Hodgson-Te Tau (Migration)

[2020] AATA 4591

Hodgson-Te Tau (Migration) [2020] AATA 4591 (25 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wiremu Jnr Hodgson-Te Tau

CASE NUMBER:  1931486

HOME AFFAIRS REFERENCE(S):          BCC2019/3565909

MEMBER:Kate Millar

DATE:25 August 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 25 August 2020 at 3:11pm

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – ground for cancellation – risk to safety of Australian community or individual – aggravated assault, aggravated assault causing harm and property damage – further charges after cancellation of visa – currently subject to an intervention order – consideration of discretion – born with foetal alcohol syndrome – diagnosed with ADHD – family support – considerable financial hardship to applicant’s family – utility in cancelling visa under s.116 – eligibility for another Subclass 444 visa – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116

CASES
Gong v MIBP [2016] FCCA 561
Hodgson-Te Tau and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1770
Tien v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mr Hodgson-Te Tau is 19 years old, and a citizen of New Zealand.  When he was 18, he was charged and pleaded guilty to aggravated assault, aggravated assault causing harm and property damage.

2. As a result of these offences, a delegate of the Minster for Immigration, Citizenship and Multicultural Affairs cancelled his Subclass 444 (Special Category) visa on the basis that he might be a risk to the health and safety of an individual or individuals. 

3. This is an application for review of a decision dated 30 October 2019 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).

4. Mr Hodgson-Te Tau appeared before the Tribunal on 24 February 2020 and 14 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from his mother Mrs Joanne Te Tau.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   THE HEARING OF THIS MATTER

6. Mr Hodgson-Te Tau has been difficult to engage in the review process.  The Tribunal contacted him on numerous occasions in an attempt to obtain information that should be readily available to him.  It is mindful that he is relatively young and was in immigration detention until July 2020, as well as having suffered from foetal alcohol syndrome and ADHD.

7. On 28 January 2020, Mr Hodgson-Te Tau was requested to provide a current Australian and New Zealand Police check, any sentencing remarks and the sentence for property damage and aggravated assault, details of the charge of disorderly behaviour, a family tree showing the names and location of family members.  Mr Hodgson-Te Tau did not provide any of the information requested of him prior to hearing. 

8. At the hearing on 20 February 2020, Mr Hodgson-Te Tau stated he had a further hearing regarding the criminal charges on 17 March 2020, and the Tribunal adjourned the hearing pending the outcome of this court date.  Mr Hodgson-Te Tau said he had pleaded guilty to the assault and property charges and this court date would finalise sentencing together with a further charge of disorderly behaviour.  Mr Hodgson-Te Tau failed to provide further information and this has required follow up on several occasions.  While his lawyer for the criminal proceedings provided initial submissions on the cancellation of his visa, further attempts to obtain information from this lawyer about sentencing were not successful. 

9. In this period, the decision in Hodgson-Te Tau and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[1] was handed down, a decision in the General Division of this Tribunal regarding the cancellation of Mr Hodgson-Te Tau’s bridging visa.  It is apparent from this decision that Mr Hodgson-Te Tau had provided considerable information and statements from third parties that he had not provided for the purposes of this application.  With the consent of Mr Hodgson-Te Tau, the Tribunal obtained documents he had tendered for that matter. 

   [1] [2020] AATA 1770

10. A letter dated 16 July 2020 from Mr Hodgson-Te Tau’s solicitor was provided to show the current status of the criminal charges.  This letter states (in summary):

    ·     In accordance with Mr Hodgson-Te Tau’s instructions, a plea of guilty had been entered for the charge of disorderly conduct.

    ·     It had been conceded a term of imprisonment was the appropriate outcome for the assault and property damage charges against him.  It is stated that the prosecution do not oppose a sentence of less than 12 months or that the sentence is wholly suspended. 

    ·     An order was made on 10 July 2020 that he engage with the Abuse Prevention Program.

    ·     On confirmation of enrolment, the matter will be listed again for sentencing which is anticipated to be in or around February 2021. 

11. Given the matter is unlikely to be listed again until February 2021, which would then be a year after the first hearing, the Tribunal decided to proceed with its consideration.  A further hearing was held via Microsoft Teams on 14 August 2020 to hear from Mr Hodgson-Te Tau.  At this hearing his mother also gave oral evidence.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. Under s.116 of the Act to cancel a person’s visa, a ground to cancel the visa must be established, after which the Minister and the Tribunal in place of the Minister, must decide whether the person’s visa should be cancelled.

