Kake (Migration)

[2021] AATA 356

Kake (Migration) [2021] AATA 356 (8 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Conrad Jerome Ihaka Kake

CASE NUMBER:  1932008

HOME AFFAIRS REFERENCE(S):          BCC2019/3503963

MEMBER:Kira Raif

DATE:8 February 2021

PLACE OF DECISION:  Sydney

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

Statement made on 08 February 2021 at 8:37pm

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – risk to good order of Australian community – criminal offences mostly against domestic partners – intervention orders, convictions, imprisonment and good behaviour bond – discretion to cancel visa – multiple incidents over years – little insight into behaviour – reconciliation with first partner – lengthy residence and extensive family and other ties to Australia – other family members in home country – started business after visa cancelled – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(e), (3)

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

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 1 November 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).

2. The applicant is a national of New Zealand, born in November 1984. He was granted the Special Category visa on 19 June 2017. On 11 October 2019 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that there may be grounds for cancelling the visa under s. 116(1)(e ) of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 1 November 2019. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 8 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner Ms Kake and his mother, Ms Makiri. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. 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 ). 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.

5. 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].

6. 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.

   Does the ground for cancellation exist?

   The primary decision record indicates that  on 17 August 2019 the applicant was found guilty of unlawful assault against his ex-partner and sentenced to a 12 months community corrections order. Further, on 15 June 2019 the applicant had been charged with the following offences in relation to his ex-partner

   ·Contravene Final Intervention Order

   ·Recklessly cause injury

   ·Unlawful assault

7. It is alleged that on 15 June 2019 the applicant was waiting for the victim at her home address and upon her arrival, the applicant began to question and abuse her. It is alleged that the applicant struck the victim in the face with an open hand, causing her nose to bleed.

8. On 29 June 2019 the applicant has been charged with the following offences in relation to his former partner

   ·Unlawful assault (2 charges)

   ·Commit indictable offence while on bail

   ·Contravene Family Violence Final Intervention Order (2 charges)

   ·Contravene Family Violence Final Intervention Order with intent to harm / fear (2 charges)

   ·Persistent contravention of Family Violence order

9. It is alleged that on 22 June 2019 the applicant attended the home of his ex-partner and had a verbal argument. It is alleged that he started swearing and yelling at the victim, grabbed the victim by the throat and pinned her up against the wall. It is further alleged that on 23 June 2019 the applicant returned to the home of the victim to collect personal belongings. When the victim refused to open the garage door, the applicant is alleged to have begun kicking and banging on the roller door and directed strongly abusive language at the victim and spat in her face.

10. The applicant told the Tribunal that he pleaded guilty and had been convicted of these offences. The applicant told the Tribunal that he spent two months in prison and had been on parole and had been given a good behaviour bond and now “everything has been completed”.

11. The primary decision record indicates that in addition to the above-described alleged breaches of the family violence orders, on 21 September 2016 the applicant had been found guilty of the following offences in relation to a different victim:

    ·Contravene Family Violence Final Intervention Order

    ·Wilfully damage property

    ·Unlawful assault

12. In his response to the NOICC the applicant acknowledges his offending and admits that he has made ‘bad judgments’ for which he is accountable. The applicant refers to the rehabilitation which he is willing to undertake and states that he plans to work and financially support his family.

13. The applicant told the Tribunal that his life has changed. The applicant told the Tribunal that in the past he was going through a hard stage. He has now moved from Melbourne to Brisbane and is around people who give him the right support. The applicant states that in Melbourne he was ‘hanging with the wrong people’ but now that he has moved, things are going the right way. The Tribunal acknowledges that evidence but is mindful that the convictions relate to violence against his partners, not the community in general and the Tribunal does not accept that the applicant’s physical relocation would affect his behaviour with respect to his partners. The applicant states that he no longer lives with his partner’s extended family that was causing problems in the past and his children are now with him 24 hours a day, so he is different. Again, the Tribunal is mindful that the applicant did have children when the past offences took place and the presence of the children did not prevent the applicant from engaging in violent or threatening conduct against his partners. The applicant confirmed in oral evidence that the family violence convictions relate to different partners.

