Macdonald (Migration)

[2022] AATA 4772

Macdonald (Migration) [2022] AATA 4772 (21 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chi-Ang Justis Makesha Macdonald

CASE NUMBER:  2204374

HOME AFFAIRS REFERENCE(S):          BCC2018/4561635

MEMBER:Kira Raif

DATE:21 October 2022

PLACE OF DECISION:  Sydney

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

Statement made on 21 October 2022 at 1:41pm

CATCHWORDS  

MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – scope of Tribunal’s jurisdiction – non-citizen – ‘aliens’ power – Aboriginal descent – ground for cancellation – risk to safety of Australian community or individual – criminal history – history of drug and alcohol abuse – risk of further offending – consideration of discretion – presence of family in Australia – degree of hardship – decision under review affirmed

LEGISLATION 

Australian Constitution, s 51(xix)

Migration Act 1958 (Cth), s 116

CASES

Gong v MIBP [2016] FCCA 561

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 8 March 2022 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 (Cth) (the Act).

2. The applicant is a national of New Zealand, born in January 1985. He was granted the Special Category visa in October 2004. In January 2019 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that there are grounds for cancelling his visa under s. 116(1)(e) of the Act. It appears the applicant did not respond to the NOICC and his visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 30 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother Ms Crawford and his father Mr McDonald, as well as Aboriginal elder Mr Noa. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Scope of Tribunal’s jurisdiction

4. In his written submission to the Tribunal the applicant states that he is of Aboriginal descent (the applicant provided multiple documents referring to his Aboriginal descent) and he claims to be outside the ‘aliens’ power in s. 51(xix) of the Constitution. The applicant submits that he intends to commence court proceedings to obtain the declaration but setting aside the cancellation of his visa would save him and the taxpayers the expense of court proceedings.

5. The Tribunal acknowledges the applicant’s ability to seek a declaration from the court, which may effectively lead to his release from detention, but Constitutional determinations are not within the ambit of powers of this Tribunal. Neither is a declaration of the applicant’s Aboriginality. The Tribunal’s jurisdiction under the Migration Act is in relation to non-citizens and whether or not the applicant is an alien falling within the ambit of s51(xix) of the Constitution is not a matter which this Tribunal is able to determine. The Tribunal cannot determine whether the applicant’s detention is lawful and it is for the Court to make that declaration.

6. The Tribunal finds that the applicant previously held an Australian visa (and is a non-citizen) and his visa has been cancelled. The applicant made a valid application for review of the decision to cancel his visa and the Tribunal must carry out the review. The Tribunal has no power to make a declaration as to the applicant’s Aboriginality, to determine whether he is the subject of s. 51(xix) of the Constitution, nor to order his release from detention. The applicant concedes that this is so in his submission of 7 September 2022.

7. The Tribunal offered to postpone the hearing of the matter to enable the applicant to seek the relevant declaration but the applicant’s indication to the Tribunal is that he wishes to proceed with the present review first.

8. For the purpose of this review only, the Tribunal accepts that the applicant may be of Aboriginal descent. The applicant submits that recognition of his Aboriginality ought to be considered an overwhelmingly strong factor weighing in favour of setting aside the cancellation. The Tribunal has given this factor due weight.

   Relevant law

9. Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(e). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

10. 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].

    Does the ground for cancellation exist?

11. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted the Class TY Subclass 444 via on 23 October 2004. The Department received information that the applicant has been convicted of the following offences:

