Lefoe (Migration)

[2021] AATA 2703

Lefoe (Migration) [2021] AATA 2703 (11 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shahn Anthony Daniel Lefoe

CASE NUMBER:  1931788

HOME AFFAIRS REFERENCE(S):          BCC2019/5057570

MEMBER:Denis Dragovic

DATE:11 May 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 11 May 2021 at 1:43pm

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – ground for cancellation – risk to safety of Australian community or individual – pending charges – sexual assault – sexual penetration of a child under the age of 16 – requests for postponement of hearing – released on bail by a magistrate – severe lack of judgement – consideration of discretion – mandatory legal consequences – ‘behaviour concern’ – decision under review affirmed

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 2A
Migration Act 1958 (Cth), ss 116

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 October 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 444 (Special Category) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e)(i) on the basis that the applicant has been charged with one count of sexual assault and six counts of sexual penetration of a child under the age of 16. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 19 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s father, Daniel Lefoe Senior.

4. 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

5. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(e)(i). 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.

   Background facts

6. The applicant is a New Zealand citizen who arrived in Australia on 25 September 2018 as a holder of a Subclass 444 Special Category visa.

7. Special Category (Subclass 444) visas allow New Zealand citizens to travel to and stay in Australia. The relevant legislation governing Subclass 444 visas is s.32 of the Act and r.5.15A of the Migration Regulations 1994 (the Regulations).

8. On 15 October 2019 the applicant was notified by the Department through a notice of intention to consider cancellation (NOICC) that his visa was being considered for cancellation under s.116(1)(e)(i). This was on the basis that the Department had been notified that the applicant had been charged with ‘seven counts of sexual penetration of a child under the age of 16 years’ on 7 October 2019.

9. The visa was cancelled by the Department on 30 October 2019. The applicant appealed this decision to the Tribunal on 8 November 2019. The Tribunal invited the applicant to a hearing, first on 30 January 2020 and subsequently on three separate occasions. Each time the applicant requested a postponement due to the importance of the associated court matter. As the applicant was in immigration detention during this period and was not a risk to the community, I granted the postponement.

10. On 16 April 2021 the Tribunal received a fifth request for postponement as the court matter was once again postponed. Noting the objectives of the Tribunal contained in s.2A of the Administrative Appeals Tribunal Act1975 and as the nature of the s.116(1)(e)(i) cancellation is not dependent upon the findings of a court, as explained further below at [53]-[54], I proceeded to hear the case on 19 April 2021.

    Does the ground for cancellation exist?

11. A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

12. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

13. According to the NOICC the applicant was charged with seven counts of sexual penetration of a child under the age of 16. The alleged incident occurred at a family function on 3 August 2019. The applicant is alleged to have approached the victim and grabbed her on the vagina, over her clothing. She is claimed to have said to him not to touch her. The applicant reportedly told the victim to run and then he is claimed to have led her to a secluded reserve where he removed her clothing and engaged in sex acts. Following the incident, he is reported to have told the victim to go home first so that they are not seen together. The alleged victim is claimed to have then disclosed to family members that she had been raped. The applicant was subsequently arrested on 6 August 2019 by police. It is stated in the NOICC that the applicant admitted having sex with the alleged victim but that he claimed that he thought that she was 21 years old.

14. I noted that this information was available from the NOICC but before me was also a more detailed summary of offence, which provides a more nuanced and favourable insight into the events including that based upon a recording taken by the alleged victim there was no coercive force applied by the applicant.

15. I explained to the applicant that it is not the role of the Tribunal to determine the guilt or innocence of the applicant based on the events of that day but rather to consider whether he is or may be a risk to the Australian community. As this is a forward looking test, I put to him that as he had already once confused a 12-year-old for a 21-year-old how could I be convinced that he would not do so again. The applicant said that he would not and explained that it had occurred only because she asked him for a smoke, and she said that she was 21 and was allowed to smoke. I explained that even if I was to accept that there was consensual sex, or as he claimed that she had led him to have sex, it is illegal to have sexual intercourse with a minor.

16. I put to him that I found it hard to understand how someone could confuse a 12-year-old for a 21-year-old even if she was a mature 12-year-old. The applicant continued to maintain that at the time he believed her to be 21 years old. He said that she acted as a sexual person and looked 21 years old, he said that she acted like a mature 21-year-old and dressed as one. He said that it didn’t cross his mind that she could be younger because he is the type of person that believes what people say.

17. The applicant was considered for bail by a magistrate and was released on bail. The obligations imposed on him included reporting to Werribee Police Station on a daily basis, surrendering his passport and not attending any points of international departure. While I accept that a Magistrate considered the risk to the community the applicant posed, I note that the test is different and as such place little weight on this outcome, which was arrived at by a different decision maker in a different jurisdiction.

