Limu Tuiletufuga (Migration)

[2018] AATA 4810

Limu Tuiletufuga (Migration) [2018] AATA 4810 (23 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tiafau Limu Tuiletufuga

CASE NUMBER:  1809385

HOME AFFAIRS REFERENCE(S):           N/A

MEMBER:Ann Duffield

DATE:23 July 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 23 July 2018 at 8:44am

CATCHWORDS
Migration – Cancellation – Special Category (Temporary) (Class TY) – Subclass 444 visa – Whether the applicant is or may be, or would or might be, a risk to the Australian community or a segment of the Australian community – Charged with criminal offences – Grounds for cancellation exist – Decision affirmed

LEGISLATION
Migration Act 1958, ss 116, 198, 359A

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 29 March 2018 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’s continued presence 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. The applicant has been charged with rape, indecent treatment of children under 16 by a guardian/carer; indecent treatment of children under 12 years and one charge of indecent treatment of children under 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 17 July 2018 to give evidence and present arguments. The Tribunal received no other evidence from any other individuals at the hearing and the applicant was unrepresented.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   BACKGROUND

5. The applicant is a citizen of New Zealand born on 10 December 1964 (54 years old). He first arrived in Australia on 26 March 2005. He is married and has three biological children and three step-children in Australia.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

   Does the ground for cancellation exist?

   s.116(1)(e) - risk to Australian community or individual

7. 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].

8. 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.

9. The Tribunal issued a summons to the Queensland Police Service seeking the applicant’s person history. This was received and provided to the applicant under the provisions of s.359A of the Migration Act. The Tribunal informed the applicant that the information contained in those documents would, depending upon his response, be the reason or part of the reason for affirming the decision under review.

10. The applicant did not respond to the Tribunal’s letter.

11. The applicant was charged with a  number of offences on 16 March 2018 involving minor children in his care between 2011 and 2018; specifically, the following:

    a.Rape between 1 January 2011 and 1 January 2013

    b.Indecent treatment of children under 16 lineal decent/guardian/carer between 1 January 2011 and 1 January 2013

    c.Indecent treatment of children under 16 lineal decent/guardian/carer between 1 January 2018 and 15 March 2018

    d.Indecent treatment of children under 16 lineal decent/guardian/carer between 1 January 2018 and 15 March 2018

    e.Indecent treatment of children under 16 lineal decent/guardian/carer between 1 January 2013 and I January 2015

    f.Indecent treatment of children under 16 lineal decent/guardian/carer between 1 January 2015 and 1 January 2017

    g.Indecent treatment of children under 16 lineal decent/guardian/carer between 1 January 2015 and 1 January 2017

    h.Indecent treatment of children under 16 lineal decent/guardian/carer between 1 January 2015 and 1 January 2017

    i.Indecent treatment of children under 16 lineal decent/guardian/carer between 1 January 2017 and 20 January 2018

    j.Indecent treatment of children under 16 child under 12 years lineal decent/guardian/carer between1 January 2014 and 1 January 2016

    k.Indecent treatment of children under 16 between 1 September 2016 and 1 January 2018

12. These incidents related to two separate step daughters living in the household of the applicant.

13. The applicant told the delegate he did not believe he was guilty and that everybody makes mistakes and learns from them. He claims that he has a wife and 3 children to look after who rely on him to provide for them. He claims he has nothing to go back to in New Zealand.

14. At the Tribunal hearing the applicant was advised it was not the role of the Tribunal to form a judgement about his guilt or innocence on the matters for which he has been charged. The Tribunal advised him that he need not answer any questions or say anything that might incriminate him. The Tribunal advised the applicant that it had the power to decide to cancel his visa on the basis of the charges alone. The Tribunal told the applicant that it considered the charges to be particularly serious and if he was found to be guilty, in all likelihood he would be sentenced to a lengthy prison term. The applicant indicated that he understood.

15. The Tribunal asked the applicant if there was anything he wanted to say about his cancellation and he did not. He said that he needed to stay in Australia to look after his family. The Tribunal put to him that it found the charges against him to be serious and considered that they did indeed constitute grounds to cancel his visa. The applicant did not respond.

