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

1. 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).

2. 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.

3. 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.

4. 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

5. 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.

6. 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.

7. 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?

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted the Special Category visa on 9 January 2015. The Department received information from Victoria Police indicating that the applicant had been charged with the following offences:

   a.Stalk another person

   Between 19/1/16 and 28/11/16 the applicant did stalk another person by texting and calling in excess of 200 times with the intention of causing physical or mental harm to the victim or of arousing apprehension or fear in the victim for her own safety or the safety or another person

   b.Burglary

   Between 24/11/16 and 26/11/16 the applicant did enter as a trespasser a building with intent to cause damage therein

   c.Criminal damage

   Between 24/11/16, 26/11/16 and 28/11/18 the applicant intentionally and without lawful excuse did damage personal property belonging to the alleged victim, including picture frames and window

   d.Make threats to kill

   On 18/11/16 the applicant did without lawful excuse make a threat to the alleged victim to kill her

   e.Assault with weapon

   On 18/11/16 the applicant did unlawfully assault the alleged victim with a weapon, namely a kitchen knife

   f.Unlawful assault

   On 18/11/16 the applicant did unlawfully assault the alleged victim

   g.Use a carriage service to harass

   Between 18/11/16 and 26/11/16 the applicant did use a carriage service to harass

   h.Theft

   Between 19/11/16 and 28/11/16 the applicant did steal a car key, a university identity card, a gold colour chain, a pair of earrings and one single earring being property belonging to the alleged victim and valued at approximately $500.

9. These charges were listed for sentencing in the Melbourne County Court in 23 October 2017. On that day the applicant pleaded guilty to the following offences:

   a.Threat to kill

   b.Stalk another person

   c.Burglary

   d.Criminal damage

   e.Theft

10. The applicant explained to the Tribunal that he lived with his partner and they shared the house. He went to the house and used the phone and did not know his partner had called the police. The applicant said that he pleaded guilty because he ‘wanted to get the charges out of the way’. He told the Tribunal he has been sentenced to three years’ imprisonment, with two years’ non-parole period. He has 17 months remaining on his sentence.

11. The decision record indicates that the applicant is the subject of an Intervention Order which was issued on 29 November 2016 to protect the safety of the alleged victim and the Order is in place until 1 November 2018. The applicant told the Tribunal that his partner is the one who contacts him and they talk on the phone. The applicant said that the Order was issued because his partner told the police she was scared of him. He said he texted his partner but she did not respond, so he got angry and did damage to the house. The applicant said that there was also an Intervention Order in relation to his former partner (the mother of his children) but that was many years ago.

12. The decision record also indicates that in addition to the above charges, the applicant has been convicted of a number of offences:

    a.Reckless cause injury (1/6/10)          12 months’ community based order

    b.Fail report to police (1/6/10)               $500 fine and suspended from driving for two

    months

    c.Intentionally cause injury (29/5/13)     two months’ imprisonment, pay compensation

    d.Traffic nandrolone (27/09/17)             aggregate one month’s imprisonment

    Traffic drug of dependence

    Commit indictable offence whilst on bail

    Contravene a conduct condition of bail.

13. The applicant confirmed these convictions in his oral evidence to the Tribunal.

14. The applicant told the Tribunal in relation to the most recent convictions that he was using drugs and was not thinking properly and did not know what he was doing. He knows that what he has done is wrong and he has apologised. The applicant said his actions do not represent who he is. The applicant referred to his church attendance and employment. However, the Tribunal notes that the applicant’s criminal history is extensive and spans over seven years. The earlier offences occurred in 2010 and despite the penalties, the applicant continued to reoffend. If the applicant believed what he was doing was wrong, it is not apparent that he has taken active steps to deal with the issue. The applicant’s evidence to the Tribunal is that he has done an anger management course and a drug rehabilitation course in 2017 after he was bailed. The applicant has not taken any steps to engage in such programs, or seek help, for many years prior.

15. The applicant told the Tribunal that the 2013 incident was not caused by drugs. He said there was an incident when he was driving the car and he reacted angrily. The Tribunal notes that the applicant was convicted of intentionally causing injury in response to a driving incident. The applicant said that in 2010 his then partner slashed his tyres and he got angry and, in his own words, ‘bashed her’. (This resulted in the earlier Intervention Order being issued.) The applicant appears to resort to violence when confronted with actions he dislikes and he has no appreciation for other people’s safety or well-being.

16. The Tribunal is of the view that the applicant’s repeated reoffending indicates that he has little regard for the Australian law and the safety and welfare of others. Many of these offences involve violence or threat of violence against other people and the Tribunal notes the applicant’s guilty plea to the offences of stalking and threatening to kill. The Tribunal is also mindful, on the applicant’s own evidence, he had been issued with two Intervention Orders in relation to two of his partners. The issuance of these would indicate that he has been considered to be a threat to others.

17. The seriousness of these offences, the nature of the offences, their recurrence and the length of time over which these offences occur, all suggest to the Tribunal that the applicant is readily willing to engage in criminal and violent conduct and to disregard the law.

18. The Tribunal has had regard to a number of character references and employment references that the applicant provided to the Tribunal. These refer to the applicant’s participation in church activities and being a good employee and a person of good character. The Tribunal accepts that those who provided references to the applicant believe that to be the case, although the Tribunal is also mindful that the references do not refer to the applicant’s convictions and it is not apparent that those who provided references to the applicant are aware of his criminal conduct. As such, the Tribunal considers these references of limited value.

