Heke (Migration)

[2018] AATA 3473

Heke (Migration) [2018] AATA 3473 (10 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kazman Kalpo Heke

CASE NUMBER:  1809769

HOME AFFAIRS REFERENCE(S):           BCC2017/3920003

MEMBER:Ann Duffield

DATE:10 July 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 10 July 2018 at 9:51am

CATCHWORDS
Migration – Cancellation – Special Category (Temporary) (Class TY) – Subclass 444 (Special Category) – Risk to health, safety or good order – Bridging visa – Criminal history in Australia – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 116, 198, 375A, 501

CASES
Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 March 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 delegate cancelled the visa under s.116(1)(e)(ii) on the basis that the presence of the applicant is or may be, or would or might be, a risk to the health or safety of an individual or individuals. The delegate made this finding on the basis of the applicant’s extensive criminal record. 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 on 5 July 2018 to give evidence and present arguments.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   BACKGROUND

5. The applicant had previously appealed a delegate’s decision to refuse a Bridging Visa. That decision was set aside by the presently constituted Tribunal on 24 April 2018. The Department of Home Affairs however did not process that remittal and the applicant has remained in detention. He appeared at the hearing via video link and his family, including his partner and four children attended the hearing at the Brisbane registry.

6. The Tribunal issued a summons to the Queensland Police Service to provide it with a copy of the applicant’s criminal history. That was provided on 16 April 2018 and sent to the applicant informing him that the information contained in his criminal history would, depending upon his response, form the reason or part of the reason for affirming the decision under review. The Tribunal informed the applicant that it would discuss those matters with him at the hearing. That history is also being relied upon in this review. This information was covered by a 375(a) certificate issued by the department. This was not discussed with the applicant as the information was obtained by the Tribunal directly from the QPS and provided to the applicant.

7. In summary, the applicant has been convicted of the following offences, starting with the latest:

   [Details deleted].

8. The Tribunal received a submission from Ms Caroline Pellow, the applicant’s partner of 15 years and the mother of his four children. She claims that the applicant has made some mistakes in the past and struggled to keep it together. She claims that the applicant has changed for the better and they are working together to provide a positive environment for their children. [Sentence deleted].

9. The Tribunal notes that [for a particular offence] the applicant was convicted and sentenced to 30 months imprisonment. The parties live at separate addresses.

10. The applicant was previously subject to a consideration to cancel his TY444 visa in 2014 but the delegate proceeded not to cancel. He was issued with another notice of intention to consider cancellation of his subclass TY444 visa on 21 December 2017 as he had continued to reoffend multiple times since the formal warning he received on 29 April 2014.

11. [Details deleted].

12. [Details deleted].

13. [Details deleted].

14. In total, the applicant has been convicted and sentenced to periods of incarceration of more than 48 months.

15. The applicant did not provide the Tribunal with the Judge’s sentencing remarks or other mitigating information. The applicant has expressed to the Tribunal his remorse for his actions and the Tribunal accepts that he is genuine in that regard. He has also made efforts at rehabilitation. The Tribunal has taken all matters into account and weighed them accordingly.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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(i)(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.

    Does the ground for cancellation exist?

    s.116(1)(e) - risk to Australian community or individual

17. 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].

18. 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. In this particular case, the visa was cancelled under s.116(1)(e)(ii) in that the delegate was satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals.

19. The applicant has been on notice since his visa was considered for cancellation in 2014 that his continued criminal behaviour could result in its eventual cancellation and his deportation from Australia. Despite this, he has continued to offend and his most recent [offences] leave the Tribunal in no doubt that the applicant presents a risk to the good safety of both a particular individual and individuals in the community more generally. His continued disregard for Australian law and his refusal to comply with court orders and bail conditions does not support his claims that his visa not be cancelled.

20. For the reasons above the Tribunal is satisfied that the grounds 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 visa should be cancelled.

    Consideration of discretion

21. 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’.

