Kingi (Migration)

[2019] AATA 2335

Kingi (Migration) [2019] AATA 2335 (5 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zelman Kingi

CASE NUMBER:  1903461

HOME AFFAIRS REFERENCE(S):           BCC2018/1314106

MEMBER:Kira Raif

DATE:5 June 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 444 (Special Category) visa.

Statement made on 05 June 2019 at 11:46am

CATCHWORDS

MIGRATION – cancellation – Special Category (Temporary) (Class TY) – Subclass 444 (Special Category) – visa cancelled – applicant was convicted – risk to health and safety or good order – risk the applicant will engage in criminal or anti-social behaviour – compelling reasons – significant hardship – best interest of child – applicant’s presence – decision under review set aside

LEGISLATION

Crimes Act 1900(NSW), ss 33(10) E, 59(1), 86(3), 111(2), 113
Crimes (Domestic and Personal Violence) Act 2007(NSW), s 13(1)
Migration Act 1958 (Cth), ss 116, 140
Migration Regulations 1994 (Cth)

CASES

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 7 February 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 1994. He was last granted the Special Category visa on 29 October 2013. On 20 November 2018 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) under s.116(1)(e) of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 7 February 2019. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 3 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother and his criminal lawyer. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   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?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was last granted the Class TY Special Category visa on 29 October 2013. The Department received information from the NSW police about the applicant allegedly being involved in the following conduct.

   a.On 29 March 2018 the applicant allegedly entered a house in Lalor Park without permission of the occupants and intimidated and assaulted them with an extended baton. The applicant was charged on 5 April 2018 with the offence of specially aggravated break and enter with intent, armed with a dangerous weapon, under s.113(3) of the Crimes Act 1900 (NSW).

   b.On 29 March 2018 the applicant allegedly detained and punched a man to the right side of the jaw, rendering him unconscious, in the Lalor Park Hotel. The victim underwent scans which revealed a small bleed to the frontal lobe of the brain. As a result, the applicant was charged on 5 April 2018 with the offence of take/detain in company with intent to get advantage occasioning actual bodily harm, under s.86(3) of the Crimes Act 1900 (NSW).

   c.On 24 February 2016 the applicant allegedly entered a house in Seven Hills without permission of the occupants, with a shirt or shirts wrapped around his face to hide his identity. It is alleged that he attacked the occupants of the house with a knife, allegedly wounding two of them.

   d.The applicant had been charged with the following offences

   i.Assault occasioning actual bodily harm – s.59(1) Crimes Act 1900 (NSW)

   ii.Stalk/intimidate with intent to cause fear of physical harm, etc, (personal) – s.13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW)

   iii.Aggravated entering dwelling with intent to inflict actual bodily harm – s.111(2) Crimes Act 1900 (NSW)

   e.The Department also received information from the Australian Criminal Intelligence Commission that the applicant was convicted of the following offences in NSW:

31/10/17	Armed with intent to commit indictable offence	Intensive correction order: 7  months
27/05/16	Armed with intent to commit indictable offence	Imprisonment: 7 months, suspended on entering s. 12 bond for 7 months
10/08/12	Assault occasioning actual bodily harm	Probation s 33(10)E: 18 months community service order.

1. In his response to the NOICC the applicant states that the charges are being defended and it is not appropriate to make a finding about the applicant being a risk to the community before the matter is resolved. The Tribunal does not accept that argument. Firstly, it is not in dispute that the applicant had previously been convicted of three violent offences between 2012 and 2017. Those offences on their own could potentially lead to a finding that the applicant’s presence in Australia is or may be a risk to others, irrespective of the outcome of the most recent charges. Secondly, it is well established that a finding of guilt is not required to establish a ground for cancellation under s.116(1)(e). Thus, in Gong v MIBP [2016] FCCA 561, Smith J considered that as s.116(1)(e) is engaged where the Minister is satisfied that a visa holder’s presence ‘may be a risk’, it can arise on the possibility that some event occurred in the past. In this case, that possibility was supported by the laying of a number of charges against the visa holder. The Court held at [45] that there is no requirement that there be a determination of the guilt of a visa holder.

