Laki (Migration) - [2019] AATA 1718

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Laki (Migration)

Details

AGLC: Laki (Migration) [2019] AATA 1718
Case: [2019] AATA 1718
Decision Date: 6 May 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Laki, an applicant for review of a decision to cancel his Subclass 444 (Special Category) visa. The dispute arose from the Minister's decision to cancel the visa on the ground that the applicant's presence in Australia posed a risk to the safety or good order of the Australian community.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e)(i) of the Migration Act 1958 (Cth) was made out, specifically whether the applicant's presence in Australia "may be" a risk to the health, safety, or good order of the Australian community or a segment of it. If this ground was established, the Tribunal then had to consider whether to exercise its discretion to affirm the cancellation, taking into account all relevant circumstances.

The Tribunal reasoned that the term "risk" under section 116(1)(e) does not require certainty but rather the possibility of a deleterious or harmful event occurring in the future. In this instance, the applicant had been charged with eight criminal offences and had pleaded guilty. While acknowledging the applicant's remorse, strong family and employment ties to Australia, and his desire to support his extended family, the Tribunal found that the seriousness of the charges, coupled with a lack of full insight into the causes of his offending, meant that the applicant "may be" a risk to the safety or good order of the Australian community. Consequently, the Tribunal was satisfied that the ground for cancellation existed.

The Tribunal affirmed the decision to cancel the applicant's visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.