Kane (Migration)

[2018] AATA 1688

Kane (Migration) [2018] AATA 1688 (2 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Troy Eden Kane

CASE NUMBER:  1811350

HOME AFFAIRS REFERENCE(S):           BCC2018/172279

MEMBER:Ann Duffield

DATE:2 May 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 050 (Bridging (General)) visa.

Statement made on 02 May 2018 at 2:08pm

CATCHWORDS
Migration – Cancellation – Bridging E (Class WE) visa – Subclass 050 ( Bridging (General)) – Extensive criminal record – Compliance of bail conditions – Remorse for offence – Family support to applicant – Child’s best interest – Financial support to family – Decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 499
Migration Regulations 1994, r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 April 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 050 (Bridging (General)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(10(g) on the basis of the applicant’s extensive criminal record and extant charges for grievous bodily harm. 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 2 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s parents and his sister.

4. The applicant was represented in relation to the review by his registered migration agent.

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

   BACKGROUND

6. The applicant provided the Tribunal with a copy of the delegate’s decision along with their application for review.

7. The applicant is a citizen of New Zealand born on 19 January 1987 (31 years old). He first arrived in Australia in November 2005 as an 18 year old. All his family, including 8 siblings reside in Australia.

8. The applicant has an Australian born son that he has not seen since December 2016 but provides financial support.

9. The applicant was granted a TY444 on 11 November 2014. On 1 February 2018 a Notice of Intention to Consider Cancellation of that visa was sent to the applicant. He responded to that notice on 13, 27, 28 February 2018 as well as on the 5 and 27 March 2018.

10. A decision was made to cancel the applicant’s TY444 visa on 5 April 2018.  On 11 April 2018 the applicant applied for a review of that decision to the AAT.

11. The applicant was taken into immigration detention on 12 April 2018. He applied for the bridging visa in relation to the application for a review of his TY444 cancellation. On 19 April 2018 the applicant was granted a bridging visa which was cancelled the same day. It is that cancellation which is subject to this review.

12. On 24 April 2018 the Tribunal served a summons on the Commissioner of the Queensland Police seeking the applicant’s person history and criminal record. This was provided to the Tribunal on 26 April 2018.

13. The Tribunal sent this material to the applicant advising him that the contents would be discussed at the scheduled hearing and he would be given an opportunity to respond. The Tribunal informed the applicant that depending upon his response, these matters would form the reason, or part of the reason for affirming the decision under review.

14. The applicant’s offending began in around July 2007 with drunk driving and other driving offences and progressed in 2009 to possess and/or use dangerous drugs and contravening direction or requirement and public nuisance. These offences continued and in 2011 he was charged with driving an unregistered vehicle and other vehicle offences including drunk driving and speeding. He was again charged with driving under the influence of alcohol in 2013; in 2014 he was charged with public nuisance and also stealing, evasion of fare payment, driving offences, failure to attend court, breach of bail undertaking and finally in 2017 for grievous bodily harm, drug offences and twice for failing to appear in accordance with bail conditions.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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)(g). 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)(g) - prescribed ground

16. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(p)(ii) is relevant.

17. The delegate cancelled the applicant’s visa on the basis of  the following charges based on an incident which occurred on 27 January 2017, which have yet to be heard by the court, and his previous lengthy criminal history:

    a.Assault occasioning bodily harm whilst armed/in company in a public place whilst adversely affected by an intoxicating substance.

18. The applicant denies the charges and claims that he was an accessory only.

19. Nevertheless the applicant does not deny that the charges have been laid.

20. The applicant was advised that he was not obliged to answer the Tribunal’s questions if he felt they might incriminate him.  He declined to discuss the charges with the Tribunal except to deny them. The Tribunal informed him that it was still able to affirm the cancellation on the basis of charges alone. The applicant said he understood.

21. The Tribunal considers the charges to be serious and they come after a long period of minor and not-so-minor driving and drug offences, as well as failure to appear at court. For these reasons the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) 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

22. In considering whether a Bridging E visa should be cancelled on the basis of the prescribed grounds in r.2.43(1)(p) or (q) the Tribunal must comply with Direction No.63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q), made under s.499 of the Act. This Direction requires the Tribunal to take into account specified primary and secondary considerations, where relevant, and specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.

23. The primary considerations are:

    ·the Government’s view that the prescribed grounds for cancellation at r.2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation; and

    ·the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.

24. The secondary considerations are:

    ·the impact of a decision to cancel the visa on the family unit;

    ·the degree of hardship that may be experienced by the visa holder if the visa is cancelled;

    ·the circumstances in which the ground for cancellation arose;

    ·the possible consequences of cancellation; and

    ·any other matter considered relevant.

25. The Direction states that primary considerations should generally be given greater weight than any secondary considerations, one primary consideration may outweigh the other primary consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources. The Tribunal has also 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

26. The applicant arrived in Australia in 2005 to follow the rest of the family who departed New Zealand because of gang related violence in their community. He resided with his parents and siblings until around 2007 when he moved in with friends. He subsequently began a de-facto relationship with his ex-partner and they have a son together, born in 2012.

