Laki (Migration)

Laki (Migration) [2019] AATA 1718 (6 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Laki Laki
CASE NUMBER:  1905080
HOME AFFAIRS REFERENCE(S):           BCC2018/5719571
MEMBER:Michael Ison
DATE:6 May 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 06 May 2019 at 5:49pm

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – ground for cancellation – risk to safety of Australian community or individual – charged with eight criminal offences – pleaded guilty – one off incident or outlying behaviour – seriousness of charges – risk of reoffending – granting of Bridging E visa – granting of bail – consideration of discretion – strong family and employment ties to Australia – daughter lives in New Zealand – employment prospects in New Zealand – mental health condition – financial support to extended family – acts of domestic violence – consumption of alcohol – genuine remorse – lack of full insight into the cause of offending – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
CASES
Gong v Minister for Immigration and Border Protection [2016] FCCA 561
Howard v Minister for Immigration [2017] FCCA 2916
Newall v MIMA [1999] FCA 1624

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 4 March 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Class TY Subclass 444 (Special Category) visa under s.116 of the Migration Act 1958 (the Act).
The applicant is a 35 year old New Zealand citizen by descent who was born in Western Samoa and adopted by Australian citizen parents in 1995.
The delegate cancelled the applicant’s visa under s.116(1)(e)(i) on the basis that the applicant had been charged with eight criminal offences, including four counts of assaulting individuals, leading the delegate to find the applicant is or may be a risk to the health, safety or good order of the Australian community or a segment of the Australian community. In considering the discretionary considerations the delegate considered the seriousness of the applicant’s alleged offending was very concerning including allegedly assaulting four different people and causing injuries to a number of them. The delegate considered the circumstances were not beyond the applicant’s control. The delegate considered some factors weighed against the cancellation of the applicant’s visa, including his employment circumstances and the financial support the applicant provides for his young daughter and birth parents but overall found the balance of considerations supported cancellation of the applicant’s Subclass 444 visa.
The applicant applied to the Tribunal to review the decision of the delegate on 5 March 2019 and provided the Tribunal with a copy of the delegate’s decision cancelling his visa.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 4 April 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his lawyer who is also a registered migration agent.
The Tribunal received the following submissions prior to the hearing:
·     A 32-page submission sent to the Tribunal on 1 April 2019 which included a 2-page chronology and an index of documents relied upon;
·     A four page Outline of Submissions sent to the Tribunal on 3 April 2019; and
·     A three page email sent to the Tribunal just before the hearing attaching a copy of the applicant’s two page resume.
The Tribunal received the following submissions at the hearing:
·     A two page letter from Furstenberg Law, the applicant’s criminal law lawyers, dated 2 April 2019 that advised:
o   The applicant has pleaded guilty to a charge of aggravated burglary, four charges of common law assault and a charge of criminal damage;
o   Two other criminal charges were withdrawn;
o   The plea hearing will occur in the County Court of Victoria on 9 September 2019;
o   The applicant has consented to a final intervention order, without admissions, that is for 12 months to 25 March 2020; and
o   The applicant has been charged with an additional charge of breaching an interim intervention order to which he has pleaded guilty and which will be uplifted and consolidated with the indictable matters; and
·     A consolidated and bound chronology, index of documents and tabbed copy of the documents correlated to the index, which was of great assistance to the Tribunal.
After the hearing on Monday 8 April 2019 the Tribunal received a further 19 page submission from the applicant that included the following documents:
·     Three pages of written submissions dated 8 April 2019 from the applicant’s representative;
·     A copy of the 12 month Intervention Order dated 26 March 2019, entered into by consent, requiring the applicant, amongst other things, not to commit family violence against or contact or communicate with his former de facto partner;
·     A Preliminary Brief – Statement Made by Informant document from Victoria Police in relation to an alleged breach of an interim Intervention Order dated 26 November 2018;
·     A charge sheet with one charge of contravening an Intervention Order filed by Victoria Police on 13 January 2019;
·     A one page statement from Victoria Police that the applicant has no prior criminal offences in Victoria as at 1 February 2019;
·     An email dated 4 April 2019 from the applicant’s criminal lawyers allegedly reproducing the WhatsApp message the applicant sent his former de facto partner (and her parents) on 9 January 2019 in breach of the interim Intervention Order;
·     An updated index of documents relied upon by the applicant; and
·     An updated 21 item chronology of events relied upon by the applicant.
On Friday 12 April 2019 the Tribunal received from the applicant’s representative a copy of the Verdict and Judgment Record from Brisbane Magistrate’s Court confirming that on 4 July 2008 the applicant pleaded guilty to two charges of assaulting or obstructing a police officer and one charge of contravening a direction or requirement of police and was fined $500 without a conviction recorded.
During the hearing the Tribunal shared information that was potentially adverse to the applicant that the applicant had not provided to the Tribunal in accordance with the procedure set out in s.359AA of the Act. That information was contained in three documents:
·     The applicant’s criminal charge sheets filed on 26 November 2018;
·     An undated Victoria Police summary of the alleged circumstances of the applicant’s offending; and
·     A national criminal history check obtained by the Department on 19 February 2018.
The Tribunal particularised the potentially adverse information as follows:
·     The charge sheets allege on 25 November 2018 the applicant assaulted four people, destroyed property without permission, entered premises as a trespasser with intent to assault, intentionally caused injury to a person and recklessly caused injury to a person;
·     The Victoria Police summary of the circumstances of the applicant’s alleged offending states on 25 November 2018 that after a night out with the applicant’s then de facto partner and friends upon returning home the applicant was intoxicated and verbally and physically assaulted his partner including pushing her in the face, forced food into her mouth, threw food over her, grabbed her and threw her into the corner of a room and threw a pot plant at her head. The summary states the applicant subsequently punched the male friend he had been out with twice to the head then verbally abused a neighbor before forcing his way into the neighbour’s house where he punched the neighbour to the head, causing him to fall to the floor. The summary states the applicant continued to punch his neighbour as he was on the floor screaming for help. The summary states the housemates of the applicant’s neighbour got out of bed and the applicant left the premises but then punched a male housemate to the head at the front of the premises;
·     The national criminal history check discloses that on 4 July 2008 a guilty verdict was recorded against the applicant in the Brisbane Magistrates’ Court in relation to a charge of contravening a police direction or requirement and two charges of assaulting or obstructing police and the applicant was fined $500 without a conviction being recorded.
The Tribunal provided the applicant and his representative with copies of these documents.
The Tribunal explained to the applicant the information in these documents was relevant to his review before the Tribunal because it could lead the Tribunal to form the view that the applicant has been and remains capable of violence towards others and remains capable of acting in a violent or aggressive manner such that he 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. The applicant confirmed to the Tribunal that he understood the relevance of the information to his review.
The Tribunal explained to the applicant the consequence of the Tribunal relying on the potentially adverse information as being that it could lead the Tribunal to form the view that the ground for the cancellation of the applicant’s visa has been made out and could also cause the Tribunal to find that the circumstances of the applicant’s offending are so serious that in balancing all of the discretionary considerations the applicant’s circumstances weigh in favour of his visa remaining cancelled. The Tribunal informed the applicant that is important because it would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate to cancel the applicant’s visa. The applicant confirmed to the Tribunal that he understood the consequences of the Tribunal relying on the potentially adverse information.
The Tribunal invited the applicant to comment on or respond to the potentially adverse information offering the applicant additional time to consider the information before commenting on or responding to it. The applicant requested and was granted additional time to consider the potentially adverse information by the Tribunal. The applicant’s responses to the potentially adverse information are discussed below.
As part of the introduction to the hearing the Tribunal acknowledged that the applicant, despite his guilty plea, has a privilege against self-incrimination in relation to the unresolved criminal matters pending against him. The Tribunal explained that privilege meant if the applicant reasonably felt that any answers to the Tribunal’s questions may incriminate him in relation to the unresolved criminal charges, he could assert his privilege and decline to answer those questions from the Tribunal. The Tribunal noted that in such circumstances as the applicant would be merely asserting his legal rights, the Tribunal would not make adverse inferences or findings against the applicant because of his reliance upon this privilege. The applicant acknowledged he understood the Tribunal’s explanation. The applicant did not rely on or assert his privilege against self-incrimination during the hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 grounds 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.
Does the ground for cancellation exist?
s.116(1)(e) - risk to Australian community or individual
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: (i) the health, safety or good order of the Australian community or a segment of the Australian community; or (ii) the health or safety of an individual or individuals.
The issue in the applicant’s case is, given his presence in Australia, whether he is or may be[1] a risk to the health, safety or good order of the Australian community or a segment of the Australian community under s.116(1)(e)(i), noting that s.116(1)(e)(ii) addresses a risk to the health or safety of an individual or individuals.
[1] Rather than “would or might be” as this term would only apply if the applicant had not yet arrived in Australia.
The use of the words “may be a risk” was considered by the Federal Circuit Court in Gong v Minister for Immigration and Border Protection[2] in the following manner:
40. … Simply put, the fact that sub-s.116(1)(e) is engaged where the Minister is satisfied that a visa holder’s presence “may be a risk” to certain matters means that there does not have to be … any direct, solid or certain foundation before the power to cancel the visa can arise. In other words, it can arise on the possibility that some event occurred in the past. In this case, that possibility was supported by the laying of the charges. That is to say that that fact alone was not legally irrelevant to the question posed by sub-s.116(1)(e).
[2] Gong v Minister for Immigration and Border Protection [2016] FCCA 561
The reasoning in Gong was accepted and followed by the Federal Circuit Court in Howard v Minister for Immigration[3] where the ground for the cancellation of a visa under s.116(1)(e) was found to have been satisfied in circumstances where the visa holder had not been charged with any criminal offence but the decision maker relied on findings made against the visa holder by a foreign court in civil proceedings conducted in the visa holder’s absence.
[3] Howard v Minister for Immigration [2017] FCCA 2916.
According to the Department’s Procedures Advice Manual known as PAM3:
The term ‘risk’ is not defined in the Act, and is by its very nature speculative and uncertain. However, the ordinary meaning of the term risk relates to the chance of something deleterious or harmful happening in the future.[4]
[4] PAM3, Visa cancellation instructions, general visa cancellation powers (s109, s116, s128, s134B and s140).
Similarly, the term “safety” is not defined in the Act for the purposes of s.116(1)(e) and has been found to be used in accordance with its ordinary meaning: see Newall v MIMA.[5]
[5] Newall v MIMA [1999] FCA 1624 at [21]
The threshold for the s.116(1)(e) ground for cancellation of temporary visas was deliberately lowered by the Parliament in 2014. As the Federal Circuit Court noted in Gong:[6]
38. Sub section 116(1)(e) was repealed and substituted by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth). Prior to that amending legislation, sub-s.116(1)(e) was engaged by risk to the health, safety or good order “of the Australian community”, and the amendment effectively added the words “or a segment of the Australian community”. In addition, sub-s.116(1)(e) was previous engaged with the visa holder’s presence in Australia “is, or would be, a risk” and the amendment change this to “is or may be, or would or might be, a risk”. …
41. Both parties relied on the various parts of the Explanatory Memorandum circulated in respect of the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth). There, it was explained (at [13]) that this change is sought “to lower the threshold of this cancellation ground, so that it exists where there is a possibility that the person may … be a risk … as well as where there is demonstrated to be an actual risk of harm”. With respect to the careful argument presented by both counsel, the fact that the amendment lowered the threshold is as plain as pikestaff and the statement to that effect in the Explanatory Memorandum is unhelpful in, if not irrelevant to, the construction of sub-s.116(1)(e).
[6] Gong v Minister for Immigration & Anor [2016] FCCA 561 at [38] and [40].
In this regard, the applicant’s representative submitted in a response dated 20 February 2019 to the Notice of Intention to Consider Cancellation of a visa (NOICC) dated 6 February 2019:
The purpose of this letter is to show that:
(a) the proposed grounds to cancel Mr Laki’s visa do not exist, that is, Mr Laki’s presence in Australia is not, may not be, would not or might not be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community; …
1. Proposed grounds to cancel Mr Laki’s visa do not exist
Mr Laki accepts that he has been charged with criminal offences as set out in the Notice.
Section 116(1)(e)(i) focuses on whether the applicant is or would be a ‘risk’ to the health and safety of the Australian community or a segment of the community. There is no definition of ‘risk’ contained in the Act or the Migration Regulations 1994 (the Regulations), however the plain meaning is given as ‘a possibility, chance or likelihood of harm, hazard or loss’. [1]
We submit that the possibility, chance or likelihood that Mr Laki would cause harm, hazard or loss to the Australian community or a segment of the community does not exist including for the reasons below.
In a letter from Holly Boylan of Furstenberg Law dated 19 February 2019 …, Ms Boylan describes the offending as a one-off discrete incident which, in Furstenberg Law’s view is of low range seriousness. Furstenberg Law also consider Mr Laki’s prospects of rehabilitation as very good and that Mr Laki is unlikely to reoffend given the circumstances of the offending. Furstenberg Law act for Mr Laki in respect of the subject allegations.
Additionally, the lack of risk is strongly evidenced by the fact that the Court did not consider there was or is or might be a risk to the safety of the Australian community or a segment of the community. This is because Mr Laki was immediately granted bail as evidenced by Mr Laki’s bail notice… .
In granting Mr Laki bail, the Court must have been satisfied that Mr Laki, among other things, is not an unacceptable risk, is not going to commit other offences whilst on bail, will not endanger the public and will not interfere with witnesses or otherwise obstruct the course of justice. [2] This is a significant matter which we respectfully submit you should take into account in not cancelling Mr Laki’s visa, and to which significant weight should be given.
Mr Laki has no criminal record and has been in Australia almost 14 years. This is evidenced by Ms Boylan’s letter … . The fact that Mr Laki has no prior convictions shows that the relevant incident was an outlying incident out of character for Mr Laki and therefore is not a risk. It is well supported by various literature that past behaviour guides and predicts future behaviour. [3] This factor should also be afforded significant weight, as should Mr Laki’s length of time in Australia before the subject allegations.
Since the alleged incident, Mr Laki has been regularly visiting a psychologist to receive support to ensure such an incident does not again occur and to identify why it may have occurred. We are instructed that Mr Laki consumed alcohol at the time of the incident which is not something he regularly involves himself in and it then had an adverse impact on him. Mr Laki does not intend to put himself in such a situation at any future time. (sic) [footnotes omitted] [7]
[7] Response to the NOICC dated 20 February 2019, Tribunal file, folios 84 to 86 at folios 85 to 86 (back).
On 6 March 2019, two days after the applicant’s visa was cancelled, he was detained by the Department and placed in immigration detention, whereupon he applied for a Bridging E (Subclass 050) visa. The applicant was granted a Bridging E visa on 14 March 2019. A copy of that visa was provided by the applicant to the Tribunal.[8] Since that time the applicant has lived in the community.
[8] Tribunal file, folios 35 to 38.

