Galo (Migration)

[2018] AATA 3338

Galo (Migration) [2018] AATA 3338 (13 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sene Galo

CASE NUMBER:  1814092

HOME AFFAIRS REFERENCE(S):           CLF2018/47647

MEMBER:Kira Raif

DATE:13 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 13 July 2018 at 11:13am

CATCHWORDS
Migration – Cancellation - Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – Whether the presence of the visa applicant in Australia is or may be, or would or might be, a risk to the Australian community – Where the applicant has been convicted of multiple family violence offences – Whether the visa should be cancelled – Cancellation would cause limited hardship – Best interests of children would not be adversely affected by cancellation – Grounds for cancellation outweigh grounds for reinstatement - Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(e)
Migration Regulations 1994 (Cth), Schedule 2

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 14 May 2018 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 1977. He was granted the Special Category visa on 3 May 2007. On 14 May 2018 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) under s.116(1)(e) of the Act. The applicant provided his response to the NOICC and his visa was cancelled on the same day. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 12 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   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 was granted the Class TY visa on 3 May 2007. The Department received information indicating the applicant had been convicted of the following offences:

   25/01/16   contravention of DVO (on 23/1/16)                3 months suspended sentence

   09/05/16   contravention of DVO (aggravated offence)   1 month suspended sentence

   14/11/17   contravention of DVO (aggravated offence)   6 months imprisonment

8. The applicant described in oral evidence the circumstances of the offences. The applicant said that the first time he had the DVO, he and his partner had a fight. The DVO was put in place in 2016. He and his partner had an argument and somebody called the police and he ended up in prison for a month. They had another argument in 2016 because they were under too much financial stress and hardship. The neighbours called the police and he was given a suspended sentence. The applicant said that in November 2017 he and his partner had a disagreement but there was no violence and he was not under the influence of alcohol. A neighbour called the police. The applicant said that at the time he was under the DVO and maybe their argument was too loud.  The applicant said that on the last occasion he was moving house and he was on his own. He did not have a car at the time and he had to catch a train. He did not make it home on time before the curfew and that was the reason he went to prison.

9. The applicant said that he continues to have contact with his partner. He said the DVO is valid for a year from November 2017. He believes his partner will apply to lift the DVO but that has not been done yet. The applicant provided to the Tribunal a declaration from his partner who referred to having a close and supportive relationship with the applicant. The applicant told the Tribunal that if he is released from detention, he would return to his partner and the family home. That is, he would continue to live with his partner. The applicant states that there is no threat to his partner from his presence in Australia. The applicant claims that the arguments they had did not involve violence but only verbal arguments and because their voices were too loud, the neighbours may have been worried. The Tribunal is of the view however that violence is not limited to physical violence. Verbal communication can include threat of violence and verbal abuse and the applicant’s claim that there was no physical violence is insufficient.

10. The applicant told the Tribunal he has now thought about what he has done and he will not do that again. The applicant states that being in immigration detention made him think about things more. However, the applicant‘s evidence to the Tribunal is that he has been in prison twice, once in 2016 and once from April 2018 and the period of first imprisonment did not appear to have altered the applicant’s conduct as there were subsequent contraventions of the DVO. The applicant suggested that his present situation is worse because he may lose his visa and may not be able to return to Australia and he may be separated from his children and while the Tribunal accepts that the applicant has thought about these matters, the Tribunal is not convinced such concerns will necessarily affect the applicant’s behaviour in the future, given the repeated contraventions in the past.

11. The Tribunal acknowledges the statement from Mr Maire, an occupational therapist, including the Mental Health Care Plan report. Mr Maire states that the applicant first saw him in August 2016 and they had monthly sessions. Again, the Tribunal is mindful that despite the applicant taking steps to obtain counselling, the offending behaviour continued. 

12. The applicant told the Tribunal that he also argued with the mother of his children and had to leave so the children would not witness the fights. The applicant said that there were arguments but there was no DVO in that relationship.

13. It is of considerable concern to the Tribunal that the applicant claims to have regular contact with his partner but he also stated he is uncertain whether there is a DVO in place and whether the DVO allows such contact. The applicant appears unconcerned by the fact that he may be in breach of the DVO by maintaining contact with his partner and the fact that he has made no enquiries to ensure he was not contravening the DVO indicates the applicant’s indifference about his legal obligations. The applicant told the Tribunal that he was waiting to get his visa back before getting the DVO lifted. The applicant appears to be more concerned about his visa than his obligations under the DVO.

14. The applicant’s sister gave evidence that she supports the applicant fully and will continue to support him if he is allowed to remain in Australia. She spoke about the close family relationship. The Tribunal accepts that the applicant’s sister is willing to help the applicant but the Tribunal does not consider that such offer of help will have a significant effect on the applicant’s conduct.

15. The Tribunal finds that the applicant has been found guilty of contravening the DVO on three occasions between January 2016 and November 2017. His evidence is that he had contravened his parole and was imprisoned as a result. In the Tribunal’s view, the applicant’s conduct indicates his lack of respect for the Australian laws. The Tribunal notes that a DVO was put in place because an assessment was made for the formal protection of the applicant’s partner. The applicant claims that there was no physical violence between them but the Tribunal does not consider that to be determinative as family violence is not limited to physical violence. The applicant has been issued with the DVO and the above convictions indicate that he breached the DVO on multiple occasions.

16. Having regard to the applicant’s conduct, the Tribunal finds that the applicant’s presence in Australia is or may be a risk to the health or safety of an individual (or individuals) who is the subject of the DVO. 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 visa should be cancelled.

    Consideration of discretion

17. 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

18. In his submission to the delegate, the applicant states that he came to Australia to provide better opportunities to his children. The applicant’s evidence is that he has five children in Australia, aged 8, 11, 13, 18 and 19. Three of his children are Australian citizens. The applicant states that he has separated from the children’s mother but had visits from the children until his imprisonment. Under the Family Court orders, he spends time each fortnight and during holidays with the children. The applicant states that the cancellation of the visa would be unfair to his children who have done nothing wrong. The applicant told the Tribunal that he needs to stay in Australia because his five children are here and if anything happens to them, he would blame himself.

19. The applicant also said that his partner has a disability and he is her carer and she needs him. The applicant’s partner provided a declaration to the Tribunal confirming that evidence, although she was not available to give oral evidence. The Tribunal is prepared to accept that the applicant acted as a carer for his partner. The applicant explained to the Tribunal that he was not sure if there was a DVO still in place but one was issued late last year and in the Tribunal’s view, there is a high likelihood of the DVO being still in place. The applicant told the Tribunal that his partner has not yet asked for the DVO to be lifted. The applicant’s evidence appears to suggest that there is a DVO presently in place. The applicant ‘was not sure’ if the DVO allows him to stay with his partner and even though the applicant claims they intend to lift the DVO, there is no evidence that his partner intends to take that step or that she has taken the step. In such circumstances, the Tribunal is not satisfied that the applicant is able to continue to act as a carer for his partner. 

20. The Tribunal is also mindful that the applicant has spent some time in detention and in that period his partner appears to have made alternative arrangements for the care. The applicant’s evidence is that he used to provide care with all aspects of daily life and since his incarceration, the partner’s mother has been helping her but she works. Given the length of the applicant’s detention, the Tribunal has formed the view that if the applicant is not available to provide care, alternative arrangements can be made for such care.

    The extent of compliance with visa conditions

21. There is no evidence that the applicant failed to comply with any visa conditions.

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

22. The applicant told the Tribunal that he would suffer psychological and mental hardship if he was separated from his children. There is no medical evidence to support that claim but the Tribunal is prepared to accept that the applicant may be distressed by the separation.

23. The applicant claims he had a hard life in New Zealand and that is the main reason he left New Zealand. The applicant described the work that he had to do as a child, saying that he had to work from the age of 14 to support the family financially and he had no educational opportunities. The applicant states he observed alcohol abuse and physical abuse between his parents. The Tribunal acknowledges that evidence but it is unclear how this would be repeated in the future, given the applicant is now an adult and is capable of independent living. His evidence to the Tribunal is that his father passed away and his mother is in a nursing home.

24. The applicant told the Tribunal that ‘New Zealand is not getting any better’. He referred to limited financial and other opportunities in New Zealand. The Tribunal is not convinced by that evidence. There is no suggestion that it would be impossible for the applicant to get a job in New Zealand, even given his lengthy absence from the country. The applicant told the Tribunal that there are not many jobs in the area he grew up in but the applicant, as an independent adult, can live anywhere. The applicant claims he would be unable to find a job in New Zealand because he had been a full-time carer for his partner for the past five years. Before that he worked in abattoirs but cannot do that work anymore because of a shoulder injury. The Tribunal is prepared to accept (even though there is no medical evidence) that the applicant may not be able to work in an abattoir but the applicant also told the Tribunal that he has not sought any jobs in New Zealand and has not thought about it. The Tribunal is not satisfied the applicant would be unable to find employment in New Zealand in the absence of any evidence that the applicant has applied for, and had been denied, employment.