2. The applicant also argues in his written submission to the delegate that the two earlier offences dated October 2017 and May 2016 relate to the same matter. The applicant states that the matter was at the lower range of seriousness and committed in circumstances of significant mitigation and that incident should be given little weight. With respect to assault occasioning actual bodily harm, the applicant states that the incident occurred when he was a child in highly exceptional circumstances. The community based sentence indicates that the offence was at the lower end of seriousness.

3. The Tribunal has had regard to the submission from Ms Munro of Blaxland Law, the applicant’s criminal representative, who outlines the circumstances of the offences and the applicant’s conduct generally. Ms Munro also presented oral evidence to the Tribunal concerning the applicant’s criminal proceedings. The Tribunal has also had regard to the court report prepared by Mr Awit.

4. Despite the applicant’s claims that these offences are insignificant, the Tribunal finds that the offences for which the applicant had been convicted had been violent offences that involved harm to other individuals. The applicant’s evidence to the Tribunal is that in the 2016 offence, he attended another person’s house and although the applicant claims that he entered the house at another person’s invitation and they were having a conversation in the house, the applicant concedes that his conduct may have been seen as being intimidating or may have caused fear.

5. The applicant told the Tribunal that he pleaded guilty to the lesser offences (aggravated break and enter) arising from the March 2018 incident and was sentenced to 16 months, with a non-parole period of 12 months. He also pleaded guilty to the offence of assault in company but it was agreed that he was not the one who assaulted or hit another person.

6. It is of some concern to the Tribunal that the offences occurred over a lengthy period from 2012 and the offences are multiple. The applicant’s evidence is that the offences are at the lower end of the scale and did not involve violence. However, the Tribunal is of the view that the custodial sentence which the applicant was given, contradicts his claim that the offences were at the lower end of the scale. The applicant’s evidence to the Tribunal is that the 2018 offences resulted in the sentence of 16 months imprisonment. That is not an insignificant sentence and its severity reflects, in the Tribunal’s view, the seriousness of the offending.

7. The applicant claims there was no violence in any of his offences, that the elements which referred to violence have been ‘thrown out’ and the agreed statements of facts do not show that he was violent towards others. Even if that is the case, the Tribunal does not consider that harm to others can only be perpetrated through violence. Intimidation or threat of violence can also cause significant harm. The applicant told the Tribunal that the most recent offence involved damage to property. Such conduct could also instil fear and cause harm to others.

8. The applicant claims that he engaged in such conduct in order to protect his sister and he has now learned his lesson. The applicant states that he now realises that his sister needs to make her own decisions and he would not act in the same way in the future. The applicant states that he cannot put his family, and his mother, in the same situation in the future and that being in detention for the first time has made him more mature and more able to control his emotions. The Tribunal acknowledges that the applicant may have learned from his detention and has a better understanding of his conduct. The Tribunal also notes, however, that on his own evidence, the applicant has not had any opportunity to participate in any rehabilitation programs or any other programs that could help him manage his behaviour in the future. The applicant has indicated his intention to engage with a psychologist once he is released from detention, and there is evidence of that before the Tribunal, but that is yet to occur.

9. The Tribunal acknowledges that the applicant has shown remorse for his past conduct and has shown some insight into his wrongdoing. However, the Tribunal is concerned by his repeated engagement in criminal activities and lack of any involvement in rehabilitation programs. Having considered all the circumstances, the Tribunal has formed the view that there remains some risk that the applicant will engage in criminal and anti-social conduct again, whether such conduct involves violence or intimidation towards others. Such a risk continues to exist in the Tribunal’s view, also because the applicant’s resolve not to engage in criminal conduct has not yet been tested in the community as the applicant has spent the past 12 months in a high security prison.

10. The Tribunal finds that the applicant’s presence in Australia may be a risk to the safety of the Australian community or a segment of the community or to individuals. The Tribunal is satisfied that the ground for cancellation in s.116(1)(e) exists.

