Fuiava (Migration) - [2018] AATA 1365

Fuiava (Migration) [2018] AATA 1365 (11 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Penehuro Fuiava
CASE NUMBER:  1733046
DIBP REFERENCE(S):  BCC2017/3552407
MEMBER:Kira Raif
DATE:11 April 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.
Statement made on 11 April 2018 at 1:41pm

CATCHWORDS
Migration – Cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – Extensive criminal conduct – History of violence – Repeated offences – Intervention Orders – Character and employment references – Children’s living expenses – Separation from family
LEGISLATION
Migration Act 1958, ss 48A, 116
CASES
BCR16 v MIBP (2017) 248 FCR 456
Tien v MIMA (1998) 89 FCR 80
STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision dated 12 December 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).
The applicant is a national of New Zealand born in January 1984. He was granted the visa and last entered Australia on 9 January 2015. On 20 November 2017 the delegate issued the applicant with the Notice of Intention to Consider Cancellation (NOICC) under s.116(1)(e) of the Act. The applicant did not respond to the NOICC and his visa was cancelled on 12 December 2017. The applicant seeks review of the delegate’s decision.
The application was made with a request for the fee waiver. The fee waiver request was refused and the applicant was granted an extension of time to make the full payment. Although the payment was made after the deadline expired, the Tribunal is satisfied that it was made within a reasonable time.
The applicant appeared before the Tribunal on 10 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s former spouse. The Tribunal hearing was conducted with the assistance of an interpreter in the Samoan and English languages. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Relevant law
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 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…

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.

Keep reading for free

Create a free CaseChat account to read Fuiava (Migration) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] AATA 1365
Decision Date: 11 April 2018

CaseChat Overview and Summary

This matter concerned an appeal to the Administrative Appeals Tribunal by Mr Fuiava against the cancellation of his Subclass 444 (Special Category) visa. The cancellation was based on extensive criminal conduct, including a history of violence and repeated offences, and the existence of intervention orders.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(e) of the *Migration Act 1958* (Cth) existed, and if so, whether the discretion to cancel the visa should be exercised. While the Act and Regulations did not specify mandatory considerations for this discretion, the Tribunal had regard to matters outlined in the Department’s Procedures Advice Manual, including the purpose of the visa holder's stay, compliance with visa conditions, the degree of hardship that may be caused by cancellation, and the circumstances in which the ground for cancellation arose.

The Tribunal found that the ground for cancellation under s 116(1)(e) was established, noting the applicant's serious disregard for Australian laws and the safety of others, evidenced by his resort to violent and criminal behaviour. In exercising its discretion, the Tribunal considered the applicant's stated purpose of being in Australia to be with his family and support his children, his reconciliation with his partner, and his ties to Australia. However, it also weighed the significant hardship that would be caused by the cancellation against the applicant's lengthy prison sentence and his demonstrated pattern of violent conduct. Ultimately, the Tribunal concluded that the visa should be cancelled.

The Tribunal affirmed the decision to cancel Mr Fuiava's Subclass 444 (Special Category) visa.

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

Full text does not contain this section.

Decision

Reasons for decision

The Tribunal has formed the view that the applicant has a serious disregard for the Australian laws and the safety and well-being of others. He resorts to violent and criminal behaviour when dealing with difficult situations. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

The Tribunal is satisfied that the ground for cancellation in s.116(1)(e) 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 There are no matters specified in the Act or Migration Regulations 1994 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’.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 The applicant told the Tribunal that he came to Australia to be with his family and look after his children. Recently, he has been staying with his relatives and has been remitting money to his family in Samoa. He has now reconciled with his partner and if his visa is reinstated, he will return to his wife and four children aged 10, seven, five and three. The applicant said his parents are in Samoa but he has aunts and uncles and three siblings who live in Australia. The applicant said that his wife and children live in Brisbane while he was living with his brother in Victoria. The Tribunal accepts that the applicant is fulfilling the purpose of his travel and stay in Australia as he has established residence in Australia. The extent of compliance with visa conditions Nothing adverse is known to the Tribunal about the applicant’s compliance with visa conditions.Degree of hardship that may be caused (financial, psychological, emotional or other hardship) The applicant refers in his evidence to the Tribunal to the length of his residence in Australia and his ties in Australia. His former partner and children live in Australia. The applicant states that he wants to go back to his job and support his children. The Tribunal is mindful that the applicant has to serve a lengthy term of imprisonment and in that period he will not be able to resume his employment and help his children financially. The applicant told the Tribunal that before his imprisonment he sent money to his children and the applicant presented a statement from his former partner referring to the financial support. His partner also referred to such support in oral evidence to the Tribunal. The Tribunal accepts that evidence. However, the Tribunal is not satisfied that the applicant would be unable to find a job in New Zealand if he has to relocate. The applicant confirmed that if he has to live in New Zealand, he will find a job and will continue to support his children. The Tribunal accepts that a degree of hardship may be caused if the applicant is not able to remain in Australia and work in Australia because of the length of time the applicant has spent in Australia and his family and community links in Australia. Circumstances in which the ground for cancellation arose