13. 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. 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.

    Does the ground for cancellation exist?

14. 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].

15. 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.

16. In this case, Mr Hodgson-Te Tau has pleaded guilty to offences against his then girlfriend.  These occurred while he was living with her.  After his visa was cancelled, he was charged with a further offence of disorderly conduct.

17. As set out in the delegate’s decision, and as reported by SA Police, the offences against his girlfriend involved:

    ·     Assault by grabbing the victim’s arm and yelling in her face.

    ·     Assault by throwing a shard of glass at the victim’s head hitting her in the forehead in the hairline causing pain.

    ·     Assaulting the victim by using two hands to push her in the chest, pushing her backwards so she landed on the bedframe causing significant pain in the lower back and spine.

    ·     Assaulting the victim by gripping her jaw tightly to stop her making noise causing swelling in her jaw and pain.

    ·     Assaulting the victim by taking a lit cigarette and pushing it into her face causing a burn mark and immediate pain.

    ·     Damaging property by throwing an iPhone across a room into a skirting board breaking the screen.

    ·     Damaging property by kicking a screen door and letterbox. 

18. After his visa was cancelled, he was charged with a further offence of disorderly behaviour.  According to Mr Hodgson-Te Tau, this involved an incident where a person was jumping on a police car.  He denies jumping on the police car, but then later said at hearing that he asked his friends what happened and they told him he was talking back to police so he has pleaded guilty to being verbally abusive to police. 

19. He pleaded guilty to the charges of aggravated assault, assault on a domestic partner (4 counts), aggravated assault causing harm (1 count), property damage (2 counts) and the charge of disorderly conduct. 

20. He is currently subject to an intervention order preventing him approaching the victim and appears to be on bail which prevents him leaving the state. 

21. Mr Hodgson-Te Tau’s past behaviour displays a possibility that he would be a risk to the health and safety of a domestic partner.  He has pleaded guilty to an offence of disorderly behaviour and this displays a possibility of a risk to the good order of the Australian community.

22. For these reasons, 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

23. 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’.

24. Mr Hodgson-Te Tau was adopted by his parents following his removal at birth from his biological mother.  His adoptive father is his paternal grandmother’s younger brother.  He said he was removed from his biological mother because she was constantly under the influence of drugs and alcohol.  He was born with foetal alcohol syndrome.  He stated he was diagnosed with ADHD and prescribed Ritalin from a young age.  He attempted to regain contact with his biological mother during a period he returned to New Zealand, however this did not go well and he does not have contact with her.

25. Mr Hodgson-Te Tau first came to Australia in 2008.  Since then he has returned to live in New Zealand for up to 18 months on two occasions and has visited New Zealand a number of times.  Of the periods he returned to live in New Zealand, he returned once to live with his sister and attend boarding school and in the second period he returned to New Zealand with his father following the death of his grandmother. 

26. Mr Hodgson-Te Tau completed Year 12 in 2017 in New Zealand and did well at school.  After finishing his secondary education, he returned to Australia and initially lived in Brisbane before settling in Adelaide at the end of 2018.   

27. He has worked in construction in sprinkler systems for his brother.  He was to commence an apprenticeship with his brother, however in his statements his brother says this is now in jeopardy.  By the time of the second hearing, his brother was unable to return to South Australia from Victoria due to COVID-19.  Mrs Te Tau said that his apprenticeship is still available if his brother is able to return from Melbourne and has sufficient work.  This conflicts a little with evidence given by Mr Hodgson-Te Tau that he was getting into trouble with his brother for coming in to work late, however the Tribunal accepts he will have work and a potential apprenticeship with his brother if he remains in Australia. 

28. He was ordered to do a Domestic Violence course, and says he attended 5 or 6 sessions but was unable to complete the course as he was taken into immigration detention.  On being released from detention, and since his last court date, he says he has enrolled in the course and had attended 2 – 3 sessions.  The Tribunal was unable to contact the course co-ordinator.  Mr Hodgson-Te Tau’s mother confirmed he had attended the course as she had collected him from the course.  He provided the location of the course and showed the Tribunal the course booklet. 

    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

29. Mr Hodgson-Te Tau held a Subclass 444 which allows an indefinite stay in Australia.  As such he is not required to have a purpose to be in Australia, unlike other subclasses of visa.

30. His parents and siblings and their children all live in Australia.  On being released from immigration detention he has returned to live with his parents.  His sister and 14-year-old nephew also live in the household. 

