Eades (Migration)

[2021] AATA 813

Eades (Migration) [2021] AATA 813 (18 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lance Edward Eades

CASE NUMBER:  1910932

HOME AFFAIRS REFERENCE(S):          BCC2018/4992226

MEMBER:Kira Raif

DATE:18 March 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 18 March 2021 at 11:33am

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – risk to safety or good order of community or individuals – multiple criminal charges, convictions, imprisonment and community corrections orders – immigration detention and departure from Australia – participation in rehabilitation programs – alcohol and drug use now ceased but low risk of reoffending continues – discretion to cancel visa – significant hardship to applicant and family – lengthy residence from young age – only child of elderly parents in Australia – five children and partner pregnant – visa has ceased and applicant will need to re-apply – setting aside cancellation will remove exclusion period – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(e), (3)

CASES
Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 16 April 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 444 (Special Category) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of New Zealand, born in April 1981. He was granted the Special Category visa in January 2002. In March 2019 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that there may be grounds for cancelling the visa under s. 116(1)(e) of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 16 April 2019. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 17 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from several witnesses nominated by the applicant. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. 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.

5. A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

6. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

   Does the ground for cancellation exist?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant had been charged with, or convicted of, the following offences at Ringwood Magistrates Court

10/03/19	-     Contrive family violence intervention order intending to cause harm or fear -      Contravene family violence intervention order (2 counts) -     Prohibit person possess a firearm -     Possess ammunition without license -     Carry / use ammunition in insecure / dangerous manner -     Make threats to kill -     Unlawful assault -     Persistent contravention of family violence notice or order	Pending court outcome (April 2019)
09/10/18	Theft from shop – shop steal	1 month imprisonment
16/08/18	-     Use vehicle display number plate other than issued -     Contravene a conduct condition of bail -     Dishonestly receive stolen goods -     Commit indictable offence whilst on bail (2 charges) -     Contra-family violence final intervention order -     Theft from shop (shop steal) – 5 charges -     Unlawful assault -     Drive whilst authorisation suspended -     Use unregistered motor vehicle – highway -     Fail to stop motor vehicle on request -     Theft (7 charges) -     Enter building with intent to steal (6 charges) -     Theft from motor vehicle	Aggregate 5 months imprisonment Convicted and a community corrections order for 18 months
16/08/18	Fail oral fluid test within 3 hours driving (2 charges)	On each charge – aggregate 5 months imprisonment. Convicted and a community corrections order for 18 months license cancelled and disqualified for 3 months.
16/08/18	-    Possess housebreaking implements -    Deal property suspected proceed of crime -    Theft	On each charge: aggregate 5 months imprisonment. Convicted and a community corrections order for 18 months
16/08/18	-     Contravene suspended sentence order -     Contrive family violence intervention order (2 charges)	Proven. Suspended sentence restored to be served 2 months imprisonment.

1. In oral evidence the applicant confirmed, with respect to the most recent charges, that some of the charges had been removed (some breaches of the AVO, unlawful assault, and some of the charges relating to the possession of firearms). The applicant told the Tribunal he pleaded guilty to the other charges and was sentenced to 11 months imprisonment with 18 months community corrections order, which ceased once he left Australia.

2. In his written submission to the Tribunal the applicant states that he had been diagnosed with anxiety in 2003 and from 2014 started to use alcohol and methamphetamines. The applicant states that he did not have the skills to deal with the problems but has learned such skills now. The applicant refers to the several rehabilitation programs he had completed between 2018 and 2020. He states that after being released from detention the first time, he again turned to the use of drugs. The applicant described the incident with his then partner which led to the most recent convictions. The applicant states that he has always been cooperative with the police and had no incidents during his incarceration. The applicant outlined the rehabilitation activities he had been involved in, both for himself and as a mentor to others. The applicant states that he continues to actively participate in AA and NA and had not used drugs or alcohol for the past two years.

3. The applicant submits that he has ‘taken ownership’ of his bad behaviour and has learned new ways of thinking. The applicant outlined his personal background and the circumstances of his past residence in Australia. The applicant refers to being ‘clean and sober’ and to having an education role to help with the rehabilitation of others. The applicant outlines his involvement with AA since returning to New Zealand and states that he has been clean and sober.

4. The Tribunal accepts that the applicant has completed several rehabilitation programs and that he had run and participated in programs for others while in jail and since his release. There are several references before the Tribunal concerning the applicant’s involvement in various courses during and since his imprisonment and the Tribunal accepts that evidence. It is of some concern to the Tribunal that, his own evidence, the applicant returned to the use of drugs in 2018 as soon as he was released from jail but the Tribunal acknowledges that he has completed many more courses since that time and is prepared to accept the applicant’s evidence that since his most recent release, the applicant has not used drugs or alcohol.

5. The applicant states that due to the delays in having his criminal matter heard and lengthy immigration detention, he has made the decision to return to New Zealand.

6. In oral evidence, the applicant told the Tribunal that he has learned the lesson that he has to rely on the help of others. He had engaged in every course that was available to him. It has been two years since he has not used drugs or alcohol and he conducts regular AA and NA meetings and participates in other courses and programs. The applicant states that he had suffered trauma six years earlier that led him to the use of drugs but he has learned to deal with adverse matters. The applicant states that throughout his detention, he has not had any incidents or drug use and has not re-offended since his release from detention. The applicant refers to his activities while in detention and participation in courses since his release. The applicant states that he has the support of his parents if he were to return to Australia. The Tribunal accepts that evidence.

7. The Tribunal accepts that  the applicant has actively sought to rehabilitate himself and that he had participated, and continues to participate, in various programs. The Tribunal accepts that the applicant has shown a genuine resolve not to return to his past misconduct. However, the Tribunal is mindful that the applicant has spent a relatively short time in the community since his most recent offending. He had spent 11 months in jail and he had then spent time in immigration detention before departing Australia. That  is, the applicant had been removed from the causes and circumstances that may have led to his past reliance on drugs and alcohol and to offending.

8. Ms Reardon told the Tribunal that once the applicant moved to New Zealand, the first few weeks would have been the hardest and the most likely time for the applicant to return to drugs and alcohol and the fact that the has not done that shows his resolve. The Tribunal acknowledges that this may be the case but the Tribunal is of the view that the applicant’s resolve needs to be tested in the community and, particularly, in an environment where he had previously made the bad choices and where he may be again be subjected to bad influences, whether in the form of bad friends or relationship issues. The Tribunal is of the view that while in New Zealand, the applicant has been largely removed from that environment, having few or no connections, friends and influencers. That is not the environment that had led to past offending. The Tribunal is concerned that should the applicant find himself in such an environment, there remains a risk that he would again act in a way that he did in the past, that is, turn to drugs or alcohol and therefore to crime, to help him deal with issues. The Tribunal acknowledges that the risk of reoffending may be small and certainly significantly less than it was a few years ago when the offensive conduct began and when the applicant was reliant on illegal substances. However, the Tribunal is not satisfied the risk of reoffending is negligible or non-existed. In the Tribunal’s view, the risk of reoffending continues to exist, even if it is not significant. In reaching this conclusion, the Tribunal has regard to the extent of past offending and the fact that the applicant continued to offend after his incarceration and participation in some rehabilitation programs in jail. In the Tribunal’s view, more time needs to pass, with the applicant living in the community and being subjected to possibly stressful and uncomfortable situations, before it can be established that he can deal with such situations without resorting to illegal substances.

9. Considering all of the applicant’s circumstances, the Tribunal has formed the view that the applicant’s presence in Australia might be a risk to the Australian community (having regard to his general offending) or individuals (such as his past or future partners, having regard to the breaches of the Family Violence orders). For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) exists.

10. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

11. 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

12. The applicant travelled to Australia with his parents as a nine year old child and has spent the majority of his life in Australia. The applicant’s parents remain in Australia and due to his father’s health condition, would not be able to travel overseas. The applicant’s father suffers from a serious condition and his mother is a full-time carer for his father. The applicant states that he has reached a stage in life where he needs to support his parents and his parents need his support. The Tribunal is satisfied that prior to his departure, the applicant was fulfilling the purpose of his stay in Australia.

