Frazer (Migration)

[2018] AATA 593

Frazer (Migration) [2018] AATA 593 (25 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hamish Liam Frazer

CASE NUMBER:  1721866

DIBP REFERENCE(S):  CLF2017/107056

MEMBER:Tigiilagi Eteuati

DATE:25 January 2018

PLACE OF DECISION:  Brisbane

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 25 January 2018 at 4:39pm

CATCHWORDS
Migration – Cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – Whether the applicant is a risk to the health or safety of an individual or individuals – Various criminal offences – Grounds for cancellation exist – Consideration of discretion - Criminal offences related to emotional hardship and alcoholism – Applicant undertaking counselling – Applicant has lived in Australia since a young age – Significant hardship to family

LEGISLATION
Migration Act 1958, ss 116(1)(e)(ii), 359AA

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 September 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 444 (Special Category) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e)(ii) on the basis that the delegate was satisfied that the presence of the applicant in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal by video on 10 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Geoffrey Frazer, the applicant’s father and Angus Frazer, the applicant’s brother.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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)(ii). 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.

7. The Tribunal has carefully considered all of the relevant information on the Department and Tribunal files including the submissions and documents provided to the Tribunal by the applicant.

   Does the ground for cancellation exist?

8. A visa may be cancelled under s.116(1)(e) if the Minister or the Tribunal 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. As mentioned above, in the present case, the delegate was satisfied that the presence of the applicant in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals.

9. In the current case the delegate based his decision on information from “the relevant authorities” that the applicant had been convicted of a number of offences on 8 September 2017.

10. The Tribunal sought information by summons as to the applicant’s criminal history from Queensland Police. The documentation returned from Queensland Police included a Queensland Court Outcomes document for the applicant and Court Briefs containing the facts alleged by the police against the applicant for his more recent crimes.

11. The Queensland Court Outcomes document records the following finalised offences for the applicant for which he was convicted on 8 September 2017.

12. On 8 September 2017 the applicant was convicted of

    ·     Burglary and commit indictable offence and sentenced to 6 months imprisonment suspended for 1 year;

    ·     Breach of bail condition and sentenced to 2 months imprisonment;

    ·     Wilful damage – domestic violence offence and sentenced to 3 months imprisonment;

    ·     Breach of bail condition and sentenced to two months imprisonment;

    ·     Assaults occasioning bodily harm whilst armed/in company and sentenced to 6 months imprisonment suspended for 1 year;

    ·     Enter premises and commit indictable offence by break and sentenced to 3 months imprisonment; and

    ·     Breach of bail condition and sentenced to 1 month imprisonment.

13. It appears that the applicant was released on the day he was convicted as his sentences of imprisonment were either suspended or it was declared that time served in pre-sentence custody was deemed to have been served in relation to sentences of imprisonment.

14. The applicant was also found guilty or convicted of 3 minor crimes previously for which he received fines.

15. The Court Briefs indicated that the circumstances surrounding the charge of Assaults occasioning bodily harm whilst armed/ in company were that the applicant had been drinking and had been refused entry into a public bar. His friends and acquaintances were permitted entry. Upon their return from the bar a fight broke out between the applicant and one of his acquaintances. The applicant was knocked to the ground and then stabbed the victim in the arm with a small kitchen knife that he had in his possession.

16. The Court Briefs indicated that the circumstances surrounding the charge of Burglary and commit indictable offence were that the applicant had been drinking and he and another broke into a house and stole alcohol from the property.

17. These were the two most serious offences. The breaches of bail involved the applicant breaching conditions of bail by drinking alcohol on two occasions and once by breaching curfew.

18. The remaining offences involved one occasion where the applicant broke into a school and threw a fire extinguisher through a window and another occasion where he punched the front door of his father’s house after an argument with his father.

19. This information was put to the applicant in the manner required by section 359AA and the applicant responded by admitting to the conduct.

20. It appears that the threshold in section 116(1)(e)(ii) is a particularly low one and that it is sufficient for the cancellation power to be enlivened that the presence of the applicant in Australia is or ‘may’ be a ‘risk’, or would or ‘might be’, a ‘risk’ to the health or safety of an individual or individuals.

21. Notwithstanding the apparent low threshold for enlivening the cancellation power, the Tribunal considers that the mere possibility that a person may or might be a risk to the health or safety of an individual or individuals absent any compelling evidence to support that assessment is insufficient to enliven the cancellation power. It could be said that any given person in the community ‘may’ or ‘might be’ a risk to the health or safety of an individual or individuals but without any compelling evidence to support even the possibility of an actual risk, the cancellation power will not be enlivened.

22. The Tribunal considers that in the current case, it is clear from the evidence from the Queensland Police and admitted by the applicant that the applicant’s presence in Australia is or may be, or would or might be, a risk to the health or safety of members of the applicant’s immediate family.

23. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(ii) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

24. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

25. The applicant submitted that he and his immediate family members would suffer significant hardship if his visa remained cancelled. He indicated that he had a strong connection to Australia arriving when he was a one year old infant when his family immigrated from New Zealand. He said that he had no close relatives in New Zealand. The applicant indicated that he had seen a psychiatrist regarding the mental aspects relating to his offending and planned to have more sessions with him. He indicated that his brother had a friend who was a youth worker and that he was willing to undertake counselling and rehabilitative programs organised by the youth worker. The applicant indicated that he had been free from alcohol since May 2017 and that this had greatly improved his mental outlook. He also said that he had re-established a connection with his faith of Jehovah’s Witness.

26. The applicant said that in late 2016 he had ended a 4 year relationship with his girlfriend as she had been unfaithful to him with his best friend. He said that the circumstances of the relationship breakup were devastating to him and he resorted to alcohol to self-medicate. He said that his alcohol consumption was a major factor in his offending in the first half of 2017 and said that he could not remember much of the offending as he was very drunk at the time. He said that he was imprisoned in pre-sentence custody on 26 May 2017 and released on the day he was sentenced on 8 September 2017. That day he was taken into immigration detention and has been there since.

27. The applicant’s father and brother both gave evidence. The applicant’s father indicated that if the applicant had to move to New Zealand that he would return to New Zealand to ensure the wellbeing of the applicant. Although they were now separated, he said that he believed that the applicant’s mother would also do so. The applicant’s father indicated that he would have to give up his employment and the life that he have made for himself in Australia in order to do so.

28. The applicant’s father and brother indicated that they had seen a significant change in the applicant’s behaviour and outlook since he spent time in prison last year. They indicated that they are convinced that he has learnt his lesson and will never re-offend.

29. The applicant’s father indicated that his employer was aware of the applicant’s situation and was willing to employ the applicant if he were allowed to remain in Australia. The father’s employer provided a letter to the Tribunal to this effect.

30. The applicant’s elder brother indicated that he and the applicant had agreed that the applicant would live with this brother in a stable home environment if he were allowed to remain in Australia. He said that his friend, Brooke Reynolds, was the Youth Programs Coordinator for the Deception Bay Community Youth Programs and that she had agreed to assist the applicant obtain alcohol counselling support. The applicant provided a letter to this effect from Ms Reynolds.

31. The applicant also provided the Tribunal with a number of letters of support from friends and family all expressing their affection and support for the applicant and belief that the applicant will not reoffend. These included letters from the applicant’s mother and his two sisters, both children.

32. The Tribunal has decided to set aside the decision of the Minister’s delegate to cancel the applicant’s visa.

33. The Tribunal places weight in favour of cancellation on the continued risk that the applicant presents to the safety of others. The Tribunal has considered that that risk has been reduced by the applicant’s abstinence from alcohol, his remorse for his past actions, and his willingness to undertake further psychiatric treatment and alcohol abstinence programs. The Tribunal has also taken into account that the applicant has much support from his friends and family and has the offer of a stable job and accommodation organised by his family.

34. The Tribunal accepts that the applicant arrived in Australia as a one year old child and has never lived anywhere but Australia. This of itself establishes a very strong connection between the applicant and Australia. The Tribunal places significant weight on this consideration against the cancellation of the applicant’s visa.

35. The Tribunal has placed great weight on the hardship which a cancellation decision would entail for the applicant’s family members and their pleas for the applicant to be allowed to remain in Australia. In particular the Tribunal has considered that the best interests of his two sisters, who are children, are served by the applicant remaining in Australia.

36. It appears that the applicant was going through a particularly difficult time after the break up with his partner and resorted to alcohol to alleviate his suffering. However, this lead to him becoming very drunk on a regular basis and on him committing stupid and on occasions violent crimes. He has now been off alcohol since May 2017, has the strong support of his family and friends, the offer of stable accommodation and employment and the means to access counselling and psychiatric treatment.

37. The Tribunal indicated to the applicant that if the decision to cancel his visa were set aside and he went on to offend that it would be hard to foresee that the next decision maker would allow him to remain in Australia. By this decision, he is being given a chance to live a lawful life in Australia with his family. Whether he embraces the chance he is being given and ceases offending is now a matter for him. There is no doubt that, if he continues to offend, sooner or later he will have to return to New Zealand. While on this occasion the Tribunal has decided that the hardship to the applicant and especially to his family members outweighs the risk of harm he presents, this will not continue to be the case if he continues to offend.

38. Considering the circumstances as a whole, including the matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’ the Tribunal concludes that the visa should not be cancelled.

    DECISION

39. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 visa.

    Tigiilagi Eteuati
    Member