31. Mr Hodgson-Te Tau’s brother has end stage renal failure.  His mother donated a kidney to his brother however this failed. His mother developed thrombocytosis, which results in a thinning of her blood, and chronic obstructive pulmonary disease (COPD).  As a result, while she works full time, she is currently working solely from home.  She said she requires help with cleaning, cooking and setting the fire and having firewood available.  She sanitises the home regularly as she is in a high-risk group.

32. His father works long hours.  Mrs Te Tau gave evidence that if Mr Hodgson-Te returns to New Zealand, his father will go with him to assist him to find housing and a job.  This will place significant financial pressure on the family, and Mrs Te Tau said she did not know if she would meet be able to meet household expenses or continue assist her other son, who is unable to work, on her income alone. 

33. His two brothers and their children live in Adelaide, although one of his brothers is currently unable to return to Adelaide due to COVID-19 restrictions as he was working in Melbourne.. 

34. His other brother is on dialysis 3 – 4 days a week for five hours per day.   This brother lives with his partner, who works full time. Mr Hodgson-Te tau assists his brother at times when he is on dialysis and also when he has access to his son Thursday to Monday every second week. 

35. The Tribunal finds Mr Hodgson-Te Tau has compelling reasons to remain in Australia to assist his family. 

    The extent of compliance with visa conditions

36. A Subclass 444 visa does not have any conditions attached to it and compliance with conditions does not apply.

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

37. If Mr Hodgson-Te Tau is required to leave Australia, his father will return with him to New Zealand to assist him to re-establish himself.  His mother said this will cause significant financial difficulty and she is not sure if she can afford the mortgage, bills and cost of food without her husband’s salary.  She says she is assisting another son financially as he is unable to work due to his renal condition. 

38. Cancelling Mr Hodgson-Te Tau’s visa will cause considerable financial hardship to his family.  It will result in his parents living separately for a period and place an added financial and emotional burden on them in addition to supporting their other children and grand-children.  It will cause his mother hardship both emotionally and also in the loss of assistance he provides around the house.

39. Mr Hodgson-Te Tau provides assistance to his brother, his mother and his nephew all of whom would suffer hardship if he is required to leave.  He is involved in the lives of his nephews and nieces who would also suffer hardship if he were required to leave Australia.  

40. Mr Hodgson-Te Tau has some extended family members in New Zealand.  He said he would be unable to return to live with family in New Zealand, as they live in areas with high unemployment and high gang involvement.  He said he would be eligible for government payments but would need to look for housing and a job if he returned to New Zealand. 

    The circumstances in which ground of cancellation arose

41. Mr Hodgson-Te Tau and his parents have provided a consistent account of the background to the offending.  Mr Hodgson-Te tau says at the time, he had started working and was earning money.  He moved in with his girlfriend and her father two weeks after they commenced a relationship and says he was too young for the relationship.  He said he was 100% in the wrong and believes he is no longer a risk to others.  He was working long hours and when he came home nothing was done and he got frustrated.

42. His partner had anxiety and was smoking marijuana.  Mr Hodgson-Te Tau made some concerning comments at the hearing such as he could “flick her arm and they just bruise” and that a small crack on the back of her phone resulted in the whole screen being smashed.  This contrasts with other statements he made at the hearing that he was “100% in the wrong” for what happened. 

43. His statements at hearing show he has some way to go in terms of rehabilitation, however he has recommenced the domestic violence course and  returned to live with his family. 

    Past and present behaviour of the visa holder towards the Department

44. Of significant concern in this matter is that Mr Hodgson-Te Tau was charged with a further offence of disorderly conduct after his visa was cancelled.  At the hearing on 24 February 2020, he was clear that he would plead not guilty to this offence and would be exonerated due to footage that would be apparent on who was on the police car.  He has subsequently pleaded guilty.  That he engaged in behaviour resulting in further charges after his visa was cancelled weighs in favour of cancelling his visa. 

    Whether there would be consequential cancellations under s.140

45. There would not be any consequential cancellations if Mr Hodgson-Te Tau’s visa is cancelled. 

    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

46. Mr Hodgson-Te Tau current holds a Subclass 050 (Bridging Visa E). This visa ceases 35 days after the Tribunal makes a decision (cl.050.513(1)(aa) of Schedule 2 of the Migration Regulations 1994). This gives him 35 days as a lawful non-citizen before his BVE ceases.