16. The Tribunal has considered the extensive and serious nature of the charges against the applicant and the absence of evidence supporting him, including from his wife. On the basis of the evidence before it, the Tribunal has formed a view that the applicant poses a risk to the safety of the Australian community or a segment of the Australian community.

17. 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

18. 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’.

19. The Tribunal put to the applicant the nature of the matters that it could consider in deciding whether it should proceed to affirm the decision to cancel his visa including 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 extent of compliance with visa conditions, the degree of hardship that may be caused (financial, psychological, emotional or other hardship),circumstances in which ground of cancellation arose or any other matters that the applicant or the Tribunal considered relevant.

20. The applicant told the Tribunal that prior to his arrest he was living with his wife and six children. Three of whom were his biological children and three of whom were his wife’s children from a previous relationship. Two of those step children are the ones who have made the allegations against him. Asked if there could be any reason or reasons that the children would make such false allegations against him the applicant said that it was because they didn’t like him. He told the Tribunal that at some stage towards the end of last year he told the eldest girl that she should de-friend most of her Facebook friends and also took her phone away from her. He said that she didn’t like that.

21. The Tribunal asked the applicant why he had not provided any letters of support or phone numbers of people that the Tribunal may be able to speak to. The applicant said that he didn’t have his wife’s number as he had a bad memory. He said that he didn’t have the phone numbers of anyone who would support him. The Tribunal asked if he had sought letters of support and he told the Tribunal that it was his understanding that his wife had sent one in via email the previous day. The Tribunal informed him that it had not received anything and told him that he had until COB on Friday 20 July to provide it with any information he thought may support his case. The Tribunal received no further evidence from the applicant prior to making its decision at 8.45am 23 July 2018.

22. Asked when he last saw his family he told the Tribunal that his wife and two youngest children (aged 2 and 4 years) visited him when he was in Brisbane at the beginning of the year. He says he only saw them once and has only spoken to his wife on the phone since then. The Tribunal asked the applicant what his wife thought of the reasons why his visa was cancelled and he said that they never spoke about it. He said that he thought that she knew the reasons but that they never talked about it.

23. The Tribunal asked the applicant if his wife and children would travel to New Zealand with him in the event that he was removed from Australia and he said that he believed they would come with him. He said he had extended family in New Zealand and one sibling. He did not know if he would be able to find work easily or at all.

24. The applicant told the Tribunal that it would be difficult to leave Australia as his children were born here and were settled. The Tribunal notes that they are under school age. The applicant claimed that they would have better opportunities in Australia and a better education.

25. The Tribunal has considered the circumstances in which the ground of cancellation arose. They include charges of rape and indecent treatment of two of the applicant’s step-daughters. These are serious and heinous offences if true. The applicant told the Tribunal that the charges were fabricated because he denied the girls’ access to Facebook and their phone. He did not claim there was any misunderstanding about any incidents only that they were fabricated.

26. The Tribunal accepts that the applicant’s purpose for remaining in Australia is to live where he has lived for the past 12 years with his family. However he has also claimed that his wife and youngest children would travel to New Zealand and live with him there. The Tribunal does not believe that this would cause the applicant or his family any particular hardship such that it would cause the Tribunal to consider not cancelling his visa.

27. The Tribunal has considered the rights of the applicant’s children and accepts that they were born and have grown up in Australia. However they are under school age and in the Tribunal’s mind would not have any particular difficulty adjusting to life in New Zealand with their parents.

28. The Tribunal has also considered that the consequences of the applicant’s visa remaining cancelled would mean that he would remain in detention until his trial is concluded or he is deported under s.198 of the Migration Act. It is difficult to speculate what the applicant or the department would do in these circumstances. What is certain, however, is that there would be limited opportunities for the applicant to be able to return to Australia.

    Conclusion

29. Having regard to all of the material before the Tribunal and weighing those matters carefully, the Tribunal concludes that it will not exercise its discretion to reinstate the applicant’s visa. The Tribunal has given significant weight to the seriousness and nature of the offending and is not satisfied that the applicant would not be a risk to the Australian community or segment of the Australian community if he remains in Australia.

30. Against this, the Tribunal has had regard to the rights of the applicant’s children and the potential mandatory legal consequences arising from this cancellation.

    CONCLUSION

31. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

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

    Ann Duffield
    Senior Member