Following the granting of the Bridging E visa to the applicant his representative made the following additional written submissions to the Tribunal on 3 April 2019:
17. The Bridging E visa was granted with conditions including that Mr Laki must not engage in criminal behaviour (8564). To have been granted the Bridging E visa, the Department needed to have found, among other things, that Mr Laki will comply with the condition not to engage in criminal behaviour.
18.It follows that if the Department found that Mr Laki was likely to comply with condition 8564, Mr Laki may not be a risk to the Australian community and so s116(1)(e)(i) of the Act is no longer a foundation for cancelling Mr Laki’s visa.
19.It can be inferred that the Department’s opinion of Mr Laki changed after his visa was cancelled and when granting him a Bridging E visa by virtue of the further material given to the Department in support of the Bridging E visa application… .[9]
[9] Tribunal file, folios 55 to 56.
At the time of this decision the applicant has pleaded guilty to seven criminal charges for which he is due to be sentenced in September 2019 in the County Court of Victoria.[10] Based on the information before the Tribunal the first six of those criminal charges arose in circumstances where the applicant assaulted four people, including his then de facto partner, over a relatively short period of time on the evening of Sunday 25 November 2018.
[10] Letter from Furstenberg Law dated 2 April 2019, Tribunal file, folios 89 to 90.
The seventh charge arose, according to submissions made on behalf of the applicant, from the applicant sending a message on 9 January 2019 on his mobile telephone using the WhatsApp application to a group that included his former de facto partner and her parents. The applicant’s evidence, through his representative’s submissions, is the applicant did not think the message, which was an apology, would breach the intervention order.[11] The Tribunal notes that breaching an intervention order is a strict liability offence[12] which means that the intent of the applicant, noting he has pleaded guilty to the charge, is irrelevant to the charge being made out but may be relevant to sentencing. As noted above, the applicant provided the Tribunal with a copy of what it is submitted is the apology he sent, although the version provided to the Tribunal is extracted in an email provided by the applicant’s lawyers acting for him in relation to the criminal charges.
[11] Written submission from the applicant’s representative dated 8 April 2019 at paragraphs 10 and 11, Tribunal file, folios 93 to 94 at 94 (back).
[12] See section 123(2) of the Family Violence Protection Act 2008 (Vic).
The Tribunal does not accept the submissions above that the applicant’s offending is:
·     A one off discrete incident or an outlying incident;
·     “of low range seriousness”; or
·     Unlikely to be repeated.
The Tribunal also does not accept the submissions that the granting of a Bridging E visa or the granting of bail to the applicant demonstrate the applicant is not a risk to the Australian community or a segment of the Australian community. This is discussed further below.
In relation to the submission that the applicant’s behaviour on 25 November 2018 was a one off discrete incident or an outlying incident this submission is not supported by the evidence before the Tribunal. The applicant does not have any prior criminal convictions but does have the prior criminal matter from July 2008 which resulted in a penalty of a $500 fine. The applicant gave evidence that this matter arose from he and three cousins attending a nightclub, one cousin becoming involved in a fight outside the nightclub resulting in his arrest and the applicant trying to check that his cousin was alright as the cousin was being placed in a police vehicle, including the applicant ignoring a police officer’s direction to walk away and the applicant pushing the police officer to try and get to his cousin, resulting in the applicant being arrested at the scene. The applicant told the Tribunal he had consumed alcohol at the time and thought this had contributed to his offending as he told the Tribunal he thought the consumption of alcohol at the time made him more reckless than he otherwise might have been.
The applicant pleaded guilty to one charge of contravening a police direction or requirement and two charges of assaulting or hindering a police officer. The applicant recalled pushing past a police officer to try and check on his cousin. Given the penalty imposed on the applicant as a result of his guilty pleas, the Tribunal accepts the submission of the applicant’s representative that this matter is of “low criminality”.
The applicant also gave evidence that he has been involved in fights without any police involvement. The applicant told the Tribunal that he had not gone around assaulting anyone but he has been in fights in “rugby games and stuff like that”, back when he was younger. The applicant explained to the Tribunal that if a teammate got involved in a fight during a game he would go in there and help him, including by striking people.
The Tribunal asked the applicant whether he has any recollection of being aggressive or violent when intoxicated at other times. The applicant replied he thought the incident that led to the criminal charges was a one off incident. However, the applicant did explain it depends on what is happening around him at the time. He told the Tribunal if someone picks on him “or something like that” or picks on a friend then he can become upset about that. The Tribunal asked the applicant if he would then defend himself or his friend to which the applicant replied “that’s correct”.
The applicant’s representative submitted that these matters, or at least the fighting during rugby games in the past, are materially different from the violent behaviour that led to the criminal charges.[13] While the Tribunal accepts these matters are materially different from the incidents which led to the applicant being criminally charged, they are sufficient in the Tribunal’s view for the Tribunal to reject the submissions made on the applicant’s behalf that his violent behaviour on the evening of 25 November 2018 was a one off incident or outlying behaviour for the applicant.
[13] Written submission from the applicant’s representative dated 8 April 2019 at paragraph 7, Tribunal file, folios 93 to 94 at 94 (back).
In relation to the submission that the applicant’s offending is of low range seriousness, the Tribunal notes the applicant has been charged under s.77(1) of the Crimes Act 1958 (Vic) with the offence of aggravated burglary. This is an indictable offence, the maximum punishment for which is 25 years imprisonment. This is not an offence that can be tried and heard summarily under s.28 of the Criminal Procedure Act 2009 (Vic), unlike the remainder of the charges filed against the applicant. This charge involves the applicant forcing his way into a property to assault an occupant therein. Five of the charges involve violence directed against other people in circumstances where the applicant is described as grabbing his then domestic partner by the scruff of the neck and throwing her across the room and also as punching three of the four victims to the head, two of those victims being punched to the head multiple times.
In the Tribunal’s view these circumstances are not of “low range seriousness” and the applicant has not been charged with offences that amount to charges of low range seriousness. Reflecting the seriousness of the charges, the applicant will be sentenced in the County Court of Victoria. The Tribunal’s view is that the violent assault of a domestic partner and the punching of people, particularly to the head, are not ‘low range’ matters and it is common knowledge that such dangerous and violent behaviour is of great concern to the Federal and to State governments and to the community at large.
In relation to the submission that the applicant is unlikely to reoffend, the applicant’s representative in a written submission to the Tribunal dated 3 April 2019, submitted:
7.On 22 February 2019, a report from Mr Laki’s psychologist was given to the Department in further support of Mr Laki’s visa not being cancelled. The report is on the Department’s file.
8.The report finds, among other things, that Mr Laki:
(a) attended psychological counselling weekly;
(b) has been an active and co-operative participant of the counselling;
(c) has a gentle disposition;
(d) has strong principles of family, morality, community and spirituality;
(e) does not need a formal psychological diagnosis;
(f) although alcohol was an issue in the alleged offending, he does not have an ongoing problem with alcohol;
(g) is unlikely [to] reoffend. (representative’s emphasis)[14]
[14] Written submission from the applicant’s representative dated 3 April 2019, Tribunal file, at folio 56.
The Tribunal accepts that the psychologists first report on the applicant[15] is supportive of the applicant and his efforts to understand his behaviour on 25 November 2018, but the report is qualified:
While one can never predict future behaviour, I consider it unlikely that Mr Laki would reoffend, given his remorse and the impact this situation has had upon his life.[16]
[15] Report of Michael O’Neill, Consulting Psychologist dated 22 February 2019, Tribunal file, folio 77.
[16] Tribunal file, folio 77 (back).
The Tribunal notes that the view of the applicant’s criminal lawyers is also that the applicant is “… unlikely to re-offend”.[17]
[17] Tribunal file, folio 78.
The use of the word “unlikely” by both the applicant’s psychologist and criminal lawyer in the context of each of them assessing the risk of the applicant re-offending, indicates to the Tribunal that both are of the view there remains, using the definition of risk submitted by the applicant’s representative, a possibility or chance of the applicant being a risk to the health, safety or good order of the Australian community or a segment of the Australian community.
The Tribunal asked the applicant if he thought there was any possibility of him being in similar circumstances again in the future. The applicant responded “no, never” and explained that he will not touch alcohol again, even after his criminal matters are resolved, because the 25 November 2018 incident has been a wakeup call for him and has changed him. The applicant told the Tribunal that he is better off without alcohol because he knows then he will not lose control. He said he had discussed this with his psychologist who had counselled him that he could consume alcohol but should just count his drinks. The applicant told the Tribunal he has decided he does not want to ever put himself in a situation where he may lose control again and so has decided he cannot consume alcohol again, ever. The Tribunal accepts the applicant’s evidence he is committed to abstaining from consuming alcohol for the rest of his life. This evidence is significant because the Tribunal notes it is a condition of the applicant’s bail is that he is “not to consume alcohol” but his personal commitment extends beyond this legal obligation.[18]
[18] Undertaking of Bail entered into on 7 January 2019, Tribunal file, folio 81.
The applicant also told the Tribunal in his work as a skipper of prawn trawlers it is up to him to decide whether his boat will be ‘dry’ or not, meaning it is up to the applicant to decide whether he will allow alcohol to be consumed on the boat he skippers. The applicant’s evidence is the boats he has skippered to date have been dry boats and will be so in the future. The Tribunal accepts this evidence.
The Tribunal also accepts the applicant’s evidence of his reflection on his offending on 25 November 2018 and of his genuine intention not to consume alcohol again as a means to avoiding a repeat of that behaviour. However, given the evidence above, the Tribunal does not accept the submission of the applicant’s representative that:
… the proposed grounds to cancel Mr Laki’s visa do not exist, that is, Mr Laki’s presence in Australia is not, may not be, would not or might not be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community;[19]
[19] Response to the NOICC dated 20 February 2019, Tribunal file, folios 84 to 86 at folio 85 (back).
In relation to the applicant being granted a Bridging E visa after the delegate’s decision to cancel his Subclass 444 visa, the applicant’s representative made the submissions quoted in paragraph 30 above. In support of these submissions the representative referred to nine discretionary considerations set out in PAM3 and submitted the applicant had not done anything contrary to those considerations, had “conducted himself appropriately whilst in immigration detention… and has strong ties to the Australian community… . These findings further support the reinstatement of his substantive visa.”[20]
[20] Written submission from the applicant’s representative dated 3 April 2019, Tribunal file, folios 55 to 56.
The Departmental policy considerations referred to by the applicant’s representative are those used by the Department to assess whether an applicant for a Bridging E visa will comply with any conditions imposed on the Bridging E visa and to decide what conditions should be imposed, noting that it is Departmental policy that in the case of the first grant of a Bridging E visa (as in the case of the applicant) as a minimum no work (condition 8101), no study (condition 8201 or 8207), must report at a time and place (condition 8401) and must notify the Department at least two days in advance of any change of address (condition 8506) are to be imposed. In the applicant’s case, condition 8564 must not engage in criminal conduct was also imposed on his Bridging E visa. If the delegate forms the view that the imposition of a financial security is necessary to ensure compliance with the conditions imposed then in granting a Bridging E (Subclass 050) visa (but not a Bridging E (Subclass 051) visa) the delegate can require the applicant to lodge a financial security with the Department. If the delegate forms the view that an applicant for a Bridging E visa will not comply with the conditions imposed on the visa, with or without a security, then the applicant fails to meet cl.050.223 of Schedule 2 to the Regulations and the application for the Bridging E visa must be refused. There is no evidence before the Tribunal that a financial security was imposed on the applicant’s Bridging E visa.
The above analysis demonstrates that the considerations before the delegate in deciding to grant the applicant a Bridging E visa are different from those before the Tribunal in assessing whether the ground for the cancellation of the applicant’s Subclass 444 visa under s.116(1)(e) has been made out. In deciding to grant the applicant a Bridging E visa the Tribunal accepts the delegate must have decided the applicant would comply with the conditions of the Bridging E visa whilst living in the community and that this is a significant circumstance, particularly when it comes to the Tribunal assessing its discretion whether the applicant’s Subclass 444 visa should remain cancelled or not.
The Tribunal does not have evidence before it to support the inference asserted by the applicant’s representative, quoted above at paragraph 30, that in granting the applicant a Bridging E visa the Department’s, or more accurately the delegate’s, opinion of the applicant changed since the cancellation of his visa and as he now has to comply with condition 8564 not engage in criminal conduct he cannot be a risk to the Australian community.
The granting of a Bridging E visa to the applicant after the delegate’s decision to cancel his substantive visa under s.116(1)(e), does not preclude the Tribunal from finding that the ground for cancellation of the applicant’s visa has still been made out. This reflects the significantly different considerations that apply to the granting of a Bridging E visa and the cancellation of a Subclass 444 visa under s.116(1)(e) of the Act and the differences in the purpose of and rights associated with each of those visas.
The applicant’s representative also submitted in relation to the applicant being granted a Bridging E visa:
The department did not refer Mr Laki under s501 of the Act (as the department commonly does) before deciding whether to grant, and before granting, Mr Laki a Bridging E visa. This works in favour of Mr Laki having his substantive visa reinstated as the department must have considered that Mr Laki’s character did not first need to be assessed or that Mr Laki’s criminal charges were not of more serious nature.[21]
[21] Written submission from the applicant’s representative dated 8 April 2019, Tribunal file, at folio 94.
The Tribunal accepts there is no evidence before it that the applicant was referred for character assessment under s.501 of the Act. However, it would be mere speculation by the Tribunal to find as a result that the Department had a more positive view of the applicant’s character at the time of granting his Bridging E visa than it did at the time his Subclass 444 visa was cancelled or that the Department did not consider the criminal charges the applicant was facing were not ‘more serious’. The Tribunal is not prepared to speculate to make those findings.
Similar considerations apply to the granting of bail to the applicant. There is a strong presumption of the right to liberty in the criminal justice system in Victoria which is reflected in both the Bail Act 1977 (Vic)[22] and the Charter of Human Rights and Responsibilities Act 2006 (Vic).[23] There are no equivalent presumptions in the migration law.
[22] Refer to ss.1B(1)(b) and 4 of the Bail Act 1977 (Vic).
[23] Refer to ss.21 and 25 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
The Tribunal clarified with the applicant and his representative that the applicant was not “immediately granted bail” as submitted in the applicant’s response to the NOICC.[24] The chronology that the applicant’s representative submitted to the Tribunal states at item 10 that the applicant was remanded in custody on 26 November 2018 and in item 12 that he was granted bail six weeks later on 7 January 2019. The applicant told the Tribunal that originally his criminal lawyer advised him there would be an application for bail within a week of the applicant being remanded in custody and then within two weeks and that eventually, in part due to the Christmas and New Year holidays, the application was not made until 7 January 2019 whereupon bail was granted to the applicant. The Tribunal accepts this evidence.
[24] Response to the NOICC dated 20 February 2019, Tribunal file, folios 84 to 86 at folio 85 (back).
Some categories of criminal offence in Victoria are subject to a two test process for determining whether bail is to be granted or must be refused. Section 4E of the Bail Act 1977 sets out the ‘unacceptable risk’ test for the granting of bail in Victoria and applies to all criminal offences, in the case of the categories the Tribunal referred to earlier as the second test. Section 4E(1) provides that bail must be refused in circumstances the applicant’s representative referred to above where the risk of the person applying for bail endangering someone, committing an offence, interfering with witnesses or failing to comply with their bail conditions, amongst other things, “is an unacceptable risk”. The burden of proving such an unacceptable risk is on the prosecutor (per s.4E(2)) and the bail decision maker must consider the “surrounding circumstances” (per s.4E(3)) which is defined in ss.3 and 3AAA of the Bail Act 1977 as requiring the decision maker to consider 14 non-exhaustive considerations.