30/05/18	Possessing dangerous drug	Conviction recorded, fined $400
08//01/18	·  Breach of community service order (re burglary and commit indictable offence) ·  Breach of probation order (enter premises with intent) ·  Assault or obstruct police officer ·  Going armed so as to cause fear ·  Contravene direction or requirement	Conviction recorded, fined $300 Conviction recorded, sentenced to 1 month imprisonment Conviction recorded, fined $200
15/12/16	·  Enter premises with intent to commit indictable offence ·  Burglary and commit indictable offence	Conviction recorded, probation period 15 months Conviction recorded, 120 community service
13/12/16	·  Possessing dangerous drugs ·  Wilful damage	No conviction recorded, probation period 9 months
04/10/16	·  Enter premises and commit indictable offence ·  Contravene direction or requirement ·  Enter premises and commit indictable offence ·  Possess thing intended for use in connection with offence ·  Prior conviction of crime relating to property ·  Enter premises and commit indictable offence ·  Unlawful possession of suspected stolen property ·  Failure to appear in accordance with undertaking	Conviction recorded, probation period 15 months
16/08/16	·  Failure to appear in accordance with undertaking	Conviction recorded, fined $400
19/11/09	·  Supplying dangerous drugs ·  Possess utensils or pipes that had been used ·  Possess property suspected of having been used in connection with the commission of a drug offence ·  Possess tainted property ·  Possess utensils or pipes etc for use	Conviction recorded, probation period 18 months
19/11/09	·  Possessing dangerous drugs	Conviction recorded, probation period 18 months
11/12/08	·  Failure to appear in accordance with undertaking	Conviction recorded, fined $450
28/01/05	·  Commit public nuisance	Convicted and fined $250

1. The applicant confirmed that the above list is accurate but he states that he had never been charged with supply, only with possession. The applicant’s evidence to the Tribunal is that he also has been involved in an incident in 2019 resulting in him being charged but subsequent inquiries by the Tribunal indicate that the 2019 incident did not result in a conviction as charges were dismissed.

2. The circumstances of the above offences are described in some detail in the applicant’s declaration of 25 August 2022.

3. In his submission to the Tribunal the applicant states that he has a history of drug and alcohol abuse which played a big part in his offending. He states that during his detention he completed an anger management program and a drug and alcohol course and has expressed his remorse for doing things under the influence of drugs and alcohol, which he regrets. The applicant states that he is currently on an Opiate Substitution Treatment Program and has signed himself up for Drug and Alcohol support upon his release. The applicant provided to the Tribunal a statement from Charlie Nash of International Health and Medical Services confirming his participation in the Opiate Substitution Treatment Program where he is said to be an ‘active participant’. The Tribunal accepts that evidence. However, Dr Cook notes in his report that when the applicant was asked about his involvement in the Program, the applicant is reported to have said that it had been suggested to him to use the program as it ‘helps make the time here more tolerable’. If that is the case, it does not appear that the applicant decided to engage in the program because he felt remorseful for his past conduct or wanted to change his conduct and remove himself from drug and alcohol dependency. Rather, it appears that his motivation for engaging in the program was to pass the time while in detention. The applicant denied that in his oral evidence, stating that there is plenty of entertainment in detention but Dr Cook’s evidence (and it is the applicant who provided that report to the Tribunal) raises concerns about the applicant’s motivations for engaging in the program. Whatever the applicant’s motivations, the Tribunal acknowledges that the applicant completed the program (and intends to engage in other programs in the future).

4. In his written evidence the applicant claims he is remorseful for his past actions. However, in oral evidence he claims that ‘half the time’ he was simply at the wrong place at the wrong time and had done nothing wrong. That evidence does not suggest that the applicant is remorseful for his past conduct, rather he appears to believe, despite his multiple convictions, that at least on some occasions, he had done nothing wrong. The Tribunal has formed the view that the applicant lacks insight into his offending.

5. The applicant submits that incarceration and detention have been a ‘wake up call’ for him. The Tribunal is prepared to accept that the prospect to future incarceration may, to a degree, act as a deterrent factor to prevent future reoffending but the Tribunal does not consider that it would be sufficient as the applicant must have recognised in the past that his offending may lead to imprisonment.