11. 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

12. There are no matters specified in the Act or the Migration Regulations 1994 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

13. The purpose of the visa is to enable the applicant to live in Australia. The applicant’s evidence is that he has been living in Australia since he was six years of age and his entire immediate family lives in Australia. He considers Australia to be his home. The applicant told the Tribunal that he has travelled to New Zealand three times in 17 years and although he has some extended family in New Zealand, they do not speak much and do not have much contact. His life is in Australia. The applicant states that if his visa is cancelled, it would have a dramatic effect not only on him but also on his immediate family.

14. The Tribunal is satisfied that the applicant is satisfying the purpose of his stay in Australia by remaining in Australia with his family. The Tribunal considers that the presence of his family in Australia, and the applicant’s obligations towards his family which are discussed below, may constitute a compelling need for the applicant to remain in Australia.

    The extent of compliance with visa conditions

15. There is no evidence that the applicant failed to comply with any visa conditions.

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

16. The applicant states in his submission to the delegate that his entire immediate family live in Australia. The applicant presented in response to the NOICC a statutory declaration in which he states that he has been living in Australia for over 16 years and was six years old when his parents and siblings migrated to Australia. He has only a vague memory of being a child in New Zealand. The applicant states that he is not a threat or a risk to the community and has never been in possession of weapons, or used any weapons to hurt anyone. He pleaded guilty to an assault charge as a child but he has not been convicted of violent offences as an adult.

17. In his submission to the delegate the applicant described his family circumstances. The family migrated to Australia in May 2002 and has lived in Sydney since. The applicant described that in February 2003 his elder brother was involved in an accident and suffered significant injuries that affect him to this day. He needs help with basic things and the applicant states that he spends most of his time looking after his brother, who has a brain injury and needs help. The applicant describes an incident in December 2004 affecting his sister. He states that as result, his sister started using alcohol and drugs and lost the custody of her child.

18. The applicant states that he is very protective of his siblings and wants to help relieve his mother’s stress. His mother is not in good health, his nephew is legally blind and both require a high level of care. The applicant states that he needs to be at home to help care for them. His family has suffered during his incarceration and are struggling to provide care that he normally provides. His father had to take more time off work to help his mother, which has caused financial stress.

19. The applicant also provided a declaration from his mother supporting the applicant’s claims.

20. In oral evidence he said that he would not know how he would cope if his mother had to care for his brother and nephew and he would know that he had caused it. He can see the toll it has taken on his family and he knows he cannot do that again. He would not see anything positive in his life and he would feel responsible for his family’s breakdown if he was deported to New Zealand.

21. The applicant told the Tribunal that prior to his detention, he was providing daily care for his brother, who needs 24 hour care due to his disability. He would help with feeding, dressing and medication for his brother. The applicant states that both he and his mother take care of his brother and also his nephew, who is legally blind and has other health and psychological issues. While he has been in detention, his mother has been taking care of them and his father helps, but he also has to work.

22. The applicant’s mother gave oral evidence about the hardship that the family has suffered as a result of the applicant’s incarceration as he used to contribute significantly to the care arrangements. Ms Kingi (the applicant’s mother) states that her husband had to give up a full-time job to care for their son and nephew and that has caused financial hardship. It is difficult to maintain a household and provide the care without the applicant’s help.

23. The Tribunal accepts the applicant’s evidence, and the other written and oral evidence before the Tribunal, concerning the care needs that exist in the family and the role the applicant played prior to his incarceration in meeting those needs. In particular, the Tribunal accepts the evidence that the applicant was the primary caregiver for his brother and that together with his mother, the applicant provided daily care to his brother and nephew, both of whom need a high degree of care. The Tribunal accepts that the applicant’s detention caused significant hardship for the family because the applicant is no longer able to assist with such care arrangements, and such hardship would be exacerbated if the applicant was required to leave the country as a result of his visa being cancelled. The Tribunal accepts that the cancellation of the visa would cause significant hardship to the applicant and his family.

    Circumstances in which ground of cancellation arose

24. The ground of cancellation arises because the Tribunal has formed the view that the applicant’s presence in Australia may be a risk to others.

25. The applicant outlined the circumstances of the offending in his response to the NOICC and his evidence to the Tribunal. With respect to the most recent charges, the applicant stated in his submission to the delegate that he pleaded guilty and could not provide more comments. In relation to the February 2016 incident, the applicant stated that he only became aware of the incident after 19 months and he denied the allegations.