The process to determine eligibility for bail in Victoria is a materially different process and series of considerations than that required by s.116(1)(e) of the Act to determine whether a ground for the cancellation of a temporary visa exists. I find no useful guidance to determining whether the ground for cancellation exists from whether the applicant has, or has not, been granted bail under the Bail Act 1977.
In the present case the applicant has been charged and has now pleaded guilty to seven criminal charges relating to the assault of four different people and the unlawful entering into private premises. For the reasons set out above the Tribunal does not accept that behaviour is a one off discrete incident or an outlying incident. Both his psychologist and criminal lawyer have indicated he is “unlikely” to reoffend which in the Tribunal’s view means there remains a possibility but not a probability of the applicant reoffending.
In addition, the applicant has provided documents to the Tribunal that show on 26 March 2019 the applicant consented to the Magistrate’s Court of Victoria issuing a final Intervention Order preventing the applicant from committing family violence, locating, contacting, communicating with or approaching his former de facto partner at the time of the 25 November 2018 incident. This order is currently in effect and expires on midnight 25 March 2020. This information indicates to the Tribunal that the Magistrate’s Court of Victoria and Victoria Police feel the Intervention Order is necessary to ensure that the applicant does not commit further violence against his former de facto partner.
The Tribunal finds these circumstances are sufficient to meet the low threshold in s.116(1)(e)(i) that the applicant ‘is or may be, or would or might be a risk’ to the safety or good order of the Australian community or a segment of the Australian community. The applicant pleaded guilty to criminal charges in 2008, has been charged and pleaded guilty to criminal offences which are crimes of violence in 2018, there is a current intervention order in place to prevent the applicant committing further violence against his former defacto partner and the applicant’s evidence is he has been involved in incidents of violence both on the rugby field when he was younger and when people picked on him or his friends, although none of those incidents resulted in criminal charges or police involvement.
In these circumstances the Tribunal finds that the applicant may be a risk to the safety or good order of the Australian community or a segment of it. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(i) 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
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 ‘General visa cancellation powers’ section of PAM3.
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
The delegate’s decision records that the applicant has now lived in Australia since February 2008, although he returned to New Zealand to live for eight months between July 2014 and March 2015, and previously lived in Australia between 1996 and 1999.[25] The applicant told the Tribunal that the purpose of his travel and stay in Australia is that he has found a good job he is passionate about which enables the applicant to financially support or assist his daughter in New Zealand, his adoptive parents in Australia and his biological parents in Western Samoa and he is able to have a better life here.
[25] Delegate’s decision cancelling the applicant’s Subclass 444 visa dated 4 March 2019, Tribunal file, folios 1 to 4 at folio 2.
The applicant told the Tribunal he moved to New Zealand in July 2014 after his daughter was born in April 2014 to accompany his daughter and her mother, but returned to Australia in March 2015 as he could not find any work in the fishing industry or even at meat works “or anything really” in New Zealand.
The applicant is concerned that if his visa remains cancelled he will be unable to continue to financially support his extended family. It is not clear to the Tribunal to what extent the applicant provides such financial support, but this is discussed below in more detail in the Tribunal’s consideration of hardship that may arise from the ongoing cancellation of the applicant’s visa.
The applicant also has strong family and employment ties to Australia. As is discussed further below he has been employed with the one employer for 10 years now and that employer is keen to continue to employ the applicant. The applicant’s adoptive parents live in Brisbane and he has three biological siblings and five adoptive siblings[26] who all live in Australia and who the applicant’s evidence is he stays in touch with regularly. The Tribunal accepts this evidence and finds in this consideration it weighs against the ongoing cancellation of the applicant’s Subclass 444 visa.
[26] The applicant’s mother wrote in her letter of support for her son, the applicant, that she is the mother of seven (biological) children and four adoptive children. The Tribunal did not discuss this apparent discrepancy with the applicant and places no weight upon it. See Tribunal file, folio 63.
While the applicant’s desire to continue to be in the same country as many of his family members and to financially support his extended family is understandable and in the latter respect even commendable, the Tribunal finds that the applicant’s present circumstances and his desire to continue working and living in Australia and to have a better life here, particularly when his daughter as his only child lives in New Zealand, do not amount to a compelling need for the applicant to remain in Australia.
Overall, this consideration supports the cancellation of the applicant’s visa and on balance the Tribunal gives it only modest weight.
The extent of compliance with visa conditions
There are no conditions that attach to the applicant’s Subclass 444 visa.
The evidence before the Tribunal is that the applicant’s Bridging E visa, granted on 14 March 2019, is subject to the following conditions (in summary):
·8101 – no work;
·8207 – no study;
·8506 – notify change of address; and
·8564 – must not engage in criminal behaviour.[27]
[27] Notice of Visa Grant dated 14 March 2019, Tribunal file, folios 64 to 67.
There is no evidence before the Tribunal that the applicant has breached any of these conditions. The weight the Tribunal gives this consideration is reduced by the fact the applicant has held the Bridging E visa for just over seven weeks.
The Tribunal finds this consideration weighs against the cancellation of the applicant’s Subclass 444 visa and the Tribunal gives it some weight.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the applicant and any family members
The Tribunal accepts the evidence that, apart from eight months spent in New Zealand in 2014 – 2015, the applicant has been a long term resident of Australia, having first arrived in Australia in 1996 for three years and then returned in February 2008 and “despite departing on a number of occasions… it appears he has ordinarily resided in Australia since.”[28]
[28] Delegate’s decision cancelling the applicant’s Subclass 444 visa dated 4 March 2019, Tribunal file, folios 1 to 4 at folio 2.
The applicant told the Tribunal his adoptive parents live in Brisbane and he has three birth siblings and five adoptive siblings and stays in touch with these family members weekly. The applicant said in the past when he was finished working he would go to Brisbane for one to two weeks to visit his family before returning to his then de facto partner in Melbourne. He also told the Tribunal following the finalisation of his criminal matters he intends to move to Brisbane to live to be closer to his family. The Tribunal accepts this evidence.
The applicant’s adoptive mother wrote a letter of support for the applicant that included the following statements:
… I am a mother of seven beautiful children and greatest blessing of adopting additional four. We come from a large close tight knit family and are currently residing in Brisbane, Australia.
…
It will sadden me if [Laki] goes back to New Zealand as we have no relatives there. Laki is a good son. Always willing to put others before him. He has continuously supported our family, since his father is no longer working due to his health condition.
Laki had never been in trouble with the law while growing up until now. He has no criminal history. My son Laki worked full time for several years and paid full taxes to support his daughter and our family. As for his job, he is very reliable employee working as a Captain trawler for Raptis & Sons.
Laki is a good character whom made a wrong choice. A wrong choice that changed him. I know deep in his heart that he has learnt what his done and is remorseful for his actions. All I ask for you is to give him a second chance. An opportunity for himself to learn and grow and to become a better person he is today. (sic) [29]
[29] Tribunal file, folio 63.
The Tribunal accepts that the applicant is close to his family in Australia and apart from his daughter, which is a significant relationship in his life, has no other birth or adoptive relatives in New Zealand.
The Tribunal finds that the forced relocation to New Zealand arising from the ongoing cancellation of the applicant’s Subclass 444 visa will cause the applicant and his family emotional hardship arising from their separation. This consideration weighs against the ongoing cancellation of the applicant’s Subclass 444 visa and is only modestly ameliorated by the presence of the applicant’s daughter in New Zealand.
The applicant told the Tribunal that he has worked as a prawn fisherman in the Gulf of Carpentaria for most of the past 10 years. A representative of his employer provided a written reference which included the following statements:
Laki started working in the Northern fleet in April 2009 as a deckhand share fisherman. With training and timing and initiative Laki went on to college and easily passed his courses to become a ships master, at which time he received his first relief skipper job in August 2017.
With Laki’s progression from deckhand to master I have had constant contact with him, and in all aspects, I have found him to be extremely hardworking, honest and trustworthy.
He has developed excellent management skills in both managing the daily running of a fishing vessel, and importantly the ability to manage his crew.
…
Laki maintains an alcohol and drug free work place on vessels that he masters.
…
In the 10 years he has worked with A Raptis & Sons, he has always shown himself to be of good character and never has done anything wrong. He is well respected and admired in his field and a great asset to the fishing industry. It would be a great loss for the industry should Laki not be able to continue to work in it. (sic) [30]
[30] Tribunal file, folio 79.
The applicant’s evidence to the Tribunal was that he could resume his employment very quickly if the Tribunal set aside the decision to cancel his Subclass 444 visa.
The applicant’s evidence of his employment history was supported by the Tribunal being provided with a copy of his two page resume, which stated the applicant has worked in the fishing industry for over 15 years and described his qualifications, experience and skills.[31] The Tribunal accepts that the applicant has a positive work history in Australia with an employer who is prepared to hold a position with significant management responsibilities open for the applicant for an unspecified but not indefinite period of time. The Tribunal finds that the continued cancellation of the applicant’s Subclass 444 visa will cause the applicant to lose this employment which will cause the applicant significant financial and emotional hardship. The Tribunal finds that the applicant’s positive employment history in Australia and the hardship that the loss of his current employment will cause him to be considerations that weigh against the ongoing cancellation of his Subclass 444 visa.
[31] Tribunal file, folio 58.
The applicant’s representative submitted:
Mr Laki’s income is dependent on him continuing to be employed. He will not be able to sustain employment if his visa is cancelled. As previously mentioned, he was unable to gain employment in New Zealand for almost a year. Men who become unemployed have been shown to have greater levels of depression, anxiety, make more visits to physicians and take more medications.[4] Additionally, he may not be eligible for welfare payments as he is not ordinarily resident in New Zealand which may result in lack of basic living resources (accommodation, food etc.).
Mr Laki’s income also supports his four-year-old daughter in New Zealand, and his parents in Samoa. As the mother to his daughter is unemployed, Mr Laki’s financial monthly contributions of $800 to his ex-partner plus any extra required for clothing, food etc are vital in maintaining sufficient levels of upbringing needs for his daughter. If he loses this income, his daughter will suffer hardship from the loss of income sent to the mother.[32] [footnote removed]
[32] Response to the NOICC dated 20 February 2019, Tribunal file, folios 84 to 86 at folio 85 (back).
The Tribunal discussed the applicant’s employment prospects in New Zealand with the applicant. His evidence was that he could not find any work in the fishing industry in New Zealand in 2014 – 2015 despite extensive searching. The applicant told the Tribunal he ended up applying for work outside the fishing industry such as at meat works or “anything really” but could not even find work in non-fishing industry roles. He indicated that the introduction of fishing quotas and limiting fishing grounds, whilst helping the fishing industry in New Zealand, also meant that there were plenty of ship’s masters and deckhands looking for work when he was there. The applicant told the Tribunal that he doesn’t believe there will have been any improvement in his employment prospects in the fishing industry in New Zealand since 2014, even though he is now qualified as a ship’s master.
The Tribunal also accepts that if the applicant was forced to return to New Zealand and became and remained unemployed that this would cause him significant financial, emotional and psychological hardship. Some insight into this hardship is gained by the Tribunal from the submission of the applicant’s representative on 8 April 2019, after the hearing:
13. At the hearing on 4 April 2019, Mr Laki gave evidence of his mental health. Mr Laki said to the effect that he has depression and anxiety which is getting worse (he said he is ‘spiralling down’) including as a result of his inability to work and financially support his daughter, biological parents and adoptive parents. Since the hearing on 4 April 2019, Mr Laki has been extremely depressed and, as a result, has not given further instructions. Consequently, the matters set out in these further submissions are those for which Mr Laki had already conveyed instructions on or before 4 April 2019.[33]
[33] Tribunal file, folios 93 to 94 at folio 93.
The Tribunal accepts this submission. The submission is consistent with the Tribunal’s recollection of the applicant’s evidence in this regard. In an email dated 1 April 2019 to the applicant’s representative, the applicant’s consulting psychologist Mr O’Neill stated:
I reviewed Mr Laki today, 1^st April, and note there are no significant changes to his mental state or general circumstances. He is managing his finances, maintained contact with his family, attends church weekly, goes to the gymnasium and maintains general order in his life. He is very depressed about his overall situation, given that he had intended to return to full-time work two weeks ago.
While I can make no comments about his visa situation, I am of the opinion that he needs to return to work as a trawler skipper as soon as possible. His employer has kept his job open for the time being; however, time is of the essence as the fishing season concludes in July.[34]
[34] Tribunal file, folio 41.
In an earlier report dated 22 February 2019, Mr O’Neill stated:
Naturally his mental health is suffering at present, given the potential for his visa to be cancelled. Should this happen, he would have to quit his work as a skipper, leaving him unemployed and with no clear future. Given that he has now separated from his de facto partner, his plan was to establish contact with his family in Queensland and to continue working as a skipper on a trawler where he currently works; I understand he is contracted to again begin work when the season starts mid March.[35]
[35] Tribunal file, folio 77 (back).
The Tribunal accepts this evidence of the impact of the applicant’s circumstances to date upon him, given the uncertainty surrounding the applicant’s future and also accepts that the ongoing cancellation of the applicant’s Subclass 444 visa will exacerbate this hardship, at the very least in the short term. This is a consideration that weighs against the continued cancellation of the applicant’s Subclass 444 visa.
The Tribunal does not have any independent information before it of the employment opportunities in the fishing industry in New Zealand in 2014 – 2015 or now or employment opportunities in New Zealand generally. This consideration does not require definitive proof of the hardships that may be experienced, but the evidence available does contribute to the weight the Tribunal can give to the relevant consideration.
The Tribunal accepts the applicant’s evidence both of his inability to find work in New Zealand in 2014 – 2015 and his concern about being able to find work in the fishing industry or even just generally if he is forced to return to New Zealand because his Subclass 444 visa remains cancelled. As noted above, this weighs against the ongoing cancellation of his Subclass 444 visa.
The applicant’s oral evidence is that since January 2018 he has sent $800 monthly to the mother of his daughter in New Zealand, for his daughter’s support which the applicant told the Tribunal he recently reduced to $400 per month with a gap in transfers when he was remanded in prison in November 2018. The applicant also told the Tribunal that he sends his biological parents in Samoa and adoptive parents in Queensland anywhere from $1,000 to $2,000 when they request support and when he can afford it.
The Tribunal also notes that in the letter of support provided by the applicant’s mother, referred to above, the applicant’s mother states the applicant has financially supported his daughter and adoptive parents, although the letter of support does not mention the quantum or frequency of such support.
The applicant provided limited additional documentary evidence to support the above evidence of the financial support he provides. The applicant provided the following relevant documents to the Tribunal:
·An undated screenshot of his three bank account balances[36] that the applicant’s representative has noted as being taken on 13 March 2019;[37]
·A statement for a savings account for the period 20 August 2018 to 20 February 2019;[38] and
·A statement for a transaction account for the period 9 November 2018 to 11 January 2019.[39]
[36] Applicant submission dated 1 April 2019 and titled ‘Documents Relied upon by Mr Laki’ at document 12, Tribunal file, folio 68.
[37] Applicant submission dated 1 April 2019 and titled ‘Documents Relied upon by Mr Laki’, index document, Tribunal file, folio 87 (back).
[38] Tribunal file, folios 75 to 76.
[39] Tribunal file, folios 72 to 74.

