HOGAN (Migration)

[2018] AATA 3263

HOGAN (Migration) [2018] AATA 3263 (26 June 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Robert Paul HOGAN

CASE NUMBER:  1805284

HOME AFFAIRS REFERENCE(S):           BCC2017/4518009

MEMBER:Ann Duffield

DATE:26 June 2018

PLACE OF DECISION:  Brisbane

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 26 June 2018 at 11:30am

CATCHWORDS
Cancellation – Migration – Special Category (Temporary) (Class TY) – Subclass 444 (Special Category) –Criminal history – Risk to the Australian community – Discretionary factors – Lived in Australia since childhood –Remorseful – Good signs of rehabilitation – Unlikely to re-offend – Decision under review set aside

LEGISLATION
Migration Act 1958, s 116

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 14 February 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 applicant’s lengthy criminal history satisfied him 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.. 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 25 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s father.

4. The applicant was not represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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)(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

7. 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].

8. 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.

9. Following a summons to the Queensland Police Service, the Tribunal was provided with the applicant’s criminal history which it subsequently provided to the applicant for comment. The Tribunal informed the applicant that the information was relevant to the review because it may indicate that his presence in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals, and invited his comment. The Tribunal also informed the applicant that he would have the opportunity to further respond at the Tribunal hearing and that depending upon his response, the Tribunal may affirm the decision to cancel his visa.

10. The applicant provided the Tribunal with a written response indicating that he had genuinely forgotten some charges and convictions of the past and was genuinely remorseful for his past behaviour. [Details of criminal charge 1]. The applicant claims that he has rehabilitated since being in prison and will not commit those offences again. The Applicant and his father in a witness statement told the Tribunal that the applicant was not a danger to other members of the Australian community and would never hurt his father.

11. The applicant was charged with a number of offences beginning in 2012 when he was around 18 years old. These included [list of offences deleted]. The last charges were in November 2017 for [list of charges deleted]. He pleaded guilty to those charges and was released from prison on 16 May 2018 with time served, whereupon he was immediately taken into immigration detention. He subject to bail conditions including weekly reporting and random urine testing, until May 2020.

12. The applicant is 23 years old and was born in New Zealand. Apart from a short period overseas, he has lived in Australia almost his entire life and with his father since around the age of three years. All his family reside in Australia except his 90 year old grandfather who has remained in New Zealand.

13. The applicant is one of three brothers; the eldest of whom [died] when the applicant was five years old. The applicant has a troubled relationship with both his parents and his elder brother that has included [various issues] between all members of the family. [Sentence deleted].

14. The applicant is neither married nor partnered, and does not have any children. He worked full time prior to his incarceration. He lives with his father against whom the [charges refer to].

15. The applicant has agreed that the grounds for cancellation exist. The Tribunal equally so agrees.

    CONSIDERATION OF DISCRETION / CONCLUSIONS

16. For these reasons, the Tribunal is satisfied that the ground 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

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’.

18. The applicant first arrived in Australia on 17 December 1995, when he was 10 months old. He departed again with his father and brother in October 2002 and returned in January 2007. The applicant has therefore lived in Australia for all but five years of his life.

19. The applicant has a full time job as a panel beater and is well regarded by his employers and peers. He has no family aside from his grandfather in New Zealand.

20. The applicant’s father gave evidence that he has only 19% lung capacity and relies on the applicant for income support and help around the house. They claim to be each other’s best friends and the incident for which the applicant was convicted was symptomatic of issues that they both had to deal with, including the [death] of the applicant’s brother. The applicant’s father told the Tribunal that he was on a lung transplant list which depended upon him having at home care. He said that without the presence of the applicant he would be taken off the list and therefore faces an early death.

21. The Tribunal heard from both the applicant and his father of the circumstances in which the applicant grew up. These included a violent and psychologically destructive mother, the [death] of the applicant’s elder brother, the removal of the family from their mother and the efforts of the applicant’s father to raise them. [Circumstances related to Criminal Charge 1 deleted].

22. Both the applicant and his father gave evidence that the applicant had used the eight months he spent incarcerated to good use. The applicant showed the tribunal a number of workbooks he had completed for courses he attended whilst incarcerated including courses dealing with anger management, substance and alcohol abuse. He told the tribunal that he had been clean for eight months and did not intend to drink or take drugs again. He has discovered a talent for drawing whilst in detention and wants to resume his passion of restoring cars with his father.

23. The applicant’s remorse, in the Tribunal’s mind was genuine and his efforts at rehabilitation authentic; not just something contrived to satisfy the Tribunal.

24. In the Tribunal’s mind the circumstances surrounding the cancellation of the applicant’s visa will not arise again. Both he and his father [claim] that the applicant’s rehabilitation has been real and genuine. They claim that they see the period of incarceration as putting them eight months ahead of the rehabilitation process in that the applicant is already clean and dry. The challenge outside a controlled environment, of course, is for him to remain clean and dry. In the Tribunal’s view the applicant has shown a determination to do this and a capacity for self-awareness and betterment.

25. The applicant has been compliant in all other ways in relation to his visa and cooperative with the department. Records from his time in prison show that he was by all accounts a model prisoner who engaged productively in rehabilitation and self-betterment programs.

26. The Tribunal has considered the evidence and is satisfied that the applicant does not represent a risk to the broader Australian community. [Circumstances related to criminal charge 1 deleted]. There are clearly a number of underlying issues that the parties to this [incident] need to address, including and especially the [death] of the applicant’s brother and there has been acknowledgement of that. The applicant has told the Tribunal that he intends to resume psychological counselling and continue his efforts at rehabilitation. The Tribunal accepts that the applicant’s past efforts and future commitment in these matters are genuine.

27. The Tribunal also notes that the applicant is on strict bail conditions including weekly reporting and random drug testing. Along with the constant threat that his visa may be cancelled again, the Tribunal has formed a view that the applicant is unlikely to re-offend in any way.

28. Given the strong supporting evidence provided by the applicant’s father, who is the only victim of the applicant’s violence, the Tribunal is not satisfied that cancelling the applicant’s visa is the correct and preferable decision. Having weighed and considered all the evidence, the Tribunal concludes that the visa should not be cancelled

    DECISION

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

    Ann Duffield
    Senior Member