27. The applicant told the Tribunal that he has not seen his son since December 2016 because his ex-partner has been difficult and won’t allow him to see their son. Asked why this was the case the applicant told the Tribunal that she was still angry with him but did not specify why this was the case. He said that he and his ex-partner had recently begun speaking to each other again and she had agreed to some mediation before he resorted to filing a family court application to seek visitation rights for his son. He currently supports his son financially through the CSA. The applicant told the Tribunal that he wants to be released from detention so that he can continue to work and provide financially for his son. He said that his employer has given him personal leave for the moment and he has a job to go back to if he is released.

28. The Tribunal accepts that the applicant has compelling reasons to remain in Australia.

    the extent of compliance with visa conditions

29. There are no conditions on a TY444 visa and the applicant has held no previous visas of any class.

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

30. The applicant’s father and mother gave compelling evidence about the extent to which the applicant had suffered since the breakdown of his relationship and the denial of access to his son. They told the Tribunal that they have no family with whom they are in contact in New Zealand

31. The witnesses also told the tribunal that the applicant has a close and supportive relationship with his sister and her family, including with her four children. The applicant’s sister told the Tribunal that the applicant not only helps around the house but looks after the children and provides them with financial assistance. She said that he started going to church with them again every Sunday about two months ago. She said that her youngest sons, in particular had formed a very close bond with the applicant.

32. The Tribunal accepts the oral and documentary evidence (including statements from family members and friends) that the extended family as well as the applicant would suffer a significant amount of emotional and financial hardship if the applicant’s visa is cancelled. There was an extended discussion about the positive influence the applicant has had on younger family members and his siblings.

33. The applicant’s father and mother both told the Tribunal that they would intervene strongly to ensure that he attended alcohol and drug rehabilitation courses and counselling. The Tribunal suggested to all the witnesses that they each had the opportunity of the past 12 months and more to ensure that the applicant made more of an effort to deal with his problems, including the consumption of alcohol and psychological issues. They said that they had not done so before because he was, after all, a grown man capable of making his own decisions.

34. The Tribunal was persuaded by the evidence of the applicant’s supporters, as well as his own statements, that he is committed to ensuring that he deal with his alcohol dependence issues and attend and obtain as much help as possible if he is released back into the community. The Tribunal put to him that he still had to face the Tribunal in relation to his TY444 cancellation and that any breach of any conditions that the department may see fit to put on his visa should they give him one would certainly be viewed negatively. The applicant said that the forthcoming hearing of his TY444 application would strongly motivate him to abide by any conditions imposed on any visa he was given.

35. The Tribunal finds that this evidence weighs against the cancellation of the visa.

    circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

36. The applicant claims that he is innocent of the charges that led to his visa being cancelled and that he was a bystander to the incident. Nevertheless the charge is serious.

37. Equally, the Tribunal is not satisfied that there were any extenuating circumstances beyond the applicant’s control that led to the grounds for visa cancellation existing.

38. The Tribunal does recognise, in this context, that the applicant has been granted bail and that he has complied with all his bail conditions over a period of more than 12 months. The Tribunal does give this aspect of the evidence some considerable weight.

    past and present behaviour of the visa holder towards the Department

39. There is no evidence that the applicant has not been compliant in his behaviour with the department.

    whether there would be consequential cancellations under s.140

40. This is not applicable to the current case.

    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

41. The Tribunal notes that the effect of a cancellation would prevent the applicant from applying for a further visa without the intervention of the Minister. The Tribunal is also mindful that he would remain in detention and have difficulties obtaining a new Australian visa in the future.

    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

42. There is no evidence before the Tribunal that Australia’s non-refoulement obligations would be breached as a result of the visa cancellation.

43. The Tribunal has carefully considered the application to this matter of the United Nations Convention on the Rights of the Child and, as it is relevant to the family unit, the International Covenant on Civil and Political Rights (ICCPR).

44. The Tribunal acknowledges that the best interests of the child must be treated as a primary consideration by administrative decision makers. The Tribunal has done so in this matter and elevates the weight afforded to the evidence which suggests hardship to the applicant’s son as well as his younger siblings and in particular, his young nephews, and which weighs against the cancellation of the visa. The Tribunal also notes that this primary consideration may be balanced against other considerations.

45. The Tribunal does not consider that there are any other relevant matters to consider.

46. The Tribunal accepts the applicant’s evidence that he will suffer emotionally, mentally and financially if he remains in detention and that the rights of the children affected by this matter are better served if the applicant is released from detention.

47. The Tribunal notes that the department can impose a number of conditions on the visa and that the applicant himself is cognisant that any breach of any undertakings would negatively impact upon his application to review the cancellation of his substantive visa. The Tribunal also accepts that the applicant and his family are strongly motivated to ensure that the applicant abides by both any visa conditions that may be imposed, but his current bail conditions.

48. The Tribunal has carefully reflected upon the factors in favour of and against the cancellation of the applicant’s visa. The Tribunal has been especially cognisant of the applicant’s obvious remorse for his offending and the fact that he abided by his bail conditions over a long period of time. The Tribunal also, of course, has at the front of its mind the rights of the applicant’s child. On balance, the Tribunal finds that the factors in favour of cancelling the applicant’s visa do not outweigh those to the contrary.

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

    DECISION

50. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

    Ann Duffield
    Senior Member