate there is a compelling need for the applicant to contribute to the financial support of Ms Dickinson and her five children, or that any financial contribution the applicant may make to supporting Ms Dickinson and her children constitutes a compelling need for the applicant to remain in Australia.

10. The Tribunal accepts the claim made by both the applicant and Ms Dickinson that they are involved in a close personal relationship and that they are engaged to be married. They both claim they will be distressed if the applicant is required to leave Australia. Ms Dickinson also claims she experienced depression, and that her children were distressed because they were separated from the applicant during his imprisonment. The Tribunal notes here the evidence given by Ms Dickinson that she would not move to New Zealand to be with the applicant in the event his Subclass 444 (Special Category) visa remained cancelled. The reasons for not doing so were that she doesn’t have a passport, and the father of the children would not give permission for the children to live in New Zealand. The Tribunal infers from this evidence that Ms Dickinson and her children would get on with their lives in Australia if the applicant’s Subclass 444 (Special Category) visa is cancelled, and after a period of adjustment, would do so, as they had done before Ms Dickinson met the applicant in February 2017. At that time Ms Dickinson and her children were living together and had been separated from the children’s father for three years. The Tribunal is not satisfied the applicant’s relationship with Ms Dickinson and her children constitutes a compelling need for the applicant to remain in Australia.

11. Further, the Tribunal recognises that the applicant and Ms Dickinson’s relationship may cease, but if this was to occur the Tribunal does not consider the avoidance of the cessation of the relationship is a compelling reason for the applicant to remain in Australia.

12. In summary the applicant claims he does not have a close relationship with his family in New Zealand or, in particular, his son. Nevertheless, the applicant has friendships in New Zealand. He told the Tribunal he has returned to New Zealand when required, including three times in one month in early 2014. He gave examples of occasions which have taken him back to New Zealand, including a scout reunion and the funeral of the mother of his best mate. The applicant says he was a pallbearer at the funeral. The applicant is an independent, able-bodied person; he is an experienced, well-qualified and capable truck driver. There is no evidence available to the Tribunal which demonstrates the applicant would be unable to re-establish himself in New Zealand and gain employment there. The Tribunal is not satisfied the applicant’s potential circumstances in New Zealand constitute a compelling need for the applicant to remain in Australia.

13. Overall, this consideration supports the cancellation of the applicant’s Subclass 444 (Special Category) visa and the Tribunal gives it some weight.

    The extent of compliance with visa conditions

14. There are no conditions that attach to the applicant’s Subclass 444 (Special Category) visa.

15. There is no evidence before the Tribunal that the applicant has breached any of the conditions of his present bridging visa.

16. The Tribunal finds this consideration weighs against the cancellation of the applicant’s Subclass 444 (Special Category) visa and the Tribunal gives it some weight.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the applicant and any family members

17. The applicant may suffer some degree of financial hardship in relocating to New Zealand. There is no evidence the applicant holds any assets in Australia except household furniture that Ms Dickinson moved to her home while the applicant was in prison. Ownership of those household assets is not evidence of financial hardship the applicant may suffer if his Subclass 444 (Special Category) visa remains cancelled. The applicant may suffer some degree of financial hardship as a result of losing his employment as a truck driver in Australia nevertheless the applicant is a citizen of New Zealand accustomed to living there, and according to the evidence is a readily employable truck driver. There is no evidence which demonstrates the applicant would not be able to establish himself in employment in New Zealand and be financially self-supporting.

18. There is no evidence before the Tribunal demonstrating the applicant would suffer genuine psychological hardship caused by resuming residence in New Zealand. The applicant provided to the Tribunal a psychological assessment dated 12 September 2017 signed by Dr Aaron Cunningham, forensic psychologist. That report was prepared for the purposes of prior court proceedings. The report opines that stable employment, a stable relationship and professional treatment, are all protective factors which may reduce the applicant’s risk factors within the community, and improve his psychological functioning. The report does not demonstrate the applicant would suffer psychological harm if he is required to return to New Zealand. The Tribunal accepts the applicant may suffer some degree of emotional upset as a consequence of leaving his employment, and ceasing to live with Ms Dickinson and her children. Nevertheless, the applicant is a middle-aged, independent and readily employable man who is a citizen of New Zealand, and he has friends in New Zealand, including, according to his evidence, his best male friend.