The Tribunal discussed these documents with the applicant during the hearing. The Tribunal told the applicant during the hearing it could find evidence of only one $800 transfer to the mother of the applicant’s daughter in New Zealand, being from his transaction account on 10 January 2019. The Tribunal also could not find any transfers of $400 in the documents the applicant provided.
The applicant told the Tribunal that his relationship with the mother of his daughter had not been good at the time and this had caused a gap in payments as he had not been able to contact them for “… a long time”. The applicant told the Tribunal their relationship had improved more recently and he has maintained regular contact with his daughter, speaking to her as recently as two days before the Tribunal’s hearing, and his $800 transfers have been regular since then. The Tribunal indicated to the applicant that the Tribunal could not see evidence of regular transfers in the financial paperwork provided by the applicant and asked the applicant to provide such evidence within an agreed timeframe after the hearing, to which the applicant agreed. Further information was not provided to the Tribunal by the applicant as requested, presumably for the reasons the applicant’s representative stated as noted above.
Similarly the Tribunal discussed with the applicant his financial support of his parents in Samoa and Queensland. The applicant told the Tribunal he used money transfer services to send money to his parents. The Tribunal asked the applicant to provide documentary evidence after the Tribunal hearing of such transfers to support his oral evidence. The applicant agreed to do this but the additional information was also not provided.
The Tribunal accepts the applicant financially supports his daughter in New Zealand and his parents in Samoa and Queensland periodically. The Tribunal finds each of the recipients will suffer some financial and potentially other hardship if the applicant is unable to provide such support in the future. The Tribunal also finds that if the applicant is not able to financially support his extended family this will cause him emotional and psychological hardship.
The Tribunal considers the applicant’s financial support of his extended family and the hardship that the potential loss of that support will cause to the applicant and his extended family to be considerations that weigh against the ongoing cancellation of his Subclass 444 visa. However, the weight the Tribunal gives to this hardship is ameliorated by:
·the lack of documentary evidence provided by the applicant of the amount and frequency of such financial assistance; and
·the fact that it is not known whether or what type of employment the applicant may be able to obtain in New Zealand, recognising the applicant fears he may not be able to obtain any employment in New Zealand given his relatively recent experiences there in 2014 – 2015.
The applicant also expressed concern about his own financial circumstances to the Tribunal. The applicant told the Tribunal that prior to the 25 November 2018 incident he and his then de facto partner were saving to buy a house and he had over $50,000 saved. The applicant’s evidence is his savings are now down to $24,000 as a result of having to pay the legal fees of his criminal law matters and migration matters and support himself and his extended family. The applicant expressed concern that as the holder of Bridging E visa he cannot work and he is not confident that his savings will be sufficient to support himself financially until his sentencing on the criminal charges in September 2019.
The Tribunal accepts the applicant’s evidence in this regard and finds that the ongoing cancellation of the applicant’s Subclass 444 visa will and has already caused him financial hardship unless and until he is able to resume employment or find new employment. The Tribunal finds that this consideration weighs against the ongoing cancellation of the applicant’s Subclass 444 visa.