18. The applicant’s father gave evidence that his son has not done anything such as what his son has been charged with, he said that his son has been raised in a family with good morals and his character is “A+”.

19. While the applicant appeared remorseful at the hearing and acknowledged his mistakes, and noting the magistrates views and that of his father, it is concerning that he did not have the presence of mind to consider whether the child who had asked for a cigarette and claimed to be 21 years old was lying and was younger than she claimed. That she was 12 years old at the time would suggest that the applicant has a significant inability to bring his judgement to bear over his impulses. The applicant has learned a lesson in this instance, but his extremely poor judgement is cause for concern. Was this simply a minor example of poor judgement such as crossing the road where one should not, his lapse of judgement would not meet the test of ‘is or may be’ a risk, but that it could be so poor that he had sex with a 12 year old leads me to find that on the basis of his judgement failing again in the future, whether in a sexual nature or regarding other general societal aspects of life in Australia, he is or may be a risk to the health, safety or good order of the Australian community and as such I find 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

20. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel and stay in Australia; whether the visa holder has a compelling need to travel to or remain in Australia

21. In a written response to the NOICC the applicant explained that he had three reasons to be in Australia. The first of these reasons is that he wanted to be close to his immediate family including his father and brothers as he doesn’t have many close family members in New Zealand; the second reason is that one of his brothers was in a serious car accident leaving him with brain and physical injuries, and for that reason he moved to Australia to be closer to him and to provide support; and the third reason is that he wanted to stay for work reasons.

22. At the hearing he explained that one of his brothers is involved in the building industry and that he wanted to help him. The applicant began an apprenticeship to become a builder in the same company that his brother works.

23. In New Zealand the applicant had employment working for a company that planted Manuka trees. The company gives free trees to farmers and then the company and the farmer split the honey. His role was to plant and maintain the trees as well as other duties.

24. Regarding his brother’s car crash, the applicant couldn’t recall the exact date of it, but said that it was a couple of years before he arrived in Australia. As of the date of the hearing, the applicant described his brother as having a limp and a lingering brain injury. He also said that his brother goes back to NZ ‘every so often’ to get a check-up. He is not currently working. The applicant said that his brother used to go to the gym and sauna with him but since he has been in detention his brother doesn’t go out much and instead just eats and goes to his room. His father doesn’t have the time to support the applicant’s brother as he works, as does his stepmother. The applicant’s injured brother is currently living with his father and the stepmother.

25. The applicant’s reasons for travelling to Australia are coherent. They are based upon family ties, which he clearly places considerable weight on, as well as career opportunities. I give some weight against exercising the discretion to cancel the applicant’s visa for the reasons that led the applicant to come to Australia.

    The extent of compliance with visa conditions

26. There is no evidence before the Tribunal that suggests that the applicant has not complied with his visa conditions. As this is a bare minimum expectation of all visa holders, I give this little weight against exercising the discretion to cancel the applicant’s visa.

    Degree of hardship that may be caused

27. His other brother, who used to live with the family, is moving out of the family home, leaving only his father, stepmother and injured brother living in the same location.

28. The applicant claims that the hardship that will be created as a result of affirming the cancellation of his visa includes hardship to his injured brother who has benefited from the applicant’s support and a diminishment in his contributions to household costs where his family live (currently this includes his injured brother, father and stepmother).

29. I noted at the hearing that the applicant has been in immigration detention for nearly two years and his family have been able to continue to cover their costs. The applicant’s father is ‘doing it hard’ according to the applicant because the applicant is unable to contribute to the costs of running the household. He said that they are scraping by without him and as a result his stepmother has had to find full time work. The applicant’s father who was a witness said that they did manage to scrape by in the absence of his son.

30. The applicant also claimed to have supported his brother’s rehabilitation prior to being remanded and then going into detention. The applicant’s injured brother has not recovered, and the applicant believes that his absence has contributed to this.

31. According to the evidence provided by the applicant at the hearing, he has four children, two to his current partner and two to his ex-partner. His current partner lives on her family’s farm in New Zealand with their two children who are eight years old and six years old. She has an income that arises from working on the neighbouring farm milking cows. On her farm there are horses and sheep. The applicant claimed that there are between three and five horses that are some of the best in New Zealand. The horses are for polocrosse. She is currently on the New Zealand polocrosse team. The children go to school in New Zealand and are doing well. The applicant’s partner and children returned to New Zealand so as to play polocrosse as well as to do what the applicant described as other things they like to do, such as being on the farm rather than sitting around waiting for the applicant to be released from detention.

32. The applicant also has two children from an ex-partner. The two children are 12 and 10 years old. They also live in New Zealand. Their lives have always been in New Zealand. The children are attending school. During holidays the children of his ex-partner spend time with the children of his current partner. According to the applicant the four children get along well.

33. I asked how his current partner reacted to him having sex with a 12-year-old. He said that she wanted to see what the outcome of the court case revealed. He said that she cared that he had sex with someone else, but she still wants to be with him. He confirmed that they are still together but if he goes to jail, he said that she may not want to continue the relationship.

34. The applicant claims that his partner and children will return to Australia if he is not convicted and is allowed to stay in Australia. I asked why he would want to stay in Australia. He responded that it is because of his father who has diabetes and because of his injured brother. He explained that his children had attended an Australian school for one year.

35. The applicant’s mother, who lives in New Zealand, has cancer. The applicant stated that she receives support from her children who are living in New Zealand. I find that the applicant’s mother would not face hardship if the applicant was to return to New Zealand.

36. The applicant said that he can’t pursue his preferred career of working in the construction industry in New Zealand as it doesn’t pay well and that he will have difficulty finding work in the area where his partner lives. He said that he would suffer emotionally for the reason that he is the eldest son and has an obligation to help his family who need him in Melbourne. I accept that the applicant will face some degree of hardship arising from living in New Zealand rather than Australia. The hardship will extend to a lesser paying career, tougher job opportunities and personal guilt that will weigh heavily on him.

37. I accept that the applicant’s father, two brothers and stepmother who live in Australia will suffer some degree of hardship, including that his injured brother will be without the applicant who had in the past taken him to the gym and sauna and helped with his rehabilitation. Similarly, they will be without the extra income and support that he provided in the past. His father is 51 years old and has diabetes. The applicant said that he has other illnesses that he does not speak of including broken ribs that were never properly treated. While there will be a degree of hardship, they have been in this situation for the past two years. The family is able to pay expenses, as time has proven through the absence of the applicant for two years. I accept that the level of support the family members would receive would be higher if the applicant was available to them and as such accept that some ongoing hardship would persist to the father and injured brother.

38. I have also considered the hardship to his current partner, ex-partner and the four children of the two relationships. In both instances the families live in New Zealand. They are established there. The children go to school and the women have access to income. While the applicant has expressed a desire for his partner and two children to return to Australia and live with him if he was not convicted, this appears to be a preferential situation for the applicant more so than the other family members. While it may be that the children enjoy Australia, or his partner finds polocrosse events to play here, there is no clear evidence that any hardship arises from them remaining in New Zealand alongside the applicant.

39. Having considered his personal situation, his family in Melbourne, his partner, ex-partner and their children in New Zealand, I give little weight against exercising the discretion to cancel the applicant’s visa for the reasons of the degree of hardship that may be caused.

    Circumstances in which ground of cancellation arose

40. The applicant has claimed that he was convinced by the applicant that she was 21 years old. He claims that she was a sexual person who dressed and acted maturely. He claims that his relationship with her was consensual.

41. I give the applicant the benefit of the doubt and accept that the alleged victim appeared as he perceived her and that she acted the way he recounted, but as noted above, this leads to a finding of a severe lack of judgement.

42. The father said that his son has never before done anything such as what his son has been charged with; he said that his son has been raised in a family with good morals and his character is A+.

43. I do not accept that the exceptionally poor judgement of an adult can be considered as a mitigating factor when considering the circumstances in which the ground for cancellation arose and as such, I place little weight against exercising discretion to cancel the applicant’s visa.

    Past and present behaviour of the visa holder towards the Department

1. There is no evidence that the applicant has not being anything but forthright and compliant towards the Department. As this is a bare minimum expectation of all visa holders, I give little weight against exercising discretion to cancel the applicant’s visa.

   Whether there would be consequential cancellations under s.140

2. There are no consequential cancellations that would arise from the cancellation of the applicant’s visa. As such I give little weight against exercising discretion to cancel the applicant’s visa.

   Whether there are mandatory legal consequences

3. The cancellation of the applicant’s Subclass 444 visa will lead to the applicant remaining in detention until such time as his criminal matters are resolved and/or the Department grants the applicant a criminal justice visa. Depending upon the outcome of the pending court matter, the applicant may find it difficult to return to Australia as s.32(2)(a)(ii) of the Act reads:

   (2)  A criterion for a special category visa is that the Minister is satisfied the applicant is:

   (a)  a non-citizen:

   (ii)  is neither a behaviour concern non-citizen nor a health concern non-citizen; or

4. ‘Behaviour concern’ is defined in s.5(1) as a person who has been ‘convicted of a crime and sentenced to death or imprisonment, for at least one year; or has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year…’. Whether the applicant is deemed a behaviour concern will hinge on the outcome of his forthcoming court case.

5. Separately, but in addition, if the visa is cancelled the applicant would have to wait three years before applying for a new visa to Australia due to public interest criteria 4013. I discussed this with the applicant and specifically how it prevents him from making a valid application for a three-year period from the date of the cancellation. The applicant’s cancellation was two years ago and as such the consequence would be a one-year wait until the three-year period passes. The applicant said that under such circumstances he may find it difficult to find work in the area where his partner lives.

6. We also discussed the consequence of cancelling his visa if he was to be convicted. I put to him that if he is convicted for a term of longer than 12 months, as noted above, this would lead to the applicant likely not meeting s.32(2)(ii) for the reason of being a behaviour concern. I asked the applicant what the consequences to him would be of never being able to return to Australia. He said that it would play with his mind; as the eldest he is obliged to help his family. He noted that his father is sick; he has diabetes but also has broken ribs that he has never had treated.

7. The Tribunal received evidence from the applicant’s father. He said that the impact of being barred from returning to Australia would include his brother missing him. I asked whether the father would require any support due to his health, but he did not indicate any specific support other than saying that he is not getting younger and that it would be great to have his son in Australia. The witness said that it wouldn’t be a bad thing if his son was closer to his children in New Zealand but if he was in Australia, he could still provide for them and fly back when he needed to. The father said that he has been in Australia for nearly eight years and has no intention of returning to New Zealand.

8. Other mandatory legal consequences that the applicant faces include being liable for detention and removal from Australia if he was not to depart voluntarily and that he would be barred from applying for certain visas.

9. I have considered the impact upon the applicant of the above mandatory legal consequences arising from both a conviction of greater than 12 months and one that does not trigger a behaviour concern.

10. If there was an outcome to his court proceedings such that there was no future potential behaviour concern and the visa was cancelled, the applicant would be required to remain in New Zealand for about a year before applying for a new visa. I give this little weight against exercising the discretion to cancel the visa for the reason that his children are all in New Zealand as is his partner. The family members in Melbourne have proven themselves capable of continuing to live without the applicant’s presence.

11. In the alternative, if the outcome of the court case was such that the applicant would face a sentence that would raise a behavioural concern in future visa applications, the outcome would be longer term separation from his family in Melbourne and would weigh more heavily against affirming the cancellation of the applicant’s visa. I place some weight against exercising the discretion to cancel the visa as in this scenario there are long term consequences, but these consequences are not debilitating in that: the applicant’s family could travel back to visit the applicant as the applicant’s injured brother does to undergo treatment according to the evidence provided by the applicant; he could pursue his preferred career in the construction industry in New Zealand, albeit with less pay; and his partner could remain with him in New Zealand as she would have no imperative to move to Australia without him. As this is the more favourable outcome for the applicant, from the perspective of considerations for this visa application, I adopt this weighting.

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

12. In considering Australia’s non-refoulment obligations I find that if the applicant was to be returned to New Zealand, Australia would not be in breach of its international obligations as the applicant has not lodged a protection application nor has he expressed a reason to fear return to New Zealand.

13. I have also considered the Convention on the Rights of the Child. In this instance the applicant does not have children in Australia. They are all in New Zealand. They all have substantial ties to New Zealand with only two attending one year of schooling in Australia. They have family in New Zealand in the form of half-siblings and the applicant’s mother.

14. As the applicant would be reunited with his children and the children would have the opportunity to maintain the family and given there is no concern of refoulement nor of any other international obligation being breached, I place no weight when considering Australia’s international obligations.

    Any other relevant matters

15. The applicant has been in Australia for nearly three years, of which two years were spent in immigration detention. I accept that the applicant established some social and emotional ties to Australia during the one year that the applicant was in the community. He had begun an apprenticeship during this period but was unable to continue with it while in detention. I place little weight against affirming the cancellation of the applicant’s visa based upon the ties he has established and the effort he has made to beginning a new career path.

16. I note that the applicant has admitted to having sex with a 12-year-old. Although he claims that it was consensual, the alleged victim is a minor. As noted above, this is an egregious misjudgement on the part of the applicant and in addition, by acting as he admits that he did, he has breached community expectations of acceptable behaviour that also carries consequences. His behaviour will have had an impact on the alleged victim as evidenced by the existence of laws that protect minors and his own admission that he wouldn’t have sex with a minor in the future. I also find that such an act as was committed by the applicant will have lingering impacts including instilling fear in individuals and breaking down trust in society. It is difficult to measure the impact to each but collectively I find that it is substantial. As such I place substantial weight in favour of cancellation of the applicant’s visa.

17. In addition, I give considerable weight in favour of cancellation of the applicant’s visa for the reason of the risk that his poor judgement may once again lead to an act that would be in breach of the law or community expectations as described in the first section of this decision when considering the grounds of cancellation.

18. Considering the circumstances as a whole, noting the weightings given to each of the factors, I conclude that the visa should be cancelled.

    DECISION

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

    Denis Dragovic
    Senior Member