19. The Tribunal accepts Ms Dickinson is likely to suffer a degree of emotional and perhaps psychological hardship, in the event that the applicant was obliged to return to New Zealand. The report provided by Ms Dickinson’s general practitioner Dr John Fotakis and dated 3 December 2018 indicates Ms Dickinson was distressed, sleep deprived and felt depressed, teary and emotional as a consequence of the applicant’s incarceration.[10] There is no evidence the applicant’s general practitioner referred Ms Dickinson for psychiatric or psychological treatment, or that he considered that she required a remedial treatment plan. The Tribunal notes and in evidence to the Tribunal, Ms Dickinson was unequivocal in informing the Tribunal she would not follow the applicant to New Zealand, but that she would remain in Australia and continue caring for her children. The Tribunal is not satisfied on the evidence and information available to it, that Ms Dickinson would be caused a significant degree of emotional or psychological hardship as a consequence of the applicant returning to New Zealand.

    [10] Departmental file, folio 65

20. Dr John Fotakis referred to Ms Dickinson’s children in his report.[11] He indicated Ms Dickinson’s children have been affected by the applicant’s absence because he was at that time in custody, and that they were “quite upset.” The report is remarkable for its brevity and in that it does not refer to any of the five children individually, or that they are his patients or that he examined any one of them for the purposes of the report. Consequently the Tribunal gives little weight to this aspect of the report. The children, one or more, may be upset by the applicant’s absence from Australia, nevertheless, both of their parents are in Australia, their father is providing child support, and their mother is caring for them day to day. The evidence does not demonstrate the children will suffer a degree of emotional or psychological hardship that would weigh in favour of the applicant’s Subclass 444 (Special Category) visa not being cancelled.

    [11] Departmental file, folio 65

21. The Tribunal finds this consideration weighs against cancellation of the applicant’s Subclass 444 (Special Category) visa and the Tribunal gives this consideration some weight.

    Circumstances in which ground of cancellation arose

22. According to the delegate’s decision, on 16 August 2018, the Department was informed by Victoria Police the applicant was charged with certain criminal offences, and the court outcomes relating to those charges were included in the information. The information provided to the Department was reproduced in the delegate’s decision; that information is further reproduced below.

23. Additionally, Victoria Police informed the Department the applicant’s most recent criminal conduct resulted from him breaching a final intervention order which was served on him on 19 December 2016, and that order remained operative until 2021.

24. The applicant in his evidence to the Tribunal was asked to comment on the offences in his criminal history. He informed the Tribunal he pleaded guilty to each of the charges recorded in his criminal history.

25. In relation to the August 2012 charges, the applicant informed the Tribunal that despite his plea of guilty, he denied that he assaulted or injured the victim of that crime. The applicant volunteered the name of the victim; she is a woman with whom the applicant was involved in a relationship. The applicant claimed his lawyer advised him to plead guilty and that’s the reason he did so.

26. In relation to the November 2012 charge the applicant volunteered to the Tribunal the name of the victim; she was also the subject of the August 2012 charges. Despite the applicant’s plea of guilty, he again asserted to the Tribunal that he did so because his lawyer told him to plead guilty. And to mitigate his own culpability, the applicant claimed the victim of his crime was contacting and harassing him.

27. In relation to the November 2016 charges, the applicant volunteered the name of the victim; she is a woman with whom he was involved in a relationship. In respect to these charges, the applicant claimed he pleaded guilty to crimes he did not commit, because his lawyer told him to do so.