25. The applicant told the Tribunal that he has three siblings in New Zealand. One brother works in New Zealand, his sister is a stay at home mother and his other brother has recently travelled to Perth for work. The applicant claims he has no contact with his family in New Zealand. He has one sister in Australia. The Tribunal accepts that the applicant has not been back to New Zealand since 2003 and claims he does not want to return but the Tribunal does not consider the applicant would be unable to re-settle in New Zealand.

    Circumstances in which ground of cancellation arose

26. The grounds for cancellation arise because the Tribunal has formed the view that the applicant’s presence in Australia is or may be a risk to another person. The applicant claims there is no risk to anyone from his presence in Australia. The applicant said he is a loving and caring person.

    Past and present behaviour of the visa holder towards the department

27. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

    Whether there would be consequential cancellations under s.140

28. There are no persons in Australia whose visas will be subject to cancellation under s.140 of the Act.

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

29. 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 an unlawful non-citizen and subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention. The Tribunal accepts that in relation to most visa categories, the applicant may be subject to an exclusion period.

    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

30. There is no evidence, and the applicant does not claim, that he would be subjected to any form of harm in New Zealand and the Tribunal does not consider that Australia’s non-refoulement obligation would be breached as a result of the cancellation.

31. The applicant has five children in Australia. Two of his children are over the age of 18 and three are minors. He told the Tribunal his partner has two children but they are over the age of 18.

32. The applicant’s evidence to the Tribunal is that despite the breakdown of his relationship with the children’s mother, he continued to maintain a relationship with the children and saw them regularly. The applicant said that the children should not grow up without a father and if anything happens to them, he should be there for them. The applicant, his sister and his partner refer in their statements to a close and loving relationship the applicant has with his children. The Tribunal acknowledges that the applicant no longer has a relationship with the children’s mother but maintained a relationship with his children.

33. There is no evidence, other than the evidence of the applicant and his sister and partner, to support the applicant’s claimed relationship with the children. There is no evidence to show that the applicant has spent time with the children or participated in their activities or that he played a meaningful role in the children’s upbringing. There are no statements from the applicant’s children, including those over the age of 18.

34. The Tribunal is prepared to accept that the applicant saw his children regularly prior to his detention and that he may have provided guidance to them. In the Tribunal’s view, he can continue to do that whether or not the applicant remains in Australia. The Tribunal does not consider that the provision of guidance and support is only possible where the parties reside under one roof or in the same city or country. In the Tribunal’s view, the applicant will be able to provide emotional support to the children, and guide the children, even if he does not continue to reside in Australia.

1. The Tribunal does not consider that the children’s best interests would be adversely affected as a result of the visa cancellation.

   Any other relevant matters

2. The applicant told the Tribunal that he has been working in Australia for over 12 years. However, his evidence to the Tribunal is that for the past five years he was a carer for his partner and could not get a full-time job. The applicant said that his partner would not travel to New Zealand with him and due to her medical condition, she cannot travel to New Zealand. The applicant’s evidence appears to suggest that the cancellation of the visa may lead to the breakup of the relationship but the Tribunal is mindful that the partner may be eligible to act as a sponsor in a future visa application.

3. The Tribunal has considered the applicant’s circumstances. The Tribunal has formed the view that the applicant’s presence in Australia is or may be a risk to the safety of an individual, his partner.

4. The Tribunal accepts that there may be compelling reasons for the applicant to remain in Australia, primarily the presence of his children and his partner here. The Tribunal accepts that the cancellation of the visa may cause considerable hardship to the applicant and his family because if he is removed from Australia, the applicant will be separated from his partner and children and his sibling. The Tribunal accepts that the applicant wants to play a parental role in relation to his children although the Tribunal has formed the view that he can continue to do that irrespective of his place of residence and the Tribunal is not satisfied the best interests of the children would be adversely affected by the cancellation. The Tribunal accepts that the applicant has been living in Australia for a number of years and has not returned to New Zealand and that he may find it difficult to re-establish himself again in that country, although the Tribunal has formed the view that he should be able to do that. The Tribunal accepts that the applicant sought counselling and acknowledges his evidence that he has now had the opportunity to think about his conduct. The Tribunal finds that there are reasons why the visa should not be cancelled.

5. Against these considerations, the Tribunal notes that the offences relating to family violence are serious. The applicant was issued with the DVO because an assessment was made about the need to protect another person from the applicant. The applicant contravened the DVO on multiple occasions and the Tribunal places significant weight on the fact that the breaches had been numerous. The Tribunal also places weight on the fact that the applicant appears to be unconcerned about his obligations under the law. He spoke about breaching the parole and he referred to not checking the conditions of the DVO, despite having contact with his partner. In the Tribunal’s view, the nature of the offences and the applicant’s conduct overall, outweigh other considerations.

6. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   Kira Raif
   Senior Member