47. In this time, he could seek a further Subclass 444 visa. If he has not been sentenced to a term or terms of imprisonment that add up to at least one year, and has not been removed or deported from Australia or another country, he will be eligible for a further Subclass 444 visa (s.32 of the Act, r.5.15A and Part 444 of Schedule 2 of the Regulations). Neither of these exclusions apply at the date of this decision.

48. If the Tribunal affirms the decision to cancel Mr Hodgson-Te Tau’s visa and his BVE ceases, he will be an unlawful non-citizen and liable to detention under s.189 of the Act.  If he is unlawful he will have to apply for another visa, or leave Australia, or be removed from Australia under s.198.

49. Mr Hodgson-Te Tau could also apply for a further Subclass 444 visa before being removed or deported from Australia if his BVE ceases.  In those circumstances, unless he is sentenced to imprisonment for a term or consecutive terms of one year or more, he will also meet the requirements in relation to behaviour unless he has been removed or deported. 

1. If he is removed or deported from Australia, he will not be eligible for a further Subclass 444 visa as he will be a behaviour concern non-citizen as defined in s.5 of the Act.  If, on the other hand, he leaves Australia without being removed or deported, he could seek another Subclass 444 visa on again entering Australia if he meets the behaviour requirements.[2] 

   [2] New Zealand citizens are not required to have a visa to travel to Australia (s.42(2A) of the Act).

2. It appears unlikely on the advice of his lawyer that he will be sentenced to a term of imprisonment for at least one year. At the date of this decision he has not been sentenced and continues to meet the behaviour requirements for the visa.   If this is the case, there is little utility in cancelling his visa as he can seek another Subclass 444 visa if he applies prior to leaving, or if he leaves but is not deported or removed. 

3. While this seems a little counterintuitive, it is consistent with what is otherwise a permanent visa. A permanent via cannot be cancelled under s.116(1) if the holder is in the migration zone and was immigration cleared on least entering Australia (s.117(2)). It also reflects the ability to cancel this type of visa under the character requirements of s.501 of the Act, which is generally reserved for permanent visas.

4. If he is removed or deported, however, there is no pathway for him to return as he will not meet the behaviour requirements for a further Subclass 444 visa under s.32 of the Act.  There are no other readily apparent visa options available to him at this time.  This leads to an arbitrary response where the outcome will depend on the time at which he seeks a further Subclass 444 visa. 

5. Mr Hodgson-Te Tau was under the impression he would be able to could return to Australia in three years if he is required to leave.  This appears to refer to Public Interest Criterion 4013.  This does not apply to a Subclass 444 at this time visa but is a requirement of other types of visa.  It is not readily apparent that Mr Hodgson-Te Tau would qualify for another type of visa. 

6. This factor weighs in favour of not cancelling his visa. 

   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

7. Mr Hodgson-Te Tau does not rely on any potential beach of non-refoulement obligations.  He is actively involved in the lives of his nieces and nephews, in particular his nephew who lives with him and his brother’s daughter. He does not have a parental role for these children.  It is in the best interests of these minor children that he remains in Australia.

   If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

8. Mr Hodgson-Te Tau’s immediate family all live in Australia.  He currently lives with his parents and his sister, as well as his sister and 14-year-old nephew.  He has strong family ties in Australia.

   Any other relevant matters

9. Mr Hodgson-Te Tau has returned to live with his parents.  His parents provided a joint statement, a statement from his father and his mother gave oral evidence.

10. The statements from his parents are that females are highly respected in their culture. His father’s statement was that it was hard for me to accept that Wiremu had done these things to any person let alone a female as he was not raised this way.

    CONCLUSION

11. It weighs against Mr Hodgson-Te Tau that he committed a further offence after his visa was cancelled and that some of his statements at the hearing did not show that he had engaged with his conduct to date.  He has now re-engaged with the domestic violence program and has returned to live at home where his parents and extended family support positive behaviour towards women.  The utility of cancelling his visa is questionable if he can seek another Subclass 444 visa up to the time he is removed or deported from Australia, or is sentenced to a term or terms of imprisonment of at least one year.

12. If Mr Hodgson-Te Tau is required to leave Australia, his father will return with him to New Zealand to assist him to re-establish himself.  His mother said this will cause significant financial difficulties and she is not sure if she can afford the mortgage, bills and cost of food without her husband’s salary.  She says she is assisting her son financially as he is unable to work due to his renal condition. 

13. Mr Hodgson-Te Tau should consider himself very fortunate to have such support from his family as this weighs in favour of not cancelling his visa.  However, he should be mindful that should he again offend the cancellation of his visa can again be considered. 

14. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

15. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

    Kate Millar
    Senior Member