Minister for Immigration and Multicultural Affairs - [2024] ARTA 518

2445401 (Migration) [2024] ARTA 518 (18 December 2024)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2445401
Tribunal:Senior Member M Ison
Place:Melbourne
Date:18 December 2024
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 December 2024 at 2:37pm
CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – first cancellation notification defective – second notification while applicant in immigration detention – risk to health, safety or good order of community or segment of it – criminal offending, including offences against partner and final intervention order, now expired – discretion to cancel visa – rehabilitation courses, reduced alcohol and drug use and no further offending – work history and partner and young children’s economic dependency – open and honest evidence from partner – hardship, family unity and best interests of children – one child’s developmental disorders and care needs – length of residence and support network – character references – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(e)(i), 127(3), 359A
CASES
Djokovic v MICMSMA (2022) 289 FCR 21
MICMSMA v Parata [2021] FCAFC 46
Tien v MIMA (1998) 89 FCR 80
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 October 2019 to cancel the applicant’s Subclass 444 (Special Category) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant is [applicant name] who is a [Age]-year-old New Zealand national who first arrived in Australia on his own as a [Age]-year-old to look for work [in] September 2013. [Applicant name] is referred to as the applicant in these reasons for decision.
The applicant departed Australia for four months in January to May 2014 travelling to [Country] for his [birthday] and returning to New Zealand for a week.
In October 2016 the applicant met [Ms A] who is a [Age]-year-old New Zealand national. [Ms A] was born in Australia to New Zealand citizen parents but thought she may hold dual Australian and New Zealand citizenship.
[Ms A] told the Tribunal she thought her children may also hold dual Australian and New Zealand citizenship.
The applicant and [Ms A] departed Australia [in] October 2017 and stayed in New Zealand for 11 days, returning to Australia [in] November 2017. Neither has departed Australia since.
[Ms A]’s Australian government movement records state when she last entered Australia [in] November 2017 she was granted a Special Category Subclass 444 visa at that time. The Tribunal is satisfied [Ms A] is a New Zealand citizen.
The applicant and [Ms A] told the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] ARTA 518
Decision Date: 18 December 2024

CaseChat Overview and Summary

This case involves the cancellation of the Subclass 444 (Special Category) visa held by a New Zealand national, [applicant name], under Section 116(1)(e)(i) of the Migration Act 1958 (Cth). The delegate of the Minister for Home Affairs cancelled the visa, asserting that the applicant's criminal history in Victoria posed a risk to the health, safety, or good order of the Australian community. The applicant, represented by counsel, contested this decision and sought review by the Tribunal. The central legal issue was whether the grounds for visa cancellation were satisfied and, if so, whether the visa should indeed be cancelled.

The Tribunal meticulously examined the statutory provisions and the case law to determine if the ground for cancellation was met. The Tribunal found that the statutory language required the Minister to be satisfied that the applicant’s presence in Australia posed a risk to the community, without the need for a mandatory cancellation under Section 116(3). The Tribunal also considered the applicant’s circumstances, including his criminal history, the