100. This Tribunal finds this overall consideration weighs against the cancellation of the applicant’s Subclass 444 visa and the Tribunal gives this overall consideration considerable weight.
The circumstances in which the ground for cancellation arose
101. The circumstances in which the ground for cancellation of the applicant’s Subclass 444 arose are described above in detail.
102. In response to the potentially adverse information put to the applicant in accordance with the procedure set out in s.359AA of the Act, outlined in paragraphs 12 to 17 above, the applicant responded that he cannot remember what happened but he cannot say that the allegations are not true and he stated that his actions were “horrible”.
103. The applicant told the Tribunal that his consumption of alcohol on the evening of 25 November 2018 caused him to both lose control of his actions and also lose his memory of the evening. His evidence was that he usually drinks beer but on this evening drank Prosecco, with his de facto partner and others.
104. The applicant’s representative submitted in relation to this evidence:
8. Mr Laki maintains that the incident that resulted in the criminal charges in November 2018 was a one-off incident, inspired by the large volume of alcohol consumed. The prosecution summary in the Department file evidences that five bottles of Prosecco were consumed between 3 people. A bottle of Prosecco is 750ml with an average of 12.5% alcohol per volume and is 6.5 standard drinks. Mr Laki gave evidence that he usually drinks beer. A full strength beer has an alcohol volume of up to 4.8%. A 375ml bottle or can of beer is 1.4 standard drinks; so, two of these (totalling 750ml as is the size of a bottle of Prosecco) is 2.8 standard drinks. If Mr Laki only consumed one third of the 5 bottles of Prosecco (although there is no evidence as to whether the five bottles were shared equally; he may have consume more than one third), he would have consumed 10.8 standard drinks. Had he drank the same amount of beer he would have consumed 4.6 standard drinks. It is submitted that the alcohol per volume between Prosecco and beer is evidence of how the consumption of such a high volume of Prosecco could have affected Mr Laki’s mental state at the time of the incident and given rise to the incident.[40]
[40] Applicant submission dated 8 April 2019, Tribunal file, folios 93 to 94 at folio 93 (back).