6. The applicant’s mother provided a declaration to the Tribunal in which she states that her son was spending time with ‘undesirable company’ when he was young, contributing to drug taking. She states that the applicant is remorseful for his previous offending and is willing to accept help and has undertaken programs while in detention because being in detention was a big shock for him. The applicant’s mother expressed the view that the applicant will not reoffend again. She notes that if released, he would have the full support of his family and extended family and aboriginal community and will have employment. In oral evidence Ms Crawford also stated that if released from detention, her son would stay with a relative and have family support and he would not mix up with people of bad influence again. The Tribunal accepts that the applicant’s mother genuinely holds the views expressed in her statement. The Tribunal gives these some weight.

7. The applicant submits that he was suffering from alcohol use disorder, cannabis and stimulant use disorder and in the opinion of Dr Cook, these disorders are now in remission. Having read Dr Cook’s report, the Tribunal does not consider that statement to be entirely accurate. Dr Cook states that he has not been privy to drug test results or the like but based on Mr McDonald’s report and circumstances [emphasis added] it appears that these disorders are now in remission. Thus, it is not apparent that Dr Cook’s observations are based on any independent evidence or testing. Rather it is an observation, based on the applicant’s own reporting, that the disorders ‘appear’ to be in remission. For that reason, the Tribunal gives Dr Cook’s evidence more limited weight but nevertheless, the Tribunal accepts Dr Cook’s professional opinion and gives it due weight.

8. The applicant states that his past offending was due to drug and alcohol use and the possibility of reconciliation with his former partner would act as a motivator for him not to use drugs and alcohol in the future. The applicant submits that his relationship with his partner is a strong protective factor against reoffending. However, the Tribunal is mindful that the applicant and his partner’s relationship ended some time ago and the applicant has not ceased to use drugs or alcohol in order to reconcile and resume his relationship with his wife and child in the past. The Tribunal acknowledges that the possibility of a reconciliation (if it exists) may act as a motivating factor not to reoffend but the Tribunal does not consider this is a strong deterrent because it has not acted as one in the past.

9. The Tribunal is also mindful that there is no probative evidence from the applicant’s partner to indicate that she has any intention to reconcile with the applicant. This was discussed with the applicant in the course of the hearing. In his post-hearing submission the applicant states that due to her poor mental health, his partner is not able to provide a statement to support the applicant’s claims. The Tribunal cannot determine whether the applicant’s partner has not provided a statement indicating her intention to reconcile due to her poor mental health or for another reason (for example, because she does not have such an intention). In the absence of evidence from the applicant’s partner confirming her intention to reunite with the applicant, the Tribunal is not prepared to accept the applicant’s own evidence about his partner’s desire to reconcile or about her intention to live with him in the future. In the circumstances, the Tribunal is not satisfied, on the evidence before it, that the prospect of reconciliation will act as a significant protective factor and a deterrent for the applicant not to reoffend.

10. The applicant states that he has strong family support, stable accommodation, the possibility of resuming his relationship with his partner and daughter, positive employment prospects and he has reached a more mature age. The applicant states that he is aware that future offending is likely to result in deportation and that will also act as a deterrent to future reoffending. The applicant refers to his links to the community and the strength of such ties, is also a protective factor. The Tribunal accepts that these factors may act as an incentive for the applicant not to commit any further offences. The Tribunal gives these limited weight, however, because despite many of these factors being present in the past, the applicant did offend over a period of time. It is possible that the applicant is now more aware of his background, has stronger links to, and support from the community, and greater awareness of his circumstances but these factors are not beyond doubt. At present, there is little more than the evidence of the applicant and those close to him and these claims are yet to be tested in the community. The Tribunal accepts that these factors may act as some incentive for the applicant not to reoffend, the Tribunal does not consider these will necessarily be a strong incentive.

11. Importantly, in his report Dr Cook states that if the applicant became involved in drug and alcohol use again, it would be likely that he would reoffend. Dr Cook refers to the applicant reporting to not using drugs and alcohol since 2018 and moving from Brisbane to avoid past associations and that  is consistent with the applicant’s own evidence but the Tribunal is concerned that, should the applicant return to the use of drugs or alcohol, he would be likely to reoffend. It is noteworthy that Dr Cook states in his report that the applicant has demonstrated low self-control and impulsivity in the past (it is unclear if this was caused by substance abuse and whether he is now more mature).

