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

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).
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
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.
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.
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.
The applicant appeared in person before the Tribunal on 9 May 2019 to give evidence and present arguments.
The Tribunal also received oral evidence from Leah Dickinson, Miriam (Mim) Lee and Anthony (Tony) Evangelou.
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
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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2019] AATA 4709
Decision Date: 25 July 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 444 (Special Category) visa was cancelled by the Minister. The dispute centred on whether the cancellation was justified under section 116 of the Migration Act 1958 (Cth), which allows for visa cancellation if the Minister is satisfied that the visa holder's presence in Australia poses a risk to the health, safety, or good order of the Australian community or individuals. The applicant's criminal history, including violence against former partners and multiple breaches of intervention orders, was the primary basis for the cancellation decision.

The Tribunal was required to determine if the ground for cancellation under section 116(1)(e) of the Act was established, and if so, whether the applicant's Subclass 444 visa should be cancelled. This involved interpreting the scope of section 116(1)(e), specifically whether a "may be a risk" threshold required a direct, solid, or certain foundation for cancellation, or if a possibility of past events indicating risk was sufficient. The Tribunal also had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances, including the applicant's personal circumstances and submissions.

The Tribunal applied the principles established in *Gong v Minister for Immigration & Anor* [2016] FCCA 561 and *Howard v Minister for Immigration* [2017] FCCA 2916, which held that section 116(1)(e) lowers the threshold for cancellation, allowing it to arise on the possibility that past events indicate a risk. The Tribunal found that the applicant's criminal history, involving violence and breaches of intervention orders, demonstrated a likelihood of re-offending and posed a risk to the Australian community. While acknowledging the applicant's long-term employment and positive references, the Tribunal found no evidence that his work was critical to his employer's operations or that he was unable to work in New Zealand.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Subclass 444 (Special Category) visa, concluding that the ground for cancellation under section 116(1)(e)(i) was satisfied and that the visa should be cancelled.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 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. 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. 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. 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 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

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that Subclass 444 (Special Category) visa should be cancelled.decision The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.P. Wood Senior MemberP. HaagMember

Ratio Decidendi

Legal Principle Established

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 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 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. 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 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.