28. In relation to the October 2017 court hearing concerning the breach of the Community Corrections Order (CCO) made in November 2016, the applicant again sought to shift responsibility for his circumstances to someone else. In this case he in part attributed his breach of the CCO to his case manager: he did not see eye to eye with him. The applicant claimed that he was working shift work at that time and his case manager failed to facilitate the applicant’s compliance with the order. In contrast to this equivocation, the court found the applicant breached the order.

29. In relation to the October 2017 charge of intentionally causing injury, threatening to damage property, threatening to inflict serious injury, contravening family violence intervention orders and persistent contravention, the applicant again sought to attribute some responsibility to his victim. The applicant volunteered the name of his victim; she is a female with whom he was involved in a relationship. The applicant asserted that the woman concerned assaulted him; nevertheless, the applicant admitted to the Tribunal that he hurt her.

30. As referred to above, the certified court extract provided by the applicant makes clear that the December 2018 matter was withdrawn upon Mr Dickinson giving a good behaviour undertaking to the court. In relation to this matter, it is sufficient for the Tribunal to refer to its remarks at paragraph 30 above.

31. The inconsistency between the applicant’s guilty pleas in respect to criminal charges, and his equivocation in that regard before the Tribunal, and his attempts at blaming his female victims, his legal representatives and his case manager for breaching his CCO is unconvincing and concerning. The applicant’s evidence demonstrates a lack of insight into the harm that his conduct had upon his female victims, the gravity of his offending, and it reflects adversely upon the credibility of his evidence generally. That evidence also reflects adversely on the applicant’s claim to have learned his lesson, and that he is a reformed person who offers no future threat to the safety of any woman with whom he may have been involved, or be involved, or become involved in a relationship; the good order of the Australian community, and members of the Australian community.

32. The applicant claims that after being psychologically assessed in 2017 by Dr Aaron Cunningham he is now informed about the cause of his violent behaviour, he is taking medication to control his mental health conditions; consequently, he is not a current risk to anyone. The applicant provided a copy of that report to the Tribunal which the Tribunal has read and had regard to. The report is dated 12 September 2017; coincidently, the report addresses some aspects of the circumstances that contributed to the decision of the delegate to cancel the visa.[12]  

    [12] Tribunal file, folios 50–52 (see back of folio 54 Dr Cunningham’s resume)

33. The report addresses the applicant’s offending behaviours against a woman with whom he was involved in a relationship in 2017. Dr Cunningham opines the applicant’s criminal behaviour was driven by two deep-seated and long-standing psychological conditions from which the applicant is suffering namely, Persistent Depressive Disorder, presenting as chronic depressed mood that is prone to escalations into Major Depressive Episodes; and, Autism Spectrum Disorder which presents as difficulty in adjusting to change and stress.

34. The court proceeding in which the applicant relied on Dr Cunningham’s report was concerned with charges of “contravention of Community Corrections Order, use carriage service to harass and assault offences.” Dr Cunningham was of the opinion that the applicant suffered from depression, and that his depression stems from childhood abuse to which he was exposed in the family home. Difficulties experienced by the applicant during his life aggravated his psychological condition, and his inability to maintain stable relationships. In the opinion of Dr Cunningham, the applicant has only limited capacity to adapt to change, regulate his emotions and understand the thoughts and feelings of others. Further, Dr Cunningham opines that the applicant’s emotional impairments contribute to his relationship problems, and violent behaviour.

35. Dr Cunningham’s diagnosis identifies and explains the presence of a tendency within Mr Dickinson’s psychological state to threaten people in the community with harm, and subject them to physical and psychological harm.

36. In terms of treatment, Dr Cunningham was of the opinion the applicant would benefit from ongoing treatment for depression, engaging with a men’s behavioural change program, a stable relationship and employment. These therapies and activities, in the opinion of Dr Cunningham, would reduce the risk of the applicant inflicting harm on members of the community. Dr Cunningham also noted at the time of his report the applicant reported to him that he was taking the prescription drug fluoxetine for stress relief.