12. Dr Cook refers to the applicant being more mature, having strong family and other relationships, having stable employment and a place within social group. The Tribunal acknowledges that evidence but, as noted above, the Tribunal is mindful that many of these factors were present, to some degree, in the applicant’s life in the past and these did not prevent his past offending. The applicant also told the Tribunal that he is now more mature. While the Tribunal accepts that is the case, the Tribunal is also mindful that the offending conduct occurred only a few years earlier and it may be that insufficient time has passed to establish a significantly greater level of maturity.

13. The Tribunal is prepared to accept that much of the earlier offending was caused by drug and alcohol use. The applicant’s participation in the drug and alcohol rehabilitation program during detention and his intention to engage in further program in the future reduce the risk of future reoffending but the Tribunal is not satisfied such risk is removed altogether.

14. Dr Cook states in his report that there are negative risk factors, including past offending, tendencies towards impulsivity and history of substance use, but there is reported cessation of substantive abuse and a number of positive indicators including family support, stable accommodation, possibility of resuming his relationship with his former partner and daughter, more maturity and employment prospects. Dr Cook states that the applicant does not have strong criminal or violent tendencies and that his past offending was associated with chaotic drug-fuelled lifestyle but there are reasonable grounds for concluding that he has reappraised his life and there is a ‘far lower risk of further offending’. It is notable, in the Tribunal’s view, that Dr Cook does not conclude that the risk of reoffending is low or non-existent. He states that the risk is ‘far lower’ than it was before. In the Tribunal’s view, the risk of reoffending in the past was high, given the frequency of the past offending. A risk that is ‘far lower’ than high can still be characterised as a significant risk. It is certainly not non-existent and, on the Tribunal’s reading of Dr Cook’s report, cannot even be classified as being ‘low’.

15. The applicant also provided to the Tribunal evidence of his attendance at a drug and alcohol program at Odyssey House. He provided a copy of communication from Odyssey House confirming that the applicant has been referred for assessment of his suitability into Residential Rehabilitation, which is to be reviewed in the coming weeks. The Tribunal accepts that the applicant is engaged, and intends to continue to engage, in that program but that is insufficient evidence, in the Tribunal’s view, that the applicant is now capable of abstaining from alcohol and drugs, particularly once he is in the community where access to drugs and alcohol is greater than in detention. 

16. The Tribunal is mindful that the applicant has been in detention for several months and there drugs and alcohol are far less accessible than they are in the community. The applicant has not recently lived in an environment where he may again be subject to bad influences and where the temptation of drugs and alcohol would be readily available to him. He is also more likely to be subjected to the influence of his past acquaintances (even acknowledging his evidence that he will try not to mix with bad people). The Tribunal cannot be completely satisfied that in such circumstances, the applicant will not relapse into substance abuse.

1. The applicant submits that the departmental policy on the assessment of risk is ‘nebulous and illogical’ and should be disregarded by the Tribunal. However, the Tribunal is guided by the reasoning in Gong that there does not have to be, any direct, solid or certain foundation before the power can arise.

2. Having regard to all the circumstances, and while acknowledging that the applicant is taking significant steps towards rehabilitation, the Tribunal is not satisfied that the applicant is now rehabilitated, that he would not resume drug and alcohol use when in the community or that  he would be able to effectively manage any difficult situation without resorting to criminal conduct. The Tribunal has formed the view that there remains a risk to others if the applicant was living in the community, even if that risk is lower than it was in the past.

3. The Tribunal finds that the applicant’s presence in Australia may be or might be a risk to the safety of individuals or to the safety of the Australian community. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(e) 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

4. 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

5. The applicant states in his written submission to the Tribunal that he has been living in Australia since 2004 and came to Australia to form a life here and live here permanently. He told the Tribunal in oral evidence that Australia has more opportunities and is better than living in New Zealand. The Tribunal accepts that the applicant is fulfilling the purpose of his travel and stay in Australia.