19. The Tribunal also acknowledges the written statement from the applicant’s partner where she refers to the applicant being a reformed person, providing her and the family with emotional support and having undergone rehabilitation programs. She states that the applicant is no longer the same person that he was when the offences occurred. In oral evidence, the applicant’s partner said that she needs him to look after the children and that he is a good father. The Tribunal acknowledges that evidence. However, as noted above, the offences are multiple and occurring over a lengthy period of time. The applicant had ample opportunities to seek help, to engage in rehabilitation programs and try to avoid criminal behaviour in the past. There is no evidence that the applicant has done any of that before his most recent conviction. The Tribunal finds the present claims that the applicant will no longer engage in the same conduct unpersuasive. In the Tribunal’s view, given the applicant’s past behaviour, there is at least a real possibility of such conduct reoccurring.

20. The Tribunal has formed the view that the offences to which the applicant has pleaded guilty are extremely serious, including threat to kill, burglary and theft and stalking. The earlier offences for which the applicant was convicted also involve violence to others, including recklessly causing injury and intentionally causing injury, as well as drug trafficking. He was issued with protection orders in relation to his partners. Given his repeated disregard for the law and ongoing criminal and violent behaviour, the Tribunal finds that the applicant’s presence in Australia is or may be a risk to the safety or good order of the Australian community. The Tribunal further finds that his presence is or may be a risk to the safety of an individual or individuals, such as those named in the Intervention Order.

21. 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

22. 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

23. 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

24. 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)

25. 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.

26. 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.

27. 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

28. Circumstances in which the ground for cancellation arise is because the Tribunal has formed the view that the applicant’s presence in Australia is or may be a risk to the safety or good order of the Australian community, or the health or safety of an individual or individuals. The applicant has been convicted of a number of offences over the years. The applicant claims that the most recent offences were due to drug use. Hs earlier offences occurred because he was angry. The Tribunal does not consider that the ground for cancellation arises due to circumstances beyond the applicant’s control.

    Past and present behaviour of the visa holder towards the Department

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

    Whether there would be consequential cancellations under s.140

30. There are no persons in Australia who would be affected by the consequential cancellations.

    Whether there are mandatory legal consequences

31. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to detention and possible removal from Australia and he may be subject to an exclusion period if he were to make another visa application in the future. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention.

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

32. There is no evidence, and the applicant does not clam, that he would be subjected to any form of harm if he is required to leave the country. The Tribunal is not satisfied on the evidence before it that there is a real risk or a real chance of the applicant being persecuted or otherwise harmed as a consequence of his visa being cancelled. The Tribunal is also mindful that if the applicant believes he is owed protection, he is eligible to make an application for a protection visa. There is no suggestion that the applicant is prevented from validly applying for or being granted a protection visa by s.48A of the Act or because of any character issues or any other criteria: see BCR16 v MIBP (2017) 248 FCR 456. The Tribunal finds that Australia’s non-refoulement obligations would not be breached as a result of the cancellation.

33. The Tribunal has considered the best interests of the applicant’s children. The applicant told the Tribunal that he and his partner used to live together but had an argument and he left Queensland where they lived and moved to Victoria. The children have been residing with their grandparents, although the applicant claims they had daily contact. He will be able to continue to have such contact irrespective of his place of residence and his visa status. The applicant told the Tribunal that he and his former partner have reconciled and he would live with the children once he is released from detention. Given the applicant’s criminal conduct and the history of violence against others, including family violence, as well as his admitted drug use, the Tribunal has formed the view that it would not be in the best interests of the children to live with the applicant. The Tribunal reaches this conclusion while having considered the evidence of the applicant and his partner.

34. The applicant also claims that he needs to work and pay for the children’s expenses, however, the Tribunal is of the view that the applicant will be able to continue to earn money and support the family whether or not he lives with the children and whether or not he remains in Australia.

35. The Tribunal does not consider that the best interests of the children would be best served by residing with the applicant in the same household.

36. The Tribunal has considered the applicant’s circumstances. The Tribunal has formed the view that there are grounds for cancelling the visa under s.116(1)(e) of the Act. The Tribunal has formed the view that the applicant’s presence in Australia is, or may be, a risk to the safety or good order of the Australian community or to the safety of an individual or individuals.

1. There are reasons why the visa should not be cancelled. The applicant has been living in Australia for a long time and has considerable family links in Australia. He was employed before his incarceration and claims that he will have a job once he is released. The cancellation of the visa would result in the applicant giving up his employment and being away from his family and what he is used to. While the Tribunal has formed the view that the applicant will be able to find employment and access health services in New Zealand, the Tribunal acknowledges that removing the applicant from Australia will involve a degree of hardship.

2. The Tribunal also accepts the applicant’s evidence that the cancellation of the visa would result in the applicant being separated from his partner and four children. The Tribunal is not convinced that it is in the best interests of the children to live with their father, given the nature of his conduct.

3. Against these considerations, the Tribunal notes that the applicant had engaged in criminal and antisocial conduct for a number of years. The earlier incidents relate to 2010 and involve a significant degree of violence because the applicant was angry. The more recent incidents relate to 2017 when the applicant claims he was using drugs. The applicant pleaded guilty to these charges and has been sentenced to a lengthy term of imprisonment. These convictions are very serious. The applicant also admits that he had used violence against his partner when he was angry with her and he confirmed there was an Intervention Order in his previous relationship.

4. The applicant states that he is remorseful about his actions and knows he cannot use drugs anymore and he wants to have another chance. The Tribunal is of the view that the applicant had been given chances since his criminal conduct began in 2010. He reoffended in 2013 and in 2016 and 2017. The applicant took no steps to engage in any rehabilitation activities until the most recent charges. The Tribunal acknowledges that multiple character references have been submitted with the application but the Tribunal is not satisfied the applicant has effectively dealt with whatever caused him to engage in violent and criminal conduct in the past.

5. 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

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

   Kira Raif
   Senior Member