1. The Tribunal notes with concern that a reduction in the risk of the applicant causing harm to others referred to by Dr Cunningham in his report was not demonstrated convincingly; it falls well short of expressing an expert opinion that the applicant will be assisted by medication and community supports (stable relationship and employment), to the extent that he may not be, at the time of this decision, or in the foreseeable future, a risk to the health or safety of the woman who was the subject of the October 2017 charges, and other women, and members of the community.

2. Dr Cunningham’s report opines the applicant is suffering from long-term psychological conditions that contributed to him engaging in unlawful acts of violence against a woman in a relationship with him.

3. Dr Cunningham’s report demonstrates the applicant is predisposed to committing acts of violence against members of the community. The treatment referred to by Dr Cunningham is more akin to a personal management plan, rather than a medical treatment plan that demonstrates to any acceptable degree of certainty, that the applicant’s psychological conditions will not again lead him to commit acts of violence against women in the Australian community who may have been, or may become involved in an intimate personal relationship with him, or who may encounter him in the wider community in circumstances he finds stressful.

4. The applicant provided to the Department a copy of a document titled ‘Certificate of Completion, Be The Change.’[13] The Certificate indicates that in 2017 and 2018 the applicant attended 12 sessions comprising components of a behaviour change course leading to a certificate of completion. The subject matter of each of the 12 sessions is described in the Certificate. None of those subjects, either individually or collectively, address the psychological disorders diagnosed by Dr Cunningham, or purport to treat those disorders.

   [13] Departmental file, folio 94

5. The applicant also provided to the Department a copy of a document titled ‘Certificate of Completion’ provided by Relationships Australia.[14] The Certificate is dated 19 April 2018, and indicates the course was a one-day course conducted on that day. The four topics covered by the course are identified in the Certificate. The Certificate does not, nor does it purport to, treat the psychological disorders that were diagnosed by Dr Cunningham.

   [14] Department file, folio 90

6. Notwithstanding the report of Dr Cunningham, the evidence considered as a whole does not demonstrate the circumstances in which the ground for cancellation arose were beyond the applicant’s control.

7. On the basis of the foregoing consideration of the circumstances in which the grounds for cancellation arose, the Tribunal is of the view the applicant may be a risk to the health or safety of the women who provided statutory declarations to the Tribunal, and in particular the woman who currently holds an intervention order against the applicant, and to the good order of the Australian community. On this latter consideration, the Tribunal notes the applicant has displayed a disposition not to allow the law and protective court orders to govern his behaviour, and this disposition, in the view of the Tribunal, may pose a risk to the good order of the Australian community.

8. The Tribunal finds this consideration supports the cancellation of the applicant’s Subclass 444 (Special Category) visa and the Tribunal gives this consideration the greatest weight.

   Past and present behaviour of the visa holder towards the Department

9. The applicant participated in the visa cancellation process by providing a response to the NOICC, as he was invited to do, and there is no evidence of past or present adverse behaviour by the applicant toward the Department.

10. The Tribunal finds this consideration weighs against the cancellation of the applicant’s Subclass 444 (Special Category) visa and the Tribunal gives this consideration some weight.

    Whether there would be consequential cancellations under s.140

11. There are no persons in Australia whose visas will be subject to cancellation under s.140 of the Act.

12. The Tribunal finds this consideration is neutral and does not weigh in support of or against the cancellation of the applicant’s Subclass 444 (Special Category) visa.

    Whether there are mandatory legal consequences to a cancellation decision

13. If the applicant’s Subclass 444 (Special Category) visa remains cancelled, unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no evidence to suggest that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be an unlawful non-citizen and subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without intervention by the Minister. The Tribunal accepts that in relation to many visa categories, the applicant may be subject to an exclusion period.