26. In relation to the May 2016 incident, the applicant confirmed that he was sentenced for an offence of being armed with intent and he was dealt for the same offence in October 2017 for breach of proceedings. He was sentenced to a seven month suspended sentence which was later breached and he was given a seven month intensive correction order.

27. In his evidence to the Tribunal the applicant confirmed that, in relation to the most recent offence, he pleaded guilty to a lesser charge of aggravated break and enter (rather than assault with a weapon). The applicant states that he had gone to another person’s house to get his sister. He was sentenced to 16 months with a non-parole period of 12 months. The non-parole period had expired and he intends to apply for bail. The applicant states that he also pleaded guilty to the second offence of assault in company but it was agreed that he was not the one who threw the punch. The applicant states that he had never used weapons and the more serious aspects of the offences have been ‘thrown out’.

1. The applicant states that the two earlier convictions related to the same offence. After he was sentenced, he was told by the police to move along but he could not, so it was said that he failed to follow police instructions and he was re-sentenced for the earlier offence. In relation to the 2012 offence, the applicant stated that he was in court supporting a friend. As they were leaving the court, there were many cameras and reporters present. He was trying to cover his friend and they were surrounded by cameras and he was telling them to move but they did not. He did not know what to do or how to react. He was trying to support his friend, charged at the media people and was convicted of assault. 

2. The applicant states that there was no violence in his offending. The 2016 incident happened when he was in a backyard yelling to people in the house. He saw a wooden stick in the backyard when he was waiting for someone to open the door and when he saw the man coming out, he dropped the stick straight away and he was later invited into the house. The applicant said there was no weapon and no intent to harm. He was invited inside the house and was having a chat with the man when the police arrived.

3. In relation to the 2018 offences, the applicant stated that his sister came out of rehab and did well for a few weeks but then she disappeared. They were looking after his sister’s young son. Somebody told him where his sister was, saying she was with others using drugs. He went to the house and was invited into the house. He was very upset at his sister and took out his anger by smashing the TV before he left the house. The applicant said that he was only trying to bring his sister home, he had no intention to harm or hurt anyone; it was a ‘heat of the moment’ thing.

4. The applicant states that he is not a violent person and has never gone looking for violence. He was immature before and did not know how to deal with his emotions. He did not look for trouble but has made stupid mistakes. He believes he has learned and can manage his emotions better. He has never been involved in any violence while in prison.

5. The applicant states that over the last few years, the offences he had been convicted of relate to him looking after his sister. He has not been in any other trouble, he was simply looking after his sister. The applicant said that he felt that he needed to look after his sister and was trying to protect her, but he has now learned that his sister needs to make her own mistakes. He has now learned that he needs to look after the people he can look after, like his brother and nephew, and not his sister who has her own life. Now he realises that he cannot risk everything and needs to help people he can help. The applicant states that he was previously driven by impulse but he has now matured and has learned to think.

6. The applicant states that he has been in prison for about 14 months, which is his first time in prison. He states that the Long Bay jail does not have any rehabilitation programs and he has not been able to participate in any. He states that if he is released from jail on bail, he has made arrangements with a psychologist to participate in a number of sessions and he provided to the Tribunal the Treatment Plan which outlines the programs the applicant would participate in. He also intends to undertake a course at TAFE. He had enrolled in the studies prior to his detention but was not able to start the course.

7. The applicant states that the only risk that would exist is because he thought before that he could keep his sister out of trouble. He does not think that anymore, he knows it is not an option. He has seen what impact his imprisonment has had on his family and they are ‘falling apart’. He knows he has to be there for his family and he will not relapse. He will not commit any further offences. Jail has been a big wake up call which he needed to realise what he needs to do.

8. The applicant notes that the delegate repeatedly referred to him assaulting people with weapons, which is not true and the agreed statements of facts confirm that he has not used weapons. The Tribunal is mindful that even if no ‘weapons’ were used, assault constitutes a serious offence and the applicant also admits to damaging property. He also concedes that entering another person’s house may have resulted in them being intimidated. The Tribunal is mindful that the applicant has been sentenced to a lengthy term of imprisonment in relation to the most recent offences. That reflects, in the Tribunal’s view, the seriousness of the offences, whether or not weapons were used.