105. The Tribunal accepts that the applicant could have consumed more alcohol drinking Prosecco than he did usually drinking beer but makes no specific findings in this regard other than accepting the evidence that the applicant was intoxicated when he returned home. The applicant’s evidence is he has no memory of the evening and therefore there is no specific evidence before the Tribunal of how much alcohol the applicant (or his companions) consumed that evening or how this may have compared to his usual consumption of alcohol.
106. The applicant told the Tribunal that drinking is prevalent amongst his friends but he has now learned how dangerous alcohol consumption can be and has not consumed alcohol since the 25 November 2018 incident, which as noted above is a condition of his undertaking of bail. The applicant expressed an intention to permanently abstain from any alcohol consumption to prevent any risk of him losing control in the future.
107. The Tribunal discussed this evidence with the applicant during the Tribunal hearing. The applicant told the Tribunal he had been drunk before and has drunk what he thought are similar amounts before, but without losing control of his actions or his memory. The applicant told the Tribunal he was depressed at the time of the incident because he had promised his de facto partner that he would stop fishing. He said he made this promise because of the amount of time his job caused him to be away from his de facto partner. The applicant told the Tribunal that he didn’t know what he was going to do if he gave up his work.
108. The Tribunal finds that the ground for the cancellation of the applicant’s Subclass 444 visa arose in circumstances where the applicant had consumed a significant, but not unprecedented for him, amount of alcohol on 25 November 2018 and subsequently that evening behaved in a manner that has resulted in him being charged and pleading guilty, but not yet sentenced, to assaulting his then de facto partner (common law assault), entering private premises without permission knowing there was a person inside and with an intent to assault (aggravated burglary), assaulting three other people including by punching each of them to the head (common law assault) and destroyed property belonging to others without permission (criminal damage) and then in January 2019 communicating with his former de facto partner by WhatsApp message in breach of an interim intervention order (contravene family violence interim intervention order).
109. It is a matter for the criminal justice process in Victoria to determine the appropriate punishment through the sentencing of the applicant for the criminal offences he has pleaded guilty to. Punishment is not a matter for the Tribunal.
110. Apart from the criminal damage charge and breach of intervention order charge, the circumstances that have led to the cancellation of the applicant’s Subclass 444 visa are crimes of violence perpetrated against people in circumstances that amounted to random and unprovoked assaults upon them and in the case of the applicant’s de facto partner at the time, amounted to acts of domestic violence.
111. The applicant appeared to the Tribunal to be genuinely remorseful for the consequences of his actions upon his then de facto partner, upon himself and his extended family. Consistent with such remorse the Tribunal notes that the applicant has pleaded guilty to the remaining criminal charges at an early stage of the criminal justice process and has also consented to the intervention order sought by Victoria Police being granted. The Tribunal did not discuss with the applicant and did not receive any specific submissions addressing the applicant’s remorse toward the other three victims of the applicant’s actions. The Tribunal makes no adverse findings against the applicant in that regard.
112. The applicant was ordered as part of the conditions of his undertaking of bail to “comply with all requirements of the Court Integrated Services Program”[41] (CISP). CISP is a bail support program with the aim of reducing reoffending.[42] As part of this program the applicant completed a “comprehensive drug and alcohol assessment on 16 January 2019” and attended three drug and alcohol counselling sessions prior to being detained in immigration detention.[43]
[41] Tribunal file, folio 81.
[42] CISP Case Manager report dated 12 March 2019, Tribunal file, folio 39.
[43] Report from Australian Community Support Organisation Ltd dated 13 March 2019, Tribunal file, folio 43.
113. Each participant in CISP is assigned a Case Manager. The applicant’s Case Manager wrote:
During initial assessment and throughout his CISP episode, Mr Laki expressed deep regret and shame, as well as acknowledged contributing factors to his alleged offending behaviour. With all his CISP appointments, Mr Laki attended punctually, has been polite and forthcoming.
The writer is aware of Mr Laki’s current intervention order and alleged offending. The writer acknowledges Mr Laki’s recent stressors, and despite these he continued to meet both CISP and ACSO obligations. The writer has observed that Mr Laki has been proactive towards treatment with the view of improving his circumstances. Throughout his CISP engagement, Mr Laki has also reported gains in his search for spiritual and religious guidance through a religious group in the community and regularly connecting with peers.[44]
[44] Tribunal file, folio 39 (back).

