Mikaele (Migration)

[2018] AATA 4718

Mikaele (Migration) [2018] AATA 4718 (8 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wilson Pedro Manila Juni Mikaele

CASE NUMBER:  1820872

HOME AFFAIRS REFERENCE(S):           BCC2017/3654137

MEMBER:Ann Duffield

DATE:8 October 2018

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 08 October 2018 at 2:52pm

CATCHWORDS
MIGRATION – Cancellation – Special Category (Class TY) visa – Subclass 444 (Special Category) – risk to Australian community – series of offences – held on remand – efforts of rehabilitation – contribution to family – family support in Australia – exposure to wrong people – genuine remorse – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), 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 11 July 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 has an extensive criminal history which the delegate determined made the applicant a risk to the health, safety, or good order 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 2 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s parents and brother and also from Ms Raewyn Burton at the Pacific Connect and Support Centre.

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

   BACKGROUND

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

6. The applicant is a citizen of New Zealand born on 20 June 1999 (19 years old) in American Samoa. He and his family went to New Zealand in 2005 and subsequently travelled to Australia to settle in 2013. He claims to have no family left in New Zealand. His parents and 11 siblings live in Australia. His youngest brother, aged 12 months, has downs syndrome. He is still has the right to reside in Samoa.

7. The applicant committed a number of serious crimes over the course of ten months commencing around January 2017 and concluding in October 2017 when he was imprisoned. These crimes included three counts of robbery and assault occasioning bodily harm whilst armed in company. He was sentenced to a cumulative period of 7 years and 11 months months He has served a total of 362 days in Juvenile Detention and prison for those crimes.

8. The applicant was on bail from 5 January 2017 to 19 January 2017. He was held on remand in juvenile detention from 19 January 2017 until 8 June 2017 when he was released on bail conditions until 5 October 2017.

9. He was taken into custody again and held at Arthur Gorrie from 5 October 2017 until 14 May 2018 when he was released under bail conditions until 26 July 2018. On that day he was taken into immigration detention.

10. He was notified of the delegate’s intention to consider cancellation of his visa on 22 November 2017. The decision to cancel the visa was made on 11 July 2018.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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

12. 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].

13. 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.

14. Prior to the Tribunal’s hearing the applicant, through his representative, provided the following documents:

    a.Letter of support from the applicant’s parish priest

    b.Letter from the Metro South Health Department of Paediatrics stating that the applicant has been required to support his family and his brother (with Downs Syndrome) during the latter’s extended admission.

    c.Certificates of participation in a number of self-help courses

    d.Confirmation of the applicant’s enrolment in a Diploma of Criminology and Criminal Justice dated Monday 20 February 2017.

    e.The applicant’s academic records

    f.Copies of his family members New Zealand passports

    g.Statement of support from Pacific Connect and Support

    h.Statutory declaration from the applicant

    i.Statutory declaration from the applicant’s younger sister stating that the applicant is a good person and deserves another chance to stay in Australia.

    j.Statutory declaration from the applicant’s younger brother stating that the applicant is a good person and deserves another chance to stay in Australia to help look after the family.

    k.Statutory declaration from the applicant’s mother stating that she requires the applicant to stay in Australia to help support the family. She states that the applicant has learnt valuable lessons from his past crimes and has expressed his remorse and regret.

    l.Statutory declaration from the applicant’s father

    m.Other letters of support from family members provided to the delegate prior to the decision to cancel the applicant’s visa.

    n.Submissions from the applicant’s representative dated 9 January 2018 and 28 September 2018.

15. The applicant’s representative submits the following on his behalf:

    a.The Tribunal should not give any weight to charges which were withdrawn or to the witnesses’ untested evidence.

    b.Six of the offences to which the applicant plead guilty were committed when he was only 17 years of age and should be considered in the context of the applicant’s age.

    c.The most serious offences occurred in October 2017 when the applicant was 18 years old.

    d.The applicant accepts the seriousness of his offending and has expressed extreme contrition and regret for his actions.

    e.The applicant’s completion of high school and his demonstrated ability to obtain and maintain employment are protective factors that mitigate against his risk of reoffending in the future as does the prospect of the mandatory cancellation of his visa should he reoffend.

    f.Whilst the applicant admits that Juvenile detention served as no deterrence to his future (and immediate) re-offending, he claims that his time in adult prison has caused him to reflect seriously about his future and has developed a significantly greater level of maturity.

    g.The applicant has undertaken a number of self-help courses which are a further factor that reduces his risk of re-offending.

    h.The applicant is not a risk to the health safety or good order of the Australian community or a segment of the Australian community.

    i.The risk of the applicant “causing harm to the community is low and if such risk was to manifest, the magnitude of the harm likely to be caused is not minimal, but not very serious and definitely not extreme”.

    j.The applicant’s immediate family reside in Australia including his parents and ten siblings who would suffer hardship should the applicant be required to leave.

    k.The applicant is closely engaged in his community, including through the church.

    l.The applicant would be ineligible to return to Australia under most visa classes if his visa is cancelled and he is removed.

    m.Australia would be in breach of articles under the Convention for the Rights of the Child

16. The Tribunal took oral evidence from the applicant and others at the hearing including his parents.

17. The Tribunal found the applicant’s evidence to be authentic and compelling. The applicant’s remorse and feelings of guilt and shame were evident and he was emotional at the hearing when talking about his past offences.