14. The applicant said that he has participated in ‘private’ rehabilitation sessions. He regularly talks to family members and friends who have gone through the same experience and he has talked to his probation officer. The applicant’s evidence indicates that he has not participated in any formal rehabilitation programs.

15. The Tribunal acknowledges the evidence of Ms Makiri that the applicant is a different person and his partner’s evidence that the applicant no longer engaging in conflict but seeks to avoid it. The Tribunal accepts that they may genuinely believe the applicant’s behaviour is, and will be, different.

16. The Tribunal notes that the applicant has been convicted of multiple offences involving violence or threats of violence against his partners. The offences are multiple and occurred some years apart and in relation to two different partners, as the applicant confirmed in his evidence to the Tribunal. There had been formal family violence orders in place because it was determined that the applicant may pose a threat to others and the applicant had been convicted of breaching these orders. The applicant’s conduct shows, in the Tribunal’s view, his persistent disregard for the welfare of others, as well as the Australian laws. The fact that the applicant had been given a custodial sentence indicates that his offending was serious.

17. The Tribunal acknowledges the applicant’s evidence and the evidence of his partner and mother that he is now a different person and his circumstances have changed. The Tribunal accepts that the applicant has now reconciled with his partner, lives with his children and plans to operate a business. However, the Tribunal also notes that the most recent offending occurred a relatively short time ago, in mid-2019. In the Tribunal’s view, not enough time has passed to determine that the applicant will no longer engage in similar conduct in the future, whatever his circumstances. The Tribunal also places weight on the fact that the applicant had not engaged in any formal rehabilitation programs. Ms Makiri told the Tribunal there had been limited opportunities due to Covid and the applicant stated that he had informal conversations with family and friends and his probation officer. The Tribunal acknowledges the applicant’s willingness to participate in rehabilitation but the fact that he has not completed any formal programs, nor has been assessed, is of concern to the Tribunal.

18. It is also of concern to the Tribunal that the applicant appears to have little insight into his behaviour. He told the Tribunal that the family violence against his first (and present) partner occurred because of the involvement of the extended family and the family violence against his second partner occurred because it was a ‘toxic relationship’ and he was the one who was subjected to violence. It is not apparent to the Tribunal that the applicant appreciates the nature of his conduct and the effect it has on others.

19. The Tribunal places weight on the fact that the offensive conduct occurred during multiple incidents, years apart, that it involved violence or threats of violence against his partners which led to the issuance of the Family Violence Intervention Orders and his persistent breaches of such orders, that the family violence occurred in both relationships and the applicant’s failure to complete formal rehabilitation programs. Having regard to these circumstances, the Tribunal has formed the view that the risk of reoffending remains, even if that risk is minimised due to the applicant’s present circumstances. The Tribunal finds that the applicant’s presence in Australia may be a risk to the health or safety of others (his present or future partners or women more generally). For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) exists.

20. 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’.

    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

22. The applicant explains in response to the NOICC that he came to Australia to be with his mother and have better opportunities. The applicant refers to his relationships in Australia, including his three young children. The applicant told the Tribunal that he has been living in Australia for close to 12 years and his family is here. The applicant told the Tribunal that he is presently in a relationship with his wife, his previous relationship has broken down. The Tribunal accepts that the applicant has extensive family and other ties in Australia and that he is fulfilling the purpose of his travel to Australia.

23. The applicant told the Tribunal that his life has now changed. He lives with his children and has two young babies who are seven months old. The applicant told the Tribunal that he has five children (aged 17, 8 , 6 and two twin sons 7 month). The two children in New Zealand (his biological child and a step-child) are aged 16 and 13. The applicant told the Tribunal that he is a qualified mechanic and plans to open his own mechanic shop. He wants to engage with the youth and help them go on the right path. The Tribunal accepts that the applicant has business ties to Australia. The Tribunal accepts that the presence of the children and immediate family in Australia may constitute a compelling need for the applicant to remain in Australia.