114. The applicant told the Tribunal he has also attended initially weekly and more recently fortnightly counselling sessions with a clinical psychologist to gain an understanding of his offending. The Tribunal accepts this evidence and accepts that the applicant has made a genuine effort, including voluntary counselling sessions attended at his own cost, to gain insight into the causes of his offending.
115. It is not clear to the Tribunal, in particular from the applicant’s oral evidence, that he has gained full insight into the cause of the circumstances of the cancellation of his Subclass 444 visa despite his genuine efforts to do so.
116. This potential lack of insight, in the Tribunal’s view, is not caused by the applicant’s evidence of his inability to recall the events of the night of 25 November 2018. The Tribunal is concerned that the applicant may not yet fully understand what caused his offending because of his evidence that he has drunk similar amounts in the past to what he thinks he drank on 25 November 2018 without losing control and without losing his memory but blames his behaviour that evening primarily on drinking too much alcohol. This indicates to the Tribunal there were factors in addition to alcohol consumption that contributed to the applicant’s behaviour that night, which the Tribunal accepts includes the applicant’s evidence of feeling depressed at the time. Unless and until the applicant understands the causes of his offending the Tribunal is concerned that there remains a risk that the applicant could lose control again in the future.
117. The Tribunal accepts that the consumption of alcohol appears on the totality of the evidence to have been an important factor in the applicant’s offending and if he can adhere to his commitment not to consume alcohol again this may significantly reduce whatever risk remains of the applicant losing control and harming others.
118. The Tribunal also accepts the observations of the applicant’s psychologist that he “… presents as a quiet and reserved individual with a gentle disposition…” and during counselling “… expressed strong principles of family, morality, community and spirituality. In this regard he has been attending a local church community to help salve his spirit.”[45] These observations are consistent with the applicant’s presentation during the Tribunal hearing and with the applicant’s evidence that attending church regularly has reinforced the importance to him of being humble and helping others which in the Tribunal’s view will contribute positively to the applicant’s commitment beyond the criminal justice process to refrain from consuming alcohol and to refrain from harming others. The applicant’s evidence is he has attended church weekly since being released from custody in January 2018 and the Tribunal accepts this evidence.
[45] Tribunal file, folio 77.
119. However, the Tribunal remains concerned that the applicant does not appear on his evidence to the Tribunal to fully understand what caused him to lose control on 25 November 2018 which resulted in, amongst other things, the cancellation of his Subclass 444 visa.
120. The Tribunal finds this consideration supports the cancellation of the applicant’s Subclass 444 visa and the Tribunal gives this consideration the greatest weight.
The past and present behaviour of the applicant towards the department
121. The delegate noted the applicant participated in the visa cancellation process by providing a response to the NOICC within the prescribed timeframe and found that there is no evidence of past or present adverse behaviour by the applicant toward with the Department and gave this consideration some weight in the applicant’s favour. The Tribunal invited the applicant to comment on this consideration. The applicant told the Tribunal he had not had and did not have any issues with the Department.
122. The Tribunal finds this consideration weighs against the cancellation of the applicant’s Subclass 444 visa and the Tribunal gives this consideration some weight.
Whether there are persons in Australia whose visas would, or may, be cancelled under s140
123. The applicant told the Tribunal that there are no persons in Australia whose visa would, or may, be cancelled under s.140 of the Act. The Tribunal finds this consideration is neutral and does not weigh in support of or against the cancellation of the applicant’s Subclass 444 visa.
Whether there are mandatory legal consequences to a cancellation decision
124. The delegate found that the ongoing cancellation of the applicant’s visa would mean that the applicant is an unlawful noncitizen which may make him liable to be detained under s.189 of the Act and be removed from Australia under s.198 of the Act if he does not voluntarily depart Australia.
125. The delegate also found that having had a visa cancelled under s.116 will mean that the applicant will become subject to s.48 of the Act which means the applicant will have limited options to apply for visas if he remains onshore and will be subject to a three year exclusion period if applying for visas offshore unless the applicant can show he meets Public Interest Criterion 4013.
126. The delegate also stated:
The visa holder has a pending Migrant – skilled visa application before the Department. Cancellation of the visa holder’s Special Category visa will not of itself, prevent a positive outcome of that application. The visa holder may be entitled to apply for a Bridging E (subclass 050) visa in order to remain in Australia pending the outcome of his Migrant – skilled visa application.[46]
[46] Tribunal file, folio 1.