13. The applicant has five children in Australia. The applicant states that his youngest child, who is 2.5 years old, is in the care of his elderly grandparents but once they become too old to care for the child, the child may go into state care if he is not there to care for the child. The applicant states that the authorities support and authorise his contact with the youngest child. the applicant states that he has not had contact with the older children for some time but he intends to start the process and re-establish contact with them in the future.

14. The applicant referred to his past employment and stated that he was a contributing member of the society and had worked for the Australian government and is generally a good person.

15. The Tribunal accepts that the presence of his immediate family in Australia, and in particular, his parents’ circumstances, may constitute a compelling need for the applicant to travel to Australia.

    The extent of compliance with visa conditions

16. There is no evidence of any non-compliance with visa conditions.

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

17. The applicant states in response to the NOICC that he has been living in Australia since the age of 9 after arriving in this country with his family. The applicant states that he considers Australia his home and does not know much about New Zealand. In his evidence to the Tribunal the applicant described his background, his family circumstances, education and past employment. The applicant provided to the Tribunal several references relating to his past employment and general character references.

18. The Tribunal accepts that the applicant has lived in Australia most of his life and since a young age. The Tribunal accepts that the applicant has strong family ties in Australia, which include four minor children. The applicant’s mother Ms Jill Eades states in her written statement to the Tribunal that the applicant is her only child who has been living in Australia since 1990 and has had no contact with his extended family for the past 20 years. The Tribunal accepts that separating the applicant from his family and his return to New Zealand, where he had not lived as an adult, would cause significant hardship to the applicant and his family, including the applicant’s parents. While the applicant has made the decision to return to New Zealand, the Tribunal acknowledges the applicant’s evidence that he made that decision to avoid lengthy immigration detention.

19. The applicant stated in his response to the NOICC that his mother is a carer for his father, who suffers from multiple sclerosis and other conditions, and, being the only child, he provides his mother with support in caring for his father. There is before the Tribunal a statement from the applicant’s mother Ms Jill Eades who confirms that her husband suffers from MS and is totally dependent and if the applicant is deported, he would not be able to assist while her husband cannot travel. In his submission to the Tribunal the applicant states that if he is allowed to return to Australia it would be of great help to his mother, who is the carer for his father. The applicant states that his father would not be able to travel to visit him in New Zealand.

20. The applicant told the Tribunal that the cancellation of the visa has affected the mental health for himself and his family. The applicant refers to the loss of emotional connection and the family connection that resulted from him being removed from Australia. He refers to the loss of “everything he has known” as he has spent most of his life in Australia. The applicant also refers to the financial hardship. He states that he had been working in Australia and had offers of employment upon release from detention. The Tribunal accepts that emotional hardship is caused by the cancellation although the Tribunal does not accept there would be financial hardship, as the applicant is able to seek employment in New Zealand.

21. The Tribunal accepts the entirety of that evidence and accepts that considerable hardship would be caused to the applicant and his family by the cancellation, although as noted elsewhere, the Tribunal is also mindful that even if the cancellation of the visa was to be set-aside, that would not give the applicant permission to return to Australia as his visa would have already ceased upon departure from Australia. The applicant would need to make an application for another visa in Australia and such an application will be subject to all relevant assessments, including a character assessment. Nevertheless, the Tribunal acknowledges that the applicant would be subject to an exclusion period unless the cancellation is set aside and that may delay his return to Australia, should he make another visa application in the future. The Tribunal accepts that this may also cause hardship to the applicant.

    Circumstances in which ground of cancellation arose

22. The ground for cancellation arises because the Tribunal has formed the view that the applicant’s presence in Australia would or might be a risk to others.