    The extent of compliance with visa conditions

24. Nothing adverse is known about the applicant’s compliance with visa conditions.

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

25. The applicant states that his intention is to work and support his family, which he will be unable to do so if he cannot live in Australia. The applicant’s evidence is that he came to Australia to be with his family and to build his life. Most of his family are in Australia and he would be devastated if he was to return to New Zealand. The applicant states he wants to be with his children.

26. The applicant told the Tribunal that he has opened a mechanic shop about a month ago and has a lot of bills to pay. (The Tribunal is mindful that the business was opened after his visa was cancelled and the applicant was aware that there was a possibility that his visa would remain cancelled.) The applicant states that his wife and children are in Australia and his whole life is in Australia and if he has to leave, he would “lose it all”. The applicant states that his wife and children may come to New Zealand with him if the visa is cancelled but it would be very difficult because their whole lives and household is here and it would be hard to relocate the family and it will take time. The applicant states that the cancellation of the visa would cause emotional hardship and financial hardship.

27. The applicant’s evidence to the Tribunal is that if he has to return to New Zealand, he would be depressed because he would be separated from his wife and children. The Tribunal is prepared to accept the applicant’s evidence that even though his wife and children may follow him to New Zealand, it may take some time and there may be a period of separation. The Tribunal also acknowledges that the applicant made the decision in the past to leave his partner and children to be in another relationship and on his own evidence, he only saw his children rarely while he was in that relationship. That is, the applicant had voluntarily chosen to be separated from his wife and, to an extent, his children although the Tribunal acknowledges that the applicant’s perceptions may now be different.

28. In response to the NOICC the applicant provided a statement from his partner who confirms that the couple have reconciled. She refers to the applicant being a better person and the causes for his past behaviour. She states that the applicant provider her and their children with financial support and pays for the children’s schooling. The same evidence was given to the Tribunal by Ms Kake and the Tribunal accepts that she genuinely believes that evidence.

29. The Tribunal accepts that the applicant has extensive family and employment ties in Australia and that his preference is to be with his family in this country. The Tribunal accepts that considerable hardship could be caused to the applicant and his family if the visa is cancelled.

    Circumstances in which ground of cancellation arose

30. The circumstances in which the ground for cancellation arises are such that the Tribunal has formed the view that the applicant’s presence in Australia may be a risk to the safety of others.

31. In his response to the NOICC the applicant states that he had been under stress due to the toxic relationship with his former partner who had in the past assaulted him and destroyed his belongings but he had not reported the matter to the police. The applicant’s mother provided a statement in which she refers to the applicant being a decent and hardworking person who is truly remorseful for his conduct. It is stated that returning to New Zealand will break the applicant’s and his family’s spirits and may affect his mental health as most of his family are in Australia. The applicant indicated that he has reconciled with his former partner and wants to be with his children.

32. The applicant told the Tribunal that his previous relationship was ‘toxic’ and his former partner was not the right person for him. The applicant states that he had been a victim of family violence but had never contacted the police. Even if the applicant believes that to be the case, the Tribunal does not consider such circumstances justify family violence and other conduct leading to the convictions. The applicant states that he is now a different person, has his children around him and he wants to be a better father and husband. The Tribunal notes that the applicant has convictions and a family violence order in relation to his present partner, as well as his second partner. The circumstances of the offending conduct are set out in the primary decision record.

    Past and present behaviour of the visa holder towards the department

33. Nothing adverse is known about the applicant’s behaviour towards the Department.

    Whether there would be consequential cancellations under s.140

34. There are no consequential cancellations under s. 140.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

35. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention although there are limited types of visas he can apply for onshore. The applicant may be subject to an exclusion period in relation to some visa application that he may wish to make offshore.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

36. There is no evidence, and the applicant does not claim, that Australia’s protection obligations are engaged in this case. The Tribunal does not consider that non-refoulement obligations arise.

1. The applicant’s mother, wife and five children reside in Australia. His father, several siblings and two children (including a step-child) live in New Zealand. The principles of family unity may require the applicant’s presence in Australia although the Tribunal acknowledges the applicant has significant family links in New Zealand.