127. There is no information before the Tribunal on the current status of the applicant’s application for a Migrant – skilled visa and the Tribunal makes no adverse finding against the applicant in that regard. If that application is ongoing then the ongoing cancellation of the applicant’s Subclass 444 visa will not prevent the applicant’s application for the Migrant – skilled visa being resolved in his favour. If the Migrant – skilled visa was granted to the applicant he would not be required to depart Australia even if his Subclass 444 remained cancelled. In the meantime the applicant holds a Bridging E visa which would allow him to remain in Australia until his application for a Migrant – skilled visa is resolved.
128. If the applicant’s application for a Migrant – skilled visa is not ongoing then the cancellation of his Subclass 444 may result in the applicant being required to depart Australia, subject to any appeal or other rights exercised by the applicant.
129. After the applicant had been granted a Bridging E visa the applicant’s representative submitted to the Tribunal:
12. If the Tribunal does not set aside the visa cancellation decision, Mr Laki’s Bridging E visa will expire and Mr Laki will very likely be detained. It is submitted that this should weigh in favour of reinstating Mr Laki’s visa.[47]
[47] Applicant’s Further Outline of Submissions dated 8 April 2019, Tribunal file, folios 93 and 94 at folio 93.

130. The Tribunal accepts this submission. The Tribunal invited the applicant to comment on whether there are mandatory legal consequences to the cancellation of his visa. The applicant did not make any comment on this consideration.
131. The Tribunal finds that there are the potential mandatory legal consequences as set out above that may arise from the ongoing cancellation of the applicant’s visa.
132. The Tribunal finds this consideration weighs against the cancellation of the applicant’s Subclass 444 visa and the Tribunal gives this consideration some weight.
Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation
133. The applicant told the Tribunal that his only child is in New Zealand which means the applicant does not have any children in Australia. The applicant also told the Tribunal that he has not applied for protection nor made claims of being in need of protection.

134. The Tribunal finds that there is no evidence before it to indicate that the removal of the applicant from Australia, should that be necessary as a result of the ongoing cancellation of his Subclass 444 visa, would place Australia in breach of any obligations it has arising under relevant international agreements.
135. The Tribunal finds this consideration is neutral and does not weigh in support of or against the cancellation of the applicant’s Subclass 444 visa.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
136. The applicant’s visa is a temporary visa. The Tribunal finds this consideration is neutral and does not weigh in support of or against the cancellation of the applicant’s Subclass 444 visa.
Any other relevant matter
137. Toward the end of the Tribunal hearing the applicant’s representative made helpful closing submissions that assisted the Tribunal in its consideration of the applicant’s application. The matters raised in those submissions have been addressed above.
138. Toward the end of the Tribunal hearing the Tribunal asked the applicant whether there was anything else relevant to his application and circumstances that he wished to tell the Tribunal. The applicant told the Tribunal there was not.
139. The Tribunal notes that the applicant has held a Bridging E visa since 14 March 2019. There is no information before the Tribunal of there being any adverse immigration or other issues involving the applicant since he has resumed living in the community. This weighs against the cancellation of the applicant’s Subclass 444 visa and the Tribunal gives this consideration considerable weight.
Conclusion
140. The Tribunal has carefully considered all of the oral and written evidence provided by and on behalf of the applicant in weighing the discretionary considerations that weigh in support of the ongoing cancellation of the applicant’s Subclass 444 visa and weigh against the cancellation of that visa.
141. The considerations that weigh in favour of the cancellation of the applicant’s Subclass 444 visa are that the applicant does not overall have a compelling reason to stay in Australia, the circumstances in which the applicant’s visa was cancelled - which the Tribunal gave the greatest weight - and the ameliorating factors in relation to the hardship the ongoing cancellation of the applicant’s Subclass 444 visa will cause.
142. The circumstances of cancellation include:
·The applicant has pleaded guilty to crimes of violence against four people on one night, which involved acts of domestic violence against his then de facto partner and punching three other people to the head in what were random and unprovoked attacks when the applicant was intoxicated;
·The applicant has pleaded guilty to seven criminal offences overall, including the indictable offence of aggravated burglary which cannot be dealt with summarily;
·The Tribunal found on the applicant’s evidence that his criminal behaviour was not one off behaviour; and
·The Tribunal remains concerned that the applicant does not appear to have yet gained full insight into the causes of his offending raising the possibility, but not in the Tribunal’s view a probability, the applicant could lose control again and harm others in the future.

143. The ameliorating factors to the hardship that the applicant or his family will experience from the cancellation of his visa are:
·He is not unfamiliar with New Zealand having lived there most recently from July 2014 to March 2015;
·His young daughter lives in New Zealand and this is a significant relationship in the applicant’s life;
·The evidence of the financial support the applicant provides for his daughter, his biological parents and his adoptive parents was limited in relation to both the amount of such support and for how long such support has been provided causing the Tribunal to give this evidence less weight than it would have if more detailed documentary evidence of this financial support was made available to the Tribunal; and
·The evidence of the applicant’s employment prospects in the fishing industry and more generally is based on his experience in New Zealand four years ago at a time when he was a deckhand as opposed to now being a licenced ship’s master.

144. The considerations that weigh against the cancellation of the applicant’s visa are:
The extent of compliance with visa conditions
·While no conditions attach to a Subclass 444 visa, the applicant has held a Bridging E visa since 14 March 2019 which is subject to four express conditions and there is no evidence before the Tribunal that the applicant has breached any of these conditions.

Degree of hardships
·The risk the applicant may not be able to find work in New Zealand and the financial, emotional and psychological hardship this is likely to cause to the applicant, noting the applicant’s concerns are based on relatively recent experience from 2014 - 2015;
·The financial hardship that will be caused to the applicant and his extended family, particularly for his daughter, if he cannot find meaningful employment in New Zealand;
·The psychological and emotional hardship having to relocate to New Zealand will cause the applicant and his family in Australia given his residency in Australia since 2008 and his closeness to his family in Australia; and
·The hardship the applicant will experience through the loss of long-term employment in Australia in a position with considerable management responsibilities and with a supportive employer in a field the applicant described he is passionate about and where his employer has described him as a “great asset”.

Past and present behaviour toward the Department
·The delegate noted and the Tribunal accepted that there is no information to indicate that the applicant has behaved adversely toward the Department.

Mandatory legal consequences
·The Tribunal accepts there will be some mandatory legal consequences for the applicant. He will at the very least be subject to the limitation set out in s.48 of the Act of not being able to apply for certain visas for three years unless can meet Public Interest Criteria 4013.
·The Tribunal also accepts that the applicant may be detained under s.189 of the Act and deported under s.198 of the Act if his Subclass 444 visa remains cancelled.

Any other relevant matter
·The applicant has held a Bridging E visa since 14 March 2019 and there is no information before the Tribunal of there being any adverse immigration or other issues involving the applicant since he has resumed living in the Australian community.

145. The Tribunal finds the remaining discretionary considerations are neutral and weigh neither in support of or against the ongoing cancellation of the applicant’s Subclass 444 visa.
146. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
147. The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.
Michael Ison
Senior Member

[2019] AATA 1718

6 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction