Harrington (Migration)

[2020] AATA 5054

Harrington (Migration) [2020] AATA 5054 (31 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gerhardus Harrington

CASE NUMBER:  1915738

DIBP REFERENCE(S):  BCC2019/1183503

MEMBER:Kate Millar

DATE AND TIME OF

ORAL DECISION AND REASONS:         31 August 2020 at 4:10 pm (SA time)

DATE OF WRITTEN RECORD:                19 September 2020

PLACE OF DECISION:  Adelaide

Statement made on 19 September 2020 at 10:38am

CATCHWORDS

MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – risk to the health, safety or good order of the Australian community – applicant convicted of a number of offences – applicant waiting for criminal charges to be determined – applicant’s wife left Australia – some charges withdrawn – employment sponsorship withdrawn – decision under review set aside and substituted    

LEGISLATION

Migration Act 1958, ss 48, 116
Migration Regulations 1994

CASES

Gong v MIBP [2016] FCCA 561

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 June 2019 to cancel the applicant’s Subclass 010 Bridging A (Class WA) visa under the Migration Act 1958 (the Act).

2. At the hearing on 31 August 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an application for review of a decision of 11 June 2019 made by a delegate of the Minister to cancel your subclass 010 Bridging A visa under section 116 of the Migration Act 1958. Your bridging visa was cancelled after you were charged with a number of offences, including assault, aggravated assault and contravene a domestic violence order. You were also charged with a number of other offences. However, as those offences were not proceeded with, I do not consider it necessary to detail in this public document.

4. The delegate cancelled the visa under section 116(1)(e) on the basis that you are, 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 and safety and an individual or individuals. The issue in this case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled. You appeared before the tribunal on 28 November 2019 and today to give evidence and present arguments. I also received oral evidence from Mr Thomas Harrington, your brother, and Mrs Wendy Harrington, your sister in law. For the following reasons, I have concluded that the decision to cancel your visa should be set aside.

5. At the time you applied for review of the decision, you were in prison as a result of being on remand for the offences for which you were charged.  The hearing on 19 November 2019 was adjourned, as you said you would be found not guilty of the offences and the gravity of the charges at that point and the severity of the risk to the Australian community therefore weighed heavily in favour of cancelling the visa at that time.  The tribunal was also mindful of the effect of cancelling your visa on a substantive visa application, as this visa was granted pending the outcome of a subclass 187 application.  And if your visa is cancelled, there can be limited visas for which you can apply for from within Australia.

6. You said the next hearing was in December 2019 about the breach of the DVO, and this was a misunderstanding on your behalf about whether or not you could write to your wife from in prison.  The next hearing of the remaining charges was to be 15 January with a hearing scheduled for March or June 2020.  On 24 December 2019 your legal representative for the criminal matter sought an adjournment on your behalf on this matter until the criminal charges were determined.  This was granted and Mr Thomas Harrington, your authorised recipient, was asked to contact the tribunal as soon the criminal proceedings had been finalised.

7. We contacted Mr Thomas Harrington on 26 February 2020 and again advised the matter had been adjourned as requested, pending the outcome of the criminal proceedings.  There followed a lack of contact and we contact Mr Thomas Harrington on 1 June 2020 to obtain an update.  At this time we were advised that your wife had made false accusations and had been deported, that the matter would be finalised in the first two weeks of June and that we would be informed of the outcome.  We contact Mr Thomas Harrington again on 26 June 2020 to follow up the outcome of the criminal matter, and was advised there may be agreement about the charges.

8. Confirmation was requested from a legal practitioner and Mr Thomas Harrington requested that a decision is not made until the outcome of the criminal proceedings was known and undertook to advise the tribunal as soon as possible.  On 27 July 2020 you were advised you had received a favourable outcome and you were asked to provide information to establish the status of the charges.  We were also advised that the alleged victims had left Australia and that the charges would be withdrawn.  Further adjournments were again sought until sentencing on 31 July 2020.  You were convicted on 31 July 2020 of three counts of aggravated assault and sentenced to a term of imprisonment for four months.

9. The further hearing of this matter is held today.  You have provided a draft copy of the sentencing remarks of Kelly J from The Crown v Gerhardus Harrington.  Kelly J stated the offences involved your three stepchildren.  You had been married to their mother for two years.  Kelly J said two stepdaughters, who were approximately 12 and eight years old at the time.  The incident occurred one night that you had been drinking and they had been out to the park and were late coming home.  This was against the house rules that they should be home by dark.  You used a belt to strike the older child a few times.  The metal buckle and leather hit her skin, leaving marks on her upper leg.

10. On the same occasion you hit the eight year old two or three times with your hand.  The third count was an assault against your stepson, who was then 10 years old and had been helping you work on a vehicle in the backyard.  Kelly J says your stepson stepped on a door handle which was on the grass and you became angry and pushed your hand against his neck and slapped his face.  The child started crying and you said, ‘Stop crying or I will kick you.’  At the first hearing you said this all came about because your wife wanted to leave the marriage.  A great deal of material was provided about the character of your wife and the nature of other allegations made against you.

11. As these charges were not proceeded with, it is not necessary to specify them in this decision. And it goes without saying it is not the conduct of your wife that is under consideration in this case. Turning to the law, under section 116 of the Act, the Minister may cancel a visa if satisfied that certain grounds in that provision are made out. And those include the grounds set out in section 116(1)(e). If satisfied 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. Looking to whether a ground for cancellation exists, the one relied on by the delegate is 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 and safety of an individual or individuals.