2. The applicant has five children in Australia and two in New Zealand. The applicant told the Tribunal that he now lives with his children and they are used to having him around all the time. The applicant states that he does everything for the children, takes them to school, cooks for them and does the household chores. The applicant explains that when he broke up with his current partner, he saw the children whenever he could, but his second partner did not approve of him seeing the children, so he only saw the children maybe once a month. The applicant states that his children found it difficult during that period. It is of some concern to the Tribunal that  the applicant had in the past voluntarily given up his regular contact with the children. The Tribunal accepts that in general, it is in the best interests of the children to be with their parents. However, the Tribunal also places weight on the nature of the convictions and the applicant’s past conduct. The information cited above indicates that the applicant had been issued with the Family Violence final intervention order in relation to his present partner (the mother of his five children) and in 2016 he been convicted of the breach of that order and assault. The Tribunal is of the view that it may not be in the best interests of the children to be in a relationship where the children observe violence or threats of violence against their mother. The applicant states that he is no longer a violent person and the children look up to him but for the reasons stated above, the Tribunal has formed the view that the risk of reoffending remains. The Tribunal is of the view that  it would not be in the best interests of the children to witness any violence perpetrated by their father against their mother or to be in a relationship where there is a risk of such violence occurring.

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

3. The visa in question is not a permanent visa, although in some circumstances, it allows long term stay in Australia. The Tribunal accepts that the applicant has extensive family and business ties in Australia.

   Any other relevant matters

4. The applicant presented to his submission to the delegate a statement from his employer who states that the applicant is well regarded by his colleagues and an asset to the company. The Tribunal accepts that the applicant is well regarded by his employer although the Tribunal is mindful of the applicant’s evidence that he has recently opened his own business. There is also a statement from the applicant’s case manager at the Department of Justice who indicates that  the applicant is complying with the community corrections order and the Tribunal accepts that evidence.

5. The applicant told the Tribunal that Australia is his home and it would be hard for him to live in New Zealand. The applicant refers to the culture of harm and gangs in New Zealand and states that it would be better for him and his family to live in Australia. The applicant states that his family are settled in Australia and children are settled in school and he has his personal loan and plans to run his own business. As noted above, the Tribunal accepts that the applicant is well settled in Australia and has extensive ties in Australia and that it would cause considerable hardship for him and his family to relocate to New Zealand. The Tribunal is also mindful that the applicant has extensive family in New Zealand, including his father, siblings and extended family.

6. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant’s presence in Australia may be a risk to the safety of others and that there are grounds for cancelling his visa. The Tribunal acknowledges that the applicant has been living in Australia for many years and is fulfilling the purpose of his travel and stay in Australia. The Tribunal accepts that there may be compelling reasons for the applicant to remain in Australia, as his partner and children live here. The Tribunal accepts that the applicant has extensive family and business ties in Australia and that the cancellation of the visa would cause significant hardship to the applicant and his family. These are reasons why the visa should not be cancelled.

7. However, the Tribunal places greater weight on the circumstances in which the ground for cancellation arises. The applicant had been convicted of multiple offences involving violence or threat of violence towards his partners. He has been the subject of Family Violence Intervention Orders in relation to each of his two partners and had breached such orders. The Tribunal finds that such offending is serious and the Tribunal is not satisfied the applicant had rehabilitated. The Tribunal has formed the view that the best interests of the children would not be adversely affected if the visa is cancelled. The Tribunal is also mindful of the applicant’s evidence that if the visa is cancelled, his partner and children may relocate with him to New Zealand, even if it takes time, and Ms Kake’s evidence that she may sponsor the applicant for a visa in the future. Should the applicant evidence his rehabilitation and that there is no risk of reoffending, there is a possibility that the applicant will be granted a visa in the future.

8. Overall, the Tribunal gives greater weight on the circumstances in which the ground for cancellation arose. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

   DECISION

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

   Kira Raif
   Senior Member