Jones (Migration)

[2019] AATA 845

Jones (Migration) [2019] AATA 845 (25 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Benjamin Jack Jones

CASE NUMBER:  1821633

HOME AFFAIRS REFERENCE(S):           BCC2018/3878402

MEMBER:Moira Brophy

DATE:25 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 25 January 2019 at 3:53pm

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – ground for cancellation – risk to safety of Australian community or individual – charged with a serious indictable offence – consideration of discretion – long term effects of cancellation on future ability to travel – remorseful for conduct – undertook anger management course – moderating alcohol consumption – prospect of recidivism – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

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

STATEMENT OF DECISION AND REASONS

ISSUE

1. The issue is whether the ground for cancellation is made out and if so, whether the visa should be cancelled.

   APPLICATION FOR REVIEW

2. This is an application for review of a decision dated 20 July 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s.116 of the Migration Act 1958 (the Act).

3. The delegate cancelled the visa under s.116(1)(e)(i) on the basis that the delegate was satisfied that the presence of the applicant in Australia is or may be, would or might be, a risk to the health or safety of the Australian community.

4. The applicant appeared before the Tribunal on 16 January 2019 to give evidence and present arguments.

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)(i). 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.

   Background

7. The applicant is a 21-year-old national of United Kingdom. He applied for and was granted a Working Holiday (subclass 417) visa. He arrived in Australia on 11 April 2018.

8. According to a Statement of Facts on 3 June 2018 at Mildura Sandbar Nightclub, the applicant allegedly threw a singular punch that hit the victim on the left side of his face. As a result, the victim was knocked to the ground and lost consciousness for a short period. Following the assault the victim was found to have sustained two jaw fractures, he was hospitalised and he underwent surgery to correct the jaw fractures and to remove a tooth.

9. On 17 June 2018, the applicant was arrested and interviewed at Mildura Police Station where he was made aware of the victim’s injuries. He made a full admission to punching the victim on 3 June 2018.

10. On 18 June 2018, the Department was informed by Victoria Police, that the applicant has been charged with the following offences:

    ·Recklessly Cause Serious Injury

    ·Recklessly Cause Injury

    ·Unlawful assault

11. On 6 July 2018, in accordance with s.119 of the Act, the applicant was issued with a Notice of intention to consider cancellation under section 116 of the Act (NOICC). On 9 July 2018, in response to the NOICC, the applicant provided the following documents:

    ·A letter of support from the applicant’s uncle, Mr Matthew Evans

    ·A letter from the applicant, explaining his version of the event and stating that he is remorseful and had taken steps to help manage his anger

    ·Screenshot of an online Anger Management Course Module and the payment receipt for the course

    ·Screenshot of the applicant’s registration as a Pharmacy Technician.

12. On 20 July 2018 the delegate made the decision to cancel the visa applicants Working Holiday (subclass 417) visa.

13. In support of his review to this Tribunal, the applicant provided the following additional documents:

    ·A letter from the applicant, explaining his version of the event

    ·The applicant’s resume

    ·An Enhanced Criminal Record Certificate from Disclosure & Barring Services, dated 23 August 2015

    ·A letter of apology to Mr Brodie Hancock

    ·A National Police Certificate, dated 20 December 2018

    ·The applicant’s legal payment receipt, dated 12 September 2018

    ·A Statement of Fines and Penalties imposed from Magistrates’ Court of Victoria, dated 12 September 2018

    ·A letter of confirmation from Me Robert McInnes, Counsellor from Cognitive Principle Therapy Pty Ltd, confirming the applicant’s completion of the Anger Management Course

    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. The Tribunal acknowledges that the applicant has been charged with a serious indictable offence which involves a violent act towards another person.  The Tribunal was mindful of the evidence the applicant has conceded that his conduct was wrong and pleaded guilty to the charge.

17. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(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

18. Having found that a ground for cancellation under paragraph 116(1)(e) of the Act exists, the Tribunal must exercise its discretion to determine whether or not the decision to cancel the applicant's Subclass 417 visa is the correct and preferable decision, taking into account all of the relevant circumstances of the case.

19. 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’.

20. The Tribunal finds that the applicant originally came to Australia on a Working Holiday visa. On the evidence given at the Tribunal the visa applicant first worked in Mildura on a solar farm. He then travelled to Emerald in Queensland where he worked on another solar farm. He then came to Sydney where he has worked on various construction sites, most recently he has been working on the west connex project. The Tribunal finds on the evidence before it that the applicant has substantially complied with his visa terms.

21. The Tribunal considered the long term effect of a cancellation on the visa applicant. He was a young man who wanted to continue to work and travel. The Tribunal accepts that the applicant had hoped to stay in Australia indefinitely. He worked in Mildura hoping this work in a country area would enable to gain the extra year on his visa. The disruption to his time caused by the charges being laid has led to his probably not being able to satisfy those requirements. As was explained at the time of hearing the applicant has only ever held a temporary visa while in Australia which created no expectation that the applicant would be able to remain in Australia on a permanent basis. However if he were to want to travel to Australia or any other country in the future the fact he had a cancellation of his visa which would appear on his record would pose a serious problem.

22. In the immediate term a cancellation of his visa would result in the applicant’s detention and logistically that would cause problems in terms of his employment and his living arrangements in that he has rental obligations to his flat mates.

23. In considering this matter the Tribunal also places weight on the fact that the applicant is very remorseful about his conduct, has pleaded guilty to the charges and has taken active steps, undergoing psychological treatment by way of an anger management course and moderating his alcohol consumption, to ensure that such conduct does not occur again.

24. The Tribunal accepts that the applicant has no other criminal history. It accepts that the applicant has strong support from his family and friends. He told the Tribunal he has travelled, worked and lived with three friends from his childhood since he left the UK. The Tribunal appreciates the stresses of such sustained contact with a group of friends and was satisfied it was a measure of the applicant’s character that he continued to enjoy the support of his friends. There was no evidence of there being a pattern of behaviour involving violence against others. The Tribunal places significant weight on the fact that the applicant himself recognises the inappropriate nature of his conduct, his guilty plea and the fact he engaged in treatment and behavioral modification on a voluntary basis. His evidence to the Tribunal is that he will continue with treatment in the future. The Tribunal is satisfied that the applicant has taken meaningful and effective steps to deal with anger management so that the behaviour that led to the charge does not occur again.

25. Having regard to all the evidence before it, the Tribunal is satisfied that the applicant's conduct leading to the charge was out of character, in part caused by his reaction to being continually bumped on the dance floor after a long day at work and excessive alcohol use on that particular occasion. The Tribunal is satisfied that the applicant has had psychological assistance and that he will continue to moderate his alcohol consumption. The Tribunal has formed the view that the applicant's involvement in the criminal process, the charge and the subsequent cancellation of his visa, have had a significant impact on him and will ensure that such conduct does not occur again.

26. The Tribunal was satisfied on the evidence before it the visa applicant had maintained contact and co-operation with the department since being notified of the intention to cancel.

27. The Tribunal was satisfied there would be no consequential cancellations under s.140. The Tribunal was further satisfied there was no compelling reason for his having to remain in Australia.

28. In the context of the evidence in this matter the Tribunal was concerned the long term effects of a cancellation could be disproportionally harsh on the visa applicant in that it would have ramifications on his future intentions.

29. Having regard to the findings above and the circumstances of the case, the Tribunal is satisfied that the reasons for not cancelling the visa outweigh the reasons for cancelling the visa. The Tribunal finds that not cancelling the applicant's visa is the correct and preferable decision.

    DECISION

30. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

    Moira Brophy
    Member