18. The applicant took responsibility for his actions and told the Tribunal that he regretted what he had done in the past. He accepted that his behaviour towards others could have resulted in far more serious harm. The Tribunal put to him that “one punch” actions in the past had resulted in the deaths of victims. The Tribunal asked the applicant if he had thought of this when he assaulted innocent and unsuspecting victims for their meagre possessions. The applicant told the Tribunal that he had thought about it all the time and was deeply remorseful.

19. The Tribunal put to the applicant that on at least one occasion he was not under the adverse influence of alcohol and yet still punched an intoxicated man at a bus stop and stole his wallet and shoes. The Tribunal put to the applicant that it considered this kind of unprovoked behaviour against someone unknown to him of significant risk to the Australian community. The applicant again told the Tribunal that he deeply regretted his actions and was ashamed of what he had done. He said that he did it to impress some girls that he was hanging around with at the time and to enhance his reputation amongst the group of youths he was also associating with at the time. The Tribunal asked him if he genuinely believed that assaulting innocent victims had a positive dimension to his reputation and he said he did not. He said he no longer associates with these people. He said that he was feeling lost at the time and was reacting to the strict discipline he received in his family. (The applicant did not suggest, nor does the Tribunal infer, that such discipline included any violence of any kind).

20. Both the applicant’s younger brother and Ms Burton had a detailed discussion with the Tribunal about the motivations for the applicant’s behaviour and for the behaviour of other young people in the applicant’s community. Whilst the Tribunal accepts that the applicant was rebelling from constraints placed on him by his culture and community as the eldest child and son, it nevertheless does not accept that it excuses his behaviour nor explains it.

21. It seems to the Tribunal that there are many young men in the applicant’s situation who do not randomly assault innocent people unprovoked. The judiciary also had a harsh view on this matter and the applicant has served a total of some 362 days in custody.

22. 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

23. 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’.

24. The Tribunal has considered the purpose of the visa holder’s travel and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia.

25. The applicant has been living in Australia with his family for only five years. He is the eldest son and child of 11 children. The youngest child a boy of around 12 months has downs syndrome. The applicant has no family in New Zealand but has some distant relatives in American Samoa who would extend him support and care. The applicant has a right to return and reside in American Samoa as well as New Zealand.

26. The applicant told the Tribunal that he needed to stay in Australia to help support his family and look after his siblings, including his youngest brother who has Downs Syndrome. The Tribunal asked the applicant and his family what contribution he had made in the past and it amounts to little. The applicant only worked for several months after he left school and has been incarcerated since before his younger brother was born except for a few months in 2017. At that time the applicant told the tribunal that he went to visit his brother in hospital a couple fo times a week and otherwise helped get the younger children’s lunch ready and looked after them when his parents were at work.

27. The Tribunal does not accept that these contributions to the family’s welfare are particularly significant. Indeed, the applicant and his parents have told the Tribunal that it would be more difficult for them if the applicant were to be sent to New Zealand or elsewhere because they would have to support him financially. The Tribunal put to the applicant that he could obtain work and look after himself without imposing on his family. The applicant said it would be difficult for him to find work. He said that people might not want to hire him if they knew he had a criminal record. He said it would affect him emotionally. The Tribunal put to the applicant that as a New Zealand citizen he would have access to the medical and welfare system.

28. The Tribunal accepts the evidence of the applicant and his family that they share a close emotional bond. The Tribunal accepts that they would all suffer hardship if the applicant were to depart Australia. The applicant’s father in particular told the Tribunal that he is close to the applicant and still has hopes that he can lift himself out of this situation and achieve success in life. The applicant said that he had always wanted to be a policeman and his father had saved $18,000 to pay for his fees to attend Griffith University in 2017. The applicant said that he didn’t go, much to his father’s disapproval, because he had fallen in with the wrong people. The Tribunal put to the applicant that any career aspirations he might have had as a policeman were over. The applicant said that he understood that but had been talking to Ms Burton about alternative pathways in the justice system where he could make a contribution.