23. The applicant describes in his response to the NOICC that the latest charges had not been correctly reported, however the applicant admits to having been in contact with, and staying in the house of his partner despite a family violence order prohibiting such conduct. The applicant appears to admit that he had breached the Order. The applicant told the Tribunal that some of the charges had been withdrawn and he pleaded guilty to others. The Tribunal is also mindful that the applicant had been found guilty of multiple other offences over the previous two years, including theft, receiving stolen goods, multiple contravention of family violence orders and driving offences. The applicant states in his submission to the delegate that he has high morals and is a good person. While it is not for the present Tribunal to determine the applicant’s morality, it is not in dispute that the applicant had been convicted of multiple, and serious, offences. His unlawful conduct persisted over the years and in the Tribunal’s view, such conduct shows the applicant’s disregard for the Australian laws and the welfare of others. This is particularly so as the applicant has been convicted of multiple breaches of family violence orders.  

1. In her statement to the Tribunal Ms Eades states that the applicant has been involved in Ice and prior to that he was a responsible and hard-working person while the use of ice accounts for his unstable mental situation. In oral evidence the applicant states that at the time the decision was made to cancel his visa, he agreed with the decision but he is a different person now. The applicant states that his past behaviour was entirely due to poor mental health and drug addiction and not asking for help, but he has been drug and alcohol free for the past two years. He is aware of his behaviour and how much he has hurt others.

   Past and present behaviour of the visa holder towards the department

2. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

   Whether there would be consequential cancellations under s.140

3. There are no persons who would be subject to consequential cancellation.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

4. If the applicant’s visa is cancelled, the applicant would have become an unlawful non-citizen in Australia, unless he was granted another visa, and that may have resulted in in his detention and removal from Australia. The applicant’s evidence to the Tribunal is that he has made a decision to depart Australia, given the length of his detention. It is unclear whether the applicant was removed or departed voluntarily. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation and, in particular, the applicant may be subject to PIC 4013 if he chose to return to Australia. An assessment would need to be made whether the applicant is a behaviour concern non-citizen, should he apply for another Subclass 444 visa in the future.

   Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

5. The applicant states that the people of New Zealand do not view favourably returnees whose visas had been cancelled and there had been assaults in the country. The applicant states that he has been on television and people know him. The applicant told the Tribunal that nothing happened to him in the six months since he had returned to New Zealand. The Tribunal is not satisfied there is a real chance or a real risk of any harm perpetrated against the applicant, given that he appears to have been of no adverse interest  to anyone since returning to New Zealand. In any case, there is nothing to suggest the applicant would be denied protection of the authorities in New Zealand and the applicant himself does not suggest that he would be denied protection of the New Zealand authorities. In such circumstances, the Tribunal does not consider that Australia’s non-refoulement obligations would arise in this case. (The Tribunal is also mindful that since the applicant is outside of Australia, Australia may not have non-refoulement obligations in relation to him.)

6. The applicant states in response to the NOICC that he has five children born in Australia from three different relationships. Their ages range from 17 to 2 and his current partner is pregnant with another child. The applicant told the Tribunal that his eldest child has turned 18 and the youngest child is about 2.5.

7. In his submission to the Tribunal the applicant states that he has not had contact with his eldest four children and the youngest child lives with his grandparents as a result of a Child Protection Order presently in place, although he is able to have contact with the child. The applicant told the Tribunal that he has regular contact with his youngest child and he has support from the authorities, so that if he returned to Australia, they will support his interactions with the child.

8. The Tribunal has considered the best interests of these children. The applicant’s evidence is that he has had no contact with four of his children for a number of years and there is little evidence before the Tribunal to indicate that the applicant plays a meaningful parental role in the lives of these children. It appears that the applicant has little or no participation in these children’s lives for several years and in such circumstances, the Tribunal is not satisfied that the cancellation of the visa would affect that relationship or the children’s interests. Given the absence of contact between the applicant and his eldest four children, and the fact that he had not taken steps to re-establish any contact, the Tribunal is of the view that the children’s interests would be unaffected by the applicant’s presence or absence from Australia and the cancellation of his visa.

9. With respect to the youngest child, the applicant claims to have regular contact with him and he states he has the support of the authorities. However, the Tribunal is mindful that this child is not in the custody of either parent. Ms Absolom, the mother of the youngest child, told the Tribunal about her desire for the child to grow up with the father. The Tribunal acknowledges that to be the case, although the Tribunal is mindful that the child is not in the care of Ms Absolom and that the applicant has had little active involvement in the child’s daily life and had not engaged in meaningful parenting. The applicant refers to regular contact but such contact can occur whether the applicant is in Australia or any other country.