   Past and present behaviour of the visa holder towards the Department

9. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

   Whether there would be consequential cancellations under s.140

10. There are no persons who would be affected by mandatory cancellation 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, 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

11. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be an unlawful non-citizen and subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention. The Tribunal accepts that in relation to most visa categories, the applicant may be subject to an exclusion period.

    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

12. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations arise in this case.

13. The applicant claims that he has a close relationship with his nephew and that the decision to cancel his visa would have a devastating effect on his nephew. There is before the Tribunal a Health Summary Sheet relating to Master Kingi and the Tribunal accepts the medical evidence in that report.

14. The applicant’s evidence to the Tribunal is that he is a carer for his nephew, who is eight years of age. The applicant states that in their culture, he has the responsibility to care for his family and they cannot rely on community support. His nephew has had many problems, his mother left him and his father has recently passed away and he needs as much care as he can obtain. The applicant states that his presence would have a great impact on the life of this child as they are very close. The applicant states that he cannot abandon the child, as his nephew had already been abandoned by others and it would affect the child.

15. The Tribunal accepts the medical evidence and other materials and accepts that the applicant has a close relationship with his nephew and acts as a father figure for the boy. The Tribunal also accepts that the applicant shares care arrangements with his mother for his nephew, who has special needs. The Tribunal accepts the evidence of the applicant and his mother that it is difficult for her to care for this child, as well as the applicant’s brother who has a severe disability, without the applicant’s help and that such care has been compromised while the applicant has been incarcerated. The Tribunal has formed the view that it is in the best interests of the applicant’s nephew that his close relationship with the applicant is maintained and that the applicant remains available to provide care and support to this child.

    Any other relevant matters

16. The Tribunal has considered the character reference from the family doctor, Dr Varatharajan, who refers to the applicant being a person of will, determination, courage and conviction, loyalty, imagination and tenderness. Dr Varatharajan expressed his support for giving the applicant another chance to remain in Australia. The applicant subsequently provided to the Tribunal a number of other character references.

17. 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 Australian community or segments of the community because the applicant had engaged in persistent criminal behaviour over the years. The Tribunal has found the offending behaviour to be serious, as reflected by the custodial sentence the applicant has received for his most recent offences. The Tribunal does not accept the applicant’s evidence that he is not a threat because he has not used weapons, because the applicant’s conduct would have been intimidating to others. The Tribunal is of the view that the nature of the offences and of the applicant’s conduct provide strong reasons why the visa should be cancelled.

18. However, there are other important considerations. The Tribunal acknowledges the applicant’s expression of remorse and that he appears to be cognisant of his wrongdoing. The applicant has expressed a willingness to change and while there has been no opportunity for the applicant to conduct himself in the general community since the most recent offences, the applicant appears to have a greater insight into his actions and the effect that his conduct has had on his family.

19. The Tribunal accepts that the applicant has had significant carer responsibilities in relation to his brother and nephew, both of whom have special needs and require a substantial degree of care. The Tribunal accepts that significant hardship would be caused to the family if the applicant was required to leave the country, as a result of his visa being cancelled, as such care would no longer be available. The Tribunal considers it important that the applicant appears to be cognisant of such hardship and remorseful about it, which may influence his future conduct. The Tribunal has also found that the applicant has been a father figure for his nephew and played a meaningful role in the child’s upbringing. The Tribunal has formed the view that the best interests of the child require the applicant’s presence in Australia. These circumstances provide reasons why the visa should not be cancelled.

20. There is no evidence of the applicant breaching any visa conditions or of being uncooperative with the Department.

21. In the particular circumstances of this case, the Tribunal finds that there are compelling reasons why the visa should not be cancelled and such reasons outweigh other considerations. The Tribunal is mindful that should the applicant commit any further offences, further consideration may be given to cancelling his visa in the future. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Kira Raif
    Senior Member