29. The Tribunal has considered the extent of compliance with visa conditions. The applicant’s visa does not carry any visa conditions so this aspect is not relevant to the Tribunal’s considerations.

30. The Tribunal has considered the degree of hardship that may be caused (financial, psychological, emotional or other hardship) if the applicant has to depart Australia.

31. The Tribunal accepts the oral and documentary evidence (including statements from family and friends) that the applicant, as well as other family members would suffer emotional and financial hardship if the applicant’s visa is cancelled. The Tribunal finds that this evidence weighs against the cancellation of the visa.

32. The Tribunal accepts the evidence that the applicant has undertaken some steps towards rehabilitation and that he proposes to continue with the support of family and friends. The Tribunal notes the applicant’s genuine remorse for his behaviour and the very strong expressions of support from Jessica and other members of his family, as well as work colleagues and friends. The Tribunal gives this evidence positive weight in the applicant’s favour.

33. The Tribunal has considered circumstances in which ground of cancellation arose. The applicant has admitted there are no extenuating circumstances to his actions. He was not provoked. He was not drunk or under the influence of illicit substances. He wanted to “show off” to his friends and some girls.

34. The Tribunal equally finds no extenuating circumstances beyond the applicant’s control that led to the grounds for visa cancellation existing. The Tribunal finds this evidence weighs in favour of cancelling the applicant’s visa.

35. The Tribunal has considered past and present behaviour of the visa holder towards the department and found no evidence that the applicant has been anything other than cooperative.

36. The Tribunal has considered whether there would be consequential cancellations under s.140 and found none.

37. The Tribunal has considered whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.

38. If the applicant’s visa is cancelled he will be prevented from applying for and receiving another 444 visa as he will not meet the relevant conditions. He may be eligible for other visa classes at some point in the future but in any case, will be prevented from re-entering Australia for three years.

39. The evidence suggests, and the Tribunal accepts that the applicant is at a vulnerable stage and his life and has shown significant immaturity. The Tribunal accepts that the applicant, and his family, would find it difficult to adjust if the applicant were to depart Australia and the Tribunal also accepts that the applicant, without the support of his family and Ms Burton, may again be attracted to the acceptance and “respect” he found with the “wrong” kind of people if he were to have to relocate to New Zealand or Samoa.

40. The Tribunal puts significant weight on this matter in the applicant’s favour.

41. The Tribunal has considered 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. The Tribunal is satisfied that the applicant will not be refouled if returned to New Zealand or American Samoa. He is an adult and has no children hence the Tribunal has not considered whether the rights of child need to be considered.

42. The Tribunal has considered if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia.

43. The Tribunal has carefully reflected upon the factors in favour of and against the cancellation of the applicant’s visa. The factors that weigh heavily in favour of cancellation is the applicant’s history of violence against individuals. The Tribunal does consider that this behaviour constitutes a risk to the safety of the Australian community. The factors weighing most heavily against cancellation are his manifest remorse and acceptance of what he has done and his efforts at rehabilitation. Also, the Tribunal considers it a positive sign of the applicant’s rehabilitation that he has hopes for the future and a genuine ambition to further his studies so that he can find work in the justice field, in particular, in working with other young people who have found themselves in similar situations to the applicant.

1. The applicant’s family have a profound belief in him and expressed no doubts that he would stay away from bad influences in the future. It is obvious to the Tribunal that his fear of losing his family and right to reside in Australia is a strong motivation to stay out of trouble. Ms Burton has told the Tribunal that young people such as the applicant find that if given a second chance it is her experience that they make the most of it.

2. The Tribunal has taken into account the gravity of the applicant’s offending as reflected in his sentencing. The Tribunal has also taken into consideration the applicant’s recidivism. This would normally not give the Tribunal any confidence that the applicant has learnt from his past mistakes and will genuinely reform. However, the circumstances of this case have not led the Tribunal to form such a view. The applicant was headstrong, rebellious and seeking acceptance outside the family. He felt overwhelmed by the pressures of being the eldest son and child. The Tribunal does not consider that the applicant’s crimes show a propensity to extreme violence or even malice.

3. The applicant completed high school and was accepted into a justice degree at Griffith University. The Tribunal finds him to be a person of intelligence, promise and genuine remorse. The Tribunal has formed a view that such a life should be offered a second chance to realise its potential.

4. The Tribunal considers, on balance, that the discretionary factors against cancellation of the visa outweigh those factors against. The applicant is aware that if he commits any further offences his visa will be mandatorily cancelled under the provisions of s.501 and he will be deported. The Tribunal has given the applicant the benefit of the doubt and finds that all these factors working together will ensure that the applicant does not present as a risk to the Australian community in the future.

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

   DECISION

6. 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