22. The applicant is a citizen of New Zealand born on 11 February 1983 (35 years old). He last entered Australia on a TY444 visa on 28 March 2016. He first arrived in Australia in March 1996 when he was around 13 years of age.

23. He has four children aged from 16 years to 11 years. He has been with his partner, Ms Pellow, for around 16 years. He claims that he and Ms Pellow are in a loving and supportive relationship and Ms Pellow is suffering from depression and needs him to remain in Australia to help her look after their children.

24. The Tribunal notes that he and Ms Pellow have not been living together for around two years. Some of that time the applicant has been incarcerated, however they had stopped living together for a period of time before that. The applicant told the Tribunal that he would not be moving back in with Ms Pellow immediately after his release as they would take their time to sort things out. Nevertheless, the applicant claims that he has continued to provide emotional and financial support to his children and Ms Pellow during the time they have spent apart. He claims to see his children a couple of times a week. He has provided no evidence of any financial support or of visiting his children.

25. [Details deleted].

26. The Tribunal notes that Ms Pellow attended the Tribunal hearing with her children but despite being asked on several occasions if she wanted to provide any evidence to support the applicant’s claims, she and the children declined to do so.

27. The applicant claims that he would go back into business with his brother, although his brother is also currently incarcerated, in a lawn mowing enterprise they both had. He claims that he would get his eldest children involved in that business and would be able to support his family. Asked how they had managed financially whilst he had been incarcerated in prison and in detention the applicant told the Tribunal that their families had provided financial assistance and support. He also claimed that Ms Pellow was working and they also received financial assistance from the government in terms of family tax benefits.

28. The Tribunal put to the applicant that his family appear to have managed to support themselves without his assistance and despite his incarceration. The Tribunal put to the applicant that whilst it may be difficult, it appeared that his family would be able to manage without him if he were to return to New Zealand and further, that he could continue to provide them with financial support from New Zealand. The applicant claimed that whilst their families had been able to assist them until now, they could not continue to do so. Asked if he had any evidence of the financial support he had provided to his family the applicant said that he didn’t think he needed to provide that.

29. The Tribunal asked the applicant if there were any reasons that he could not return to New Zealand or any reasons why his family could not visit him if he returned there. The applicant said that he has no family or friends in New Zealand and was afraid that he may return to a gang lifestyle without his family. He said he wanted to be a good role model for his children.

30. The Tribunal put to the applicant that his lengthy criminal history did not appear to be a good role model for his children and asked him what they thought of his [criminal history]. The applicant said that he felt bad about that and did not want that to be considered the sort of behaviour that his sons should think is appropriate. [Sentence deleted].

31. The applicant has consistently told the Tribunal that his abuse of alcohol is the cause of his criminal [behaviour]. He claims to have undertaken some courses whilst incarcerated and in detention to deal with his alcohol abuse and anger management issues. He claims that he will not drink excessively again and would continue to attend counselling. The Tribunal put to the applicant that he had been put on notice before that his visa would be cancelled if he continued to reoffend and asked him what would prevent his visa being cancelled a second time if the Tribunal made a decision to reinstate his visa. The applicant said that he had his family support and that his partner and children meant everything to him

32. The Tribunal accepts that the applicant has a need to remain in Australia but has also considered that his family, should they so decide, can move to New Zealand to be with him. The Tribunal has also considered that the applicant has previously had his visa considered for cancellation when he was convicted of several offences in 2012 and served a period of seven months in prison. The Tribunal does not accept that the applicant’s continued criminal activity and violence is outside his control. The Tribunal is not satisfied that the circumstances in which the ground for cancellation arose were beyond his control. The applicant has been on notice of the consequences of his actions for some six years.

33. [Details deleted].

34. The Tribunal has considered the hardship that may be caused to the applicant and his family, including his four children, if he has to depart Australia. There is no evidence, short of the applicant’s statements that he financially supports his family. Given that he has been in detention or incarcerated for the best part of 12 months, it is difficult to see what assistance he has been able to give, if any.