6. The applicant told the Tribunal that he needs to stay in Australia because he is Aboriginal and wants to learn more. The applicant states that his immediate family is in Australia although he has a sister living in New Zealand. The Tribunal accepts that evidence and accepts that the applicant’s preference is to remain in Australia, to learn more about his background and to remain with his immediate family. With respect to family connections, the Tribunal is mindful that the applicant is an adult and, in the Tribunal’s view, capable of being financially and otherwise independent from his family and living independently from his family. In the Tribunal’s view, the geographical distance between the applicant and his family and community in Australia need not result in the cessation of these links and relationships.  The Tribunal is also of the view that the applicant is able to learn about his heritage irrespective of his place of residence. Nevertheless, the Tribunal acknowledges the applicant’s evidence about his connection to the community and the land in Australia and his desire to strengthen that connection.

7. The Tribunal also acknowledges that the applicant’s minor daughter lives in Australia but for the reasons set out below, the Tribunal is of the view that, given the nature of the applicant’s interactions with the daughter, the relationship could continue even if the applicant lives overseas.

8. In the circumstances of this case, the Tribunal is not satisfied that the presence of the applicant’s family in Australia, including his daughter, and his Aboriginal descent constitute compelling reasons for the applicant to remain in Australia. Neither does the Tribunal accept that claiming better opportunities in Australia than in New Zealand is a compelling reason for the applicant to remain in Australia, as the applicant has not satisfied the Tribunal that he would not have meaningful opportunities in New Zealand (whether these are the same, better or worse than in Australia).

   The extent of compliance with visa conditions

9. There is no evidence of any non-compliance with visa conditions.

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

10. The applicant submits that his close family are in Australia, including his parents and daughter. The applicant states that his immediate family will suffer psychological and emotional hardship if he is removed from Australia. That statement is unsupported by independent probative evidence (such as, for example, reports from health professionals).

11. The applicant submits that his daughter, aged 14, misses him and will suffer ‘immense psychological and emotional hardship’ if he is removed from Australia and unable to resume his contact with her. The Tribunal is of the view, however, that contact need not be limited to personal contact and it is possible to maintain meaningful contact by electronic means, should the applicant be required to leave Australia as a result of his visa being cancelled.

12. The applicant states that his father is dependent on him as he has a number of health issues. The applicant states that when he was in the community, he was a source of motivation for his father and assisted his mother to look after their extended family and also provided financial support to the family. The applicant submits hat his mother is concerned that his removal from Australia would adversely affect his father’s health. The applicant’s mother in her own statement submits that if the applicant is to be removed from Australia, it would have consequences for the entire extended family but in particular for his father, who has heart problems, depression and anxiety. In her declaration, the applicant’s mother states that during the time when the applicant lived with his parents in 2018, he was a big help. That is consistent with the oral evidence before the Tribunal. However, it is not apparent from that declaration that the applicant has had ongoing involvement in the care and support of his father and, indeed, it seems to have been a temporary arrangement. The Tribunal is mindful that the applicant has been living away from his family for some time. There is no persuasive evidence before the Tribunal that this has had an adverse effect on the health and well-being of his parents. Thus, while the Tribunal accepts that the family may recognise a benefit of the applicant living with, and supporting, his parents, the Tribunal is not satisfied that in the absence of such arrangements, the health and well-being of the applicant’s parents would be adversely affected.

13. The applicant’s father provided a statement to the Tribunal outlining his past study and employment, the applicant’s relationship with his daughter and other family in Australia. The Tribunal acknowledges that evidence.