12. There does not have to be any direct, solid or certain foundation before the power can arise.  It can arise on a possibility that some event occurred in the past.  And the authority for that is Gong v Minister.  This leads to the threshold for this ground for cancellation, in particular when a person may be at risk.  The second reading speech to the amendment states that the amendment was to lower the threshold of this cancellation ground that so it exists where there is a possibility that a person may be a risk to the safety or good order of an individual or the community in Australia as well as there is demonstrated to be an actual risk of harm.

13. In this case you have now been convicted of offences involving assault.  At that time you said your Post Traumatic Stress Disorder was so bad you could not sleep and you used alcohol.  While in prison you have received medication and spent time learning techniques to control your Post Traumatic Stress Disorder.  A sentencing report from Dr Walton, a forensic psychiatrist, details your very difficult past.  This includes the death of a child of 16 months, being the victim of an armed carjacking in South Africa, while you were working as a civilian contractor in Afghanistan an incident where a child was shot and died.  And a farm attack on your return to South Africa, where you and your family were attacked by armed robbers and tied up.  And there was a threat made to kill one of your children.

14. Your work tools were stolen and you could not continue your business.  On relocating to Johannesburg, your wife was the victim in a further attempted carjacking, and this prompted your move to Australia.  Dr Walton considers you suffer Post Traumatic Stress Disorder, and associated chronic and major depression.  Dr Walton states:  ‘This diagnosis would have relevance to hostility and difficulty in tolerating misconduct in others.’  Since arriving in Australia, you were caught in a flood when relocating to the Northern Territory, and that required your rescue.  You have said that your Post Traumatic Stress Disorder symptoms became much worse after the flood, and you could not control it anymore.

15. You were not sleeping, had nightmares and flashbacks. You said you would overreact to anything small, such as the children being too noisy. You said you are now on medication, which you have found to be of good effect. And while you were in prison, you said you were seeing a psychologist every two weeks and undertaking alcohol and other drug rehabilitation. You said you were required to do a course on family violence but could not do that until you were sentenced. Insofar as your past behaviour shows a risk of future behaviour and as the assessment of Dr Walton is that your condition means you may experience hostility and have difficulty in tolerating misconduct, in conjunction with the convictions for aggravated assault I am satisfied that a ground for cancellation in section 116(1)(e) exists.

16. As that does not require mandatory cancellation, I have considered whether the visa should be cancelled.  There are no matters specified in the Act or Regulations that must be considered in the exercise of the discretion.  I have had regard to your circumstances, as well as matters specified in the department’s procedures manual.  You have now been sentenced.  You are in immigration detention in Darwin, however are due to be transferred, I understand, as it is a temporary facility.  And, as a result, I am giving a decision as soon as possible.

17. You have your parents who live in Pretoria, three adult daughters and an eight year old in South Africa, as well as your sister.  Your brother, Mr Thomas Harrington and his wife, Mrs Wendy Harrington, and their family live in Australia.  Looking to the purpose of your travel and stay in Australia, the purpose of the bridging visa you are on is to provide a temporary stay until the decision is made on your substantive, in this case, a subclass 187 visa.  This will be determined in due course, and you are here for the purpose for which the visa is granted.  However, as you have said, your employer has now withdrawn your sponsorship, and that was not before me at the previous hearing.

18. You had pointed to a number of matters that indicate you might be able to apply for another type of visa while you are in Australia, including a further work visa.  Your personal circumstances evoke a great deal of sympathy for the circumstance you are in and the trauma you have suffered.  Looking at the extent of your compliance with visa conditions, there were no conditions on your bridging visa.  The degree of hardship that would be caused if your visa is cancelled - I have heard from Mr Thomas and Mrs Wendy Harrington – is that it would cause a great deal of distress to them and their family if you were required to leave.

19. While cancelling your bridging visa would not itself require you to leave, it would have an effect on your ability to apply for other visas.  You have said you have sold everything in South Africa, and you came to Australia because the situation is dangerous for you in South Africa and you want to create a pathway for the children to come.  Looking at the circumstances in which the grounds of cancellation arose, it arose because of your actions towards your stepchildren.  You have pleaded guilty and been convicted.  You have provided information from the children’s biological father about consent to corporal punishment and further information on Australia’s 2011 briefing regarding corporal punishment of children.

20. However, you have been convicted for aggravated assault and sentenced.  In looking at your past and present behaviour towards the department, there is nothing to indicate you have been anything other than cooperative towards the department and authorities in Australia.  I can consider whether there would be consequential cancellations, however you have said your wife and the step children have already returned to South Africa.  In terms of legal consequences, there can be a bar in section 48 to apply for further visas if you have had a visa cancelled.  And you have said that you would have the opportunity to go and live with your brother, seek further work and apply for a further visa if your bridging visa is reinstated.

21. Obviously, you would have very limited time in which to do that.  Also, if your visa is cancelled there would be other effects.  You would remain in detention.  If any future visas you applied for required public criterion 4013 to be met, that would also be problematic for you.  In terms of international obligations that could be breached, as it is a bridging visa this would not, in itself, result in you being removed from Australia as you can still apply for a further bridging visa pending the determination of your subclass 187 visa.

22. Looking towards any other relevant matters, you have pleaded guilty, you have had a sentence imposed which you have served, and your personal circumstances you seem to have come to grips with a lot more.  You have looked at your diagnosis of Post Traumatic Stress Disorder and you are receiving treatment for that condition.  Your brother, Thomas, said that he can support you in looking for another visa.  And the ultimate sentence imposed for this matter was four months.  Given the circumstances as a whole, I think the decision should be set aside and substituted with a decision not to cancel your visa.

23. That means that your application is successful.

    DECISION

    Kate Millar
    Senior Member