35. The Tribunal has considered Ms Pellow’s statements that she is suicidal and about to lose her job because of the stress the applicant’s incarceration and visa cancellation have placed on her and the family. She claims that she will always blame herself for the applicant’s removal from Australia should he be required to leave. The Tribunal also notes, however, that one of these statements is undated and both are unsworn. The Tribunal notes the medical certificate provided by Ms Pellow that she is being treated for depression. However Ms Pellow is in full time employment and her efforts, along with the support of other family members have ensured that she and her children are able to survive without the active support, financial or otherwise, of the applicant. The Tribunal accepts that the family will need to make a difficult choice of remaining in Australia or travelling to New Zealand with the applicant if his visa remains cancelled and he is deported. The Tribunal places significant weight on this hardship.

36. The Tribunal has also considered the written statement of the applicant’s eldest daughter and accepts that life has been difficult for her and her family whilst the applicant has been away. After the hearing the applicant sent the Tribunal a copy of his eldest daughter’s school report which shows that she is not doing well at school and that in some instances her behaviour has been recorded as unacceptable. The Tribunal has taken this into consideration. The Tribunal also accepts that the applicant has been a good worker as evidenced by an unsworn statement by a previous employer.

37. The Tribunal accepts that the applicant’s purpose for remaining in Australia is to live where he has lived for the past 21 years with his family. Accordingly, there is a compelling reason for him to remain in Australia and this weighs against cancellation.

38. There is no evidence before the Tribunal that the applicant has breached his visa conditions.

39. There is no evidence, nor does the applicant make a claim, that the cancellation of his visa would breach Australia’s international obligations. Accordingly, this consideration is neutral.

40. The Tribunal has considered the rights of the applicant’s children and accepts that they have spent the majority of their lives in Australia and are well integrated into the community. In considering the best interest of the children it is not sufficient to confine the issue to the natural bonds of love and affection between father and child. The best interests of the children include the expectations that they have a safe and nurturing household, to be free of danger to their life and health, to have proper access to education and to have contact, where it is safe to do so, with both their parents. In this case, the Tribunal has evidence before it that at least one of the children was a first-had observer to some violent [incidents]. This is a matter to which the Tribunal gives some weight towards cancellation of the visa. The Tribunal also notes that the applicant had not been living with his family prior to his incarceration and has told the Tribunal that he will not go and live them if he is released. The Tribunal has weighed these matters against the evidence that it is the preference of Ms Pellow and the children that the applicant remains in Australia.

41. The Tribunal has also considered the consequences of the applicant’s visa remaining cancelled. If the applicant’s visa remains cancelled it is likely the Department will arrange for his return to New Zealand rather than grant him a bridging visa. If this is the case, the applicant will be removed from Australia under s.198 of the Act which means he would fall within the definition of a behaviour concern non-citizen in s.5(1)(d) and would be barred from returning to Australia on a TY444. There may be other options available to him but because of his extensive criminal convictions which have attracted significant sentences, he would likely face refusal under s.501 of the Act. While it is difficult to speculate on what the Department might do in the applicant’s particular circumstances, the Tribunal is mindful that this remains a possibility.

    Conclusion

42. Having regard to all of the material before the Tribunal and weighing those matters carefully, the Tribunal concludes that it will not exercise its discretion to reinstate the applicant’s visa. The Tribunal has given significant weight to the seriousness and nature of the offending and the amount of time that the applicant has been sentenced for those crimes. While the Tribunal accepts that the applicant has made some attempts to rehabilitate, the fact that he has been put on notice on a prior occasion that his visa may be cancelled and has repeatedly not complied with court and bail directions only increases the Tribunal’s concerns about the existence of the potential risks both to an individual and individuals in the community.

43. Against this, the Tribunal has have had regard to the rights of the applicant’s children and the hardship that will be faced by the applicant and his family caused by separation and the potential mandatory legal consequences arising from this cancellation.

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

    DECISION

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

    Ann Duffield

    Senior Member