14. The applicant refers to the presence of extensive family in Australia, stating they would suffer emotional hardship if he is removed. The applicant refers to the various nieces and nephews and refers to his regular contact with them. The Tribunal is mindful that much of that contact appears to be by electronic means, particularly as there had been extended periods of time when his parents and siblings, nieces and nephews lived in different states to the applicant. The fact that the applicant was able to maintain a meaningful relationship with his extended family through electronic means when not living in close physical proximity suggests that the applicant would be able to do the same, should he leave Australia as a result of his visa being cancelled. The Tribunal acknowledges that if the applicant’s visa is cancelled, and if he is to leave Australia as a result (which is not necessarily a consequence), the applicant would have more limited opportunities of visiting his family in Australia and the nature of his interactions and relationships with family in Australia may not be the same than if he was living in Australia, but the Tribunal does not consider that the applicant will be unable to maintain a meaningful relationship with his family even if he does not live in Australia.

15. Further, while the Tribunal acknowledges the presence of various relatives in Australia, there is little evidence to support the applicant’s contention that they would suffer emotional hardship if he were to be removed from Australia. The Tribunal accepts that they prefer to be close to the applicant but as noted elsewhere, the Tribunal is of the view that relationships can be maintained even where there is some distance between them. The Tribunal is not satisfied that the applicant’s extended family would suffer emotional hardship if the applicant’s visa is cancelled.

16. The applicant refers to his Aboriginality, its importance to his sense of identity, his links to the Aboriginal community and his desire to learn more upon release from detention. The Tribunal accepts that evidence and considers these to be strong factors in favour of setting aside the cancellation.

    Circumstances in which ground of cancellation arose.

17. The ground for cancellation arises because the Tribunal has formed the view that the applicant’s presence in Australia may or might be a risk to the safety of the Australian community, its segment or individuals. The applicant submits that he was struggling with drug and alcohol abuse but is now sober and has enrolled in drug and alcohol treatment programs, has the support of his family and the community to stay drug-free. These claims are addressed elsewhere and while the Tribunal accepts that the applicant appears to have been free of substances for a few years, the Tribunal has formed the view that there remains a risk to the Australia on community or individuals. The Tribunal does not consider whether the ground for cancellation and the past offending, arises due to circumstances beyond the applicant’s control.

    Past and present behaviour of the visa holder towards the department

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

    Whether there would be consequential cancellations under s 140

19. There are no persons whose visas would be subject to consequential cancellation.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

20. The applicant claims that due to his Aboriginality, his detention is unlawful. As noted above, the Tribunal has accepted, only for the purpose of the present review, that the applicant may be of Aboriginal descent. The Tribunal is unable to make a declaration to that effect, nor to determine if the applicant’s detention is lawful. It is not for this Tribunal to speculate what the findings of a Court may be.

21. If the applicant is considered as an alien and a non-citizen, and if his visa is cancelled, unless he is granted another visa, the applicant will become an unlawful non-citizen and may be detained and removed from Australia. The cancellation of the visa will limit the applicant’s options of seeking other visas in Australia due to the operation of s. 48 and while the applicant may seek other visas offshore, he may be subject to an exclusion period in relation to some visas.

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

22. The applicant has a minor child in Australia. The primary decision record indicates that there was in place a Temporary Protection order for the protection of the child which requires the applicant not to expose the child to domestic violence. The applicant’s evidence to the Tribunal is that there are no current orders and following the hearing, the applicant provided to the Tribunal confirmation that there are no orders in relation to him currently in place. The Tribunal accepts that evidence.

23. The applicant’s evidence to the Tribunal is that prior to his detention, he and his daughter had daily contact but did not see each other often because they lived in different states. Since his detention, he saw his daughter once in early 2022 but continues to contact her. The applicant’s evidence is that he wanted to have as much contact with his daughter as possible, but they had infrequent (albeit regular) personal contact even prior to his detention and during his detention. In the Tribunal view, the same contact could be maintained whether or not the applicant remains in Australia. The Tribunal accepts that if the applicant was to live in New Zealand, there would be far fewer opportunities for personal contact between the applicant and his daughter but there is no reason why the applicant and his daughter could not continue to main frequent electronic contact and a meaningful relationship through that contact as they did in the past when the applicant and his daughter lived in different states.

24. In the particular circumstances of this case, the Tribunal has formed the view that the best interests of the applicant’s daughter would not be adversely affected by the cancellation of the applicant’s visa.