14. The applicant may be permanently excluded from the grant of a Subclass 444 (Special Category) visa in the future if he becomes a ‘behaviour concern non-citizen’ as defined in s.5(1). This is because s.32 provides that a criterion for a Special Category visa is that the non-citizen not be a ‘behaviour concern non-citizen’. A ‘behaviour concern non-citizen’ includes where the applicant has been removed or deported from Australia. Therefore, if the applicant is detained under s.189 due to being unlawful and then removed under s.198, he would not be able to return to Australia using the Subclass 444 (Special Category) visa option for New Zealanders. However, at present, the applicant is the holder of a Bridging E visa and, if he were to depart holding a Bridging E visa, he may not be subject to the same restriction (although he could have any subsequent Subclass 444 (Special Category) visa cancelled again).

15. Overall, the Tribunal finds this consideration weighs against the cancellation of the applicant’s Subclass 444 (Special Category) visa and the Tribunal gives this consideration some weight.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

16. Australia is a signatory to, and has ratified, a range of international agreements. Those most relevant to the cancellation of visas include the Convention on the Rights of the Child (CRC) and the International Covenant on Civil and Political Rights (ICCPR).

17. The Department policy, as expressed in PAM3, on the consideration that must be given to these international obligations is 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).[15]

    [15] Extracted from the Department’s “Legend” database concerning General visa cancellation powers.

18. The applicant refers to his partner’s children as his own children: they are not his biological children. It is in these circumstances that the Tribunal has had regard to Australia’s obligations under the Convention on the Rights of the Child and the ICCPR as part of its consideration of the best interests of any children in Australia affected by the cancellation of the applicant’s Subclass 444 (Special Category) visa. This means the impact the cancellation of the applicant’s Subclass 444 (Special Category) visa will have on the applicant’s partner’s children, and the family unit, becomes a primary consideration for the Tribunal in weighing overall whether the discretionary considerations weigh against or support the cancellation of the applicant’s Subclass 444 (Special Category) visa.

19. The applicant’s relationship with his partner’s children began sometime in 2017 after he met their mother in early February 2017. In 2017-18 the applicant spent eight months in prison and away from the children. He was released in 2018. The applicant also spent time in immigration detention after he was released from prison in 2018. The children’s mother is their primary carer. The children’s father has been honouring his child support obligations from the time he separated from Ms Dickinson, approximately three years before she met the applicant. Relevantly, Ms Dickinson informed the Tribunal that the children’s father would not consent to his children living in New Zealand. Acknowledging the children may miss the applicant’s company if he resumes living in New Zealand, nevertheless, the evidence before the Tribunal, including the relevant evidence provided by the applicant, the children’s mother, the report provided by Dr Fotakis, and the note apparently from April and Daisy, two of Ms Dickinson’s young children,[16] does not demonstrate the best interests of the applicant’s partner’s five children would be breached as a result of the cancellation of the Subclass 444 (Special Category) visa.

    [16] Departmental file, folio 97

20. There is no evidence, and the applicant does not claim, that he would be subjected to any harm in New Zealand, and the Tribunal does not consider that Australia’s non-refoulement obligations would be breached as a result of the cancellation.

21. The Tribunal finds this consideration is neutral and does not weigh in support of or against the cancellation of the applicant’s Subclass 444 (Special Category) visa.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

22. The applicant’s Subclass 444 (Special Category) visa is a temporary visa.

23. The Tribunal finds this consideration is neutral and does not weigh in support of or against the cancellation of the applicant’s Subclass 444 (Special Category) visa.

    Any other relevant matters

24. The Tribunal has had regard to all of the information provided in support of this application and all of the evidence given before the Tribunal.

25. Considering the circumstances as a whole, the Tribunal concludes that Subclass 444 (Special Category) visa should be cancelled.

    decision

26. The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

    P. Wood
    Senior Member

    P. Haag
    Member