10. The Tribunal considers it significant some of the applicant’s convictions relate to the contravention of the Family Violence Orders. In the Tribunal’s view, it may not be in the best interests of any child to witness any conduct which involves violence or threat of violence in relation to their parents. The Tribunal further notes that the applicant has been convicted of several other offences, some of which appear to involve violence, threat of violence or potential to cause violence towards others (such as threats to kill and possession of firearms). Again, the Tribunal is not satisfied that it is in the best interests of the children to witness such conduct.

11. The applicant claims he is now a different person and that  there is no risk of reoffending. However, as noted above, the Tribunal is of the view that there remains a risk of reoffending, even if that risk is low. Given the past offending and, in particular, persistent breaches of the family violence protection orders in the past, the Tribunal has formed the view that the best interests of the children will not be adversely affected as a result of the cancellation of his visa.

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

12. The Subclass 444 visa is not a permanent visa, although it allows for long term or even permanent residence in Australia. The Tribunal acknowledges that the applicant has extensive family ties in Australia, as well as business ties.

    Any other relevant matters

13. There are several statements in support and character references provided by the applicant, as well as oral evidence given in the course of the hearing. The Tribunal accepts their evidence. The Tribunal accepts that those who provided statements genuinely believe the applicant has rehabilitated and is committed to changing his behaviour and that he would not reoffend.

14. The applicant refers to the length of time he has spent in Australia, having moved to Australia at the age of 9. He states that he is culturally an Australian and does not know anything or anyone in New Zealand. He has no support network. The Tribunal accepts that evidence.

15. Ms Eades told the Tribunal that the applicant’s father cannot travel and may never see his son if the visa is not reinstated. The Tribunal acknowledges that evidence but is mindful that the visa has ceased and the applicant will need to make a new application to return to Australia.

16. The Tribunal has considered the totality of the applicant’s evidence. The Tribunal has formed the view that  the applicant’s presence in Australia might be a risk to others and that there are grounds for cancelling the visa. The Tribunal places significant weight on the nature of the offences and considers that offences involving violence to others (such as breaches of the family violence orders) and assault weigh strongly in favour of the cancellation. The cancellation would not breach Australia’s international obligations, including the best interests of the children. The Tribunal considers there are strong reasons why the visa should be cancelled.

17. Against these considerations, the Tribunal considers that significant hardship would be caused to the applicant and his family if the visa is cancelled. The applicant has been living in Australia for about 30 years since the age of nine and has little or no links to New Zealand. The applicant’s closest family are in Australia and the Tribunal accepts that if the applicant was in Australia, he would help to care for his father, who has a serious illness. The Tribunal acknowledges that the applicant has extensive links to Australia, including employment, family and social contacts and such links are much stronger than his links to any other country, including New Zealand.

18. The Tribunal places weight on the fact that the applicant had engaged in many rehabilitation programs and activities while in detention and since his release. He appears to be genuinely committed to rehabilitation, although for the reasons stated above, the Tribunal has formed the view that insufficient time has passed to establish that he is fully rehabilitated. Nevertheless, the applicant’s apparent commitment to better conduct and drug-free life are matters that do not support the cancellation of his visa. Essentially, the Tribunal is of the view that the applicant should be given an opportunity to seek another visa in the future, when he may be better able to establish that he has fully rehabilitated. In that regard, the Tribunal notes that the cancellation will not result in the applicant being able return to Australia on the Special Category visa. The visa that is the subject of this review has ceased upon the applicant’s departure from Australia. The decision to set aside the cancellation will have the effect of removing, in relation to some visa categories, the exclusion period and will enable the applicant to seek another visa in the future. Any such application will include an assessment of the applicant’s character.

19. Overall, the Tribunal places greater weight on the hardship that would be caused to the applicant and his family if the visa is cancelled. The Tribunal has formed the view that, considering all the circumstances, the visa should not be cancelled so as to enable the applicant to seek other visas in the future without an exclusion period.

    DECISION

20. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

    Kira Raif
    Senior Member