25. The applicant claims that as an Aboriginal man, if his visa is cancelled, he will be denied access to the land and to his people and that is a form of persecution. The Tribunal does not consider that such claims give rise to Australia’s non-refoulement obligations. The Tribunal also acknowledges the applicant’s evidence that he intends to seek a relevant declaration from the court and if he is successful in doing so (that is, if his Aboriginal descent is recognised), the applicant will be able to remain in Australia, irrespective of the outcome of this review. Thus, the Tribunal does not consider that the cancellation of the applicant’s visa will result in the applicant being denied access to the land and the community. 

26. The applicant’s immediate family live in Australia and his sister lives in New Zealand. The Tribunal does not consider the application of the Migration Act to be an arbitrary or unlawful interference with family.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

27. The visa in question is not a permanent visa but does permit, in effect, permanent stay in Australia. The Tribunal acknowledges that the applicant has strong family, community, employment and other ties in Australia.

    Any other relevant matters

28. The applicant refers to the impact of the cancellation of his visa on his Aboriginal family and community. He states that removing him from a family and community that had already ‘suffered the ravages of displacement and separation’ cannot be understated. The applicant submits that removing him from his family would be a despairing experience to many Aboriginal Australians. The Tribunal does not accept that argument because there is no probative evidence to satisfy the Tribunal that the removal of the applicant, if that is in fact the consequence of his visa being cancelled (noting that if the applicant is indeed recognised as an Aboriginal, he may not be subject to removal) would affect the community or would ‘replicate their collective experience of management and control’ as the applicant suggests. The Tribunal considers such broad statements unhelpful. There is simply no basis for the applicant’s apparent claim that the experience of any Aboriginal person would adversely affect the community as a whole in the way the applicant describes and the Tribunal is not prepared to accept that claim.

29. The applicant provided to the Tribunal a number of character statements and letters of support. The Tribunal acknowledges and accepts that evidence and gives these some weight against the cancellation.

30. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the applicant’s visa because his presence in Australia may be a risk to the safety of the Australian community or individuals. The Tribunal accepts that the cancellation of the visa could cause considerable hardship to the applicant and his family if the consequences of the cancellation is that the applicant has to depart Australia. In particular, the Tribunal acknowledges that the applicant has spent most of his life in this country and is well settled here, that most of his immediate family live in Australia, including his minor daughter, with whom he has maintained a relationship.

31. The Tribunal acknowledges (but does not necessarily agree with) the applicant’s belief that if he is in New Zealand, he cannot learn about his Aboriginal heritage. Nevertheless, the Tribunal considers that the applicant’s aboriginal descent, his links to the community and his desire to learn more, provides significant weight against the cancellation.

32. The Tribunal has formed the view that if the applicant is removed from Australia, he will be able to maintain relationships with his family and the community but the Tribunal acknowledges that such relationship will necessarily be of different nature because there would be less opportunities for physical contact, at least while the applicant is subject to the exclusion period. The Tribunal accepts that this may also cause hardship to the applicant and others. The Tribunal acknowledges the evidence that the applicant supports his family and, in particular, his father. The Tribunal gives significant weight to the applicant’s support in the community, as well as his family and also some weight to his stated willingness to continue to engage in rehabilitation programs. All these factors weigh heavily in favour of the cancellation being set aside.

33. However, the Tribunal has decided to place greater weight to the circumstances in which the ground for cancellation arise. The applicant had committed multiple offences and while the representative submits that these were of minor nature, some of the offences could not reasonably be classified as being minor, including drug related offences, assault on a police officer, burglary and being armed. The offences that involved or were targeted towards others may have caused fear, apprehension or discomfort to members of the community and that cannot be classified as minor. Significantly, the Tribunal has formed the view that the applicant continues to pose a risk to the community.

34. Having considered and weighed all the circumstances of this case, the Tribunal has decided to place greatest weight on the circumstances in which the ground for cancellation arises. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    decision

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

    Kira Raif
    Senior Member