Mackie (Migration)

[2019] AATA 1789

Mackie (Migration) [2019] AATA 1789 (18 March 2019)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Heremia Jordan Mackie

CASE NUMBER:  1902056

HOME AFFAIRS REFERENCE(S):           BCC2018/4026777

MEMBER:Ann Duffield

DATE:18 March 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 18 March 2019 at 2:07pm

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 safety of an Australian community or a segment of the community – charged with criminal offences – incident was one off – court case has been dismissed –decision under review set aside

LEGISLATION
Migration Act 1958, s 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 16 January 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 and/or convicted of a number of offences. The delegate formed a view that as a result of these criminal offences 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 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 18 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister, mother and father and a family friend.

4. The applicant was represented in relation to the review by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   BACKGROUND

6. The applicant is a citizen of New Zealand born on 19 October 1992 (26 years old).

7. The applicant provided the Tribunal with a copy of the delegate’s decision along with his application for review.

8. In February 2013 the applicant was considered for cancellation under subsection 501(2) of the Act. The applicant had been convicted of seven counts of Robbery with actual violence armed/ in company/ wounded/ used personal violence and was sentenced to six years imprisonment for each offence.

9. After taking into account all relevant considerations, on 13 May 2013 the delegate decided not to cancel the applicant’s visa. He was however, issued with a formal warning along the following lines:

   Please note that via cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your visa is reconsidered.

10. In 2014 the applicant was charged and convicted of Affray, Commit public nuisance, and Assault or obstruct police officer for which he was fined and sentenced to nine months imprisonment, suspended for 2 years concurrent.

11. In 2018 the applicant was charged with Assault Occasioning Bodily Harm (Domestic Violence offence) and Wilful damage (domestic violence offence) in relation to an incident which allegedly occurred at his home on 8 June 2018.

12. The applicant did not respond to a request by the Department to comment on these matters in the Notice of Intention to Consider Cancellation of the applicant’s visa.

13. The applicant’s visa was subsequently cancelled on 3 December 2018. Rather than taking him into immigration detention, the Department granted the applicant a bridging visa in relation to this review.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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

15. 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].

16. 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.

17. The submissions from the applicant, his mother and the alleged victim (the applicant’s elder sister), both at the hearing and in writing, are that the incident leading to the charges was a one off. The applicant’s sister told the Tribunal that she tried several times to get the charges against her brother dropped but she was ignored by the police. She told the Tribunal that she was filled with remorse that she might be the reason why he will be separated from his children.

18. The applicant was on parole at the time of the charges from a previous conviction. His bail conditions in relation to the domestic violence charges still permitted him to live with the victim and his parents in a home they have shared together for many years. In her submission to the Tribunal the applicant’s mother spoke of a sensitive young man, temporarily under the influence of troubled youths who loved his music and his family. She said that his remorse for the robbery incident was such that he tried to take his own life.

19. The applicant has been working full time since his release from prison and has assumed the care of his two step daughters from a previous relationship and his two daughters from his current relationship. He told the Tribunal that he has been involved in making music and in the past several months has been signed to a record label.

20. The applicant’s parole period in relation to the 2012 charges has recently ended. He has abided by his parole conditions entirely over the past six years.

21. At the hearing the applicant gave the Tribunal a letter from the applicant’s criminal lawyers stating that his matter was mentioned at the Southport Magistrates Court on Tuesday 5 March 2019. The Magistrate struck out the charge and discharged the applicant from his bail undertaking.

22. There are, therefore, no grounds for cancellation.

23. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(e)(i) exists. It follows that the power to cancel the applicant’s visa does not arise.

24. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    DECISION

25. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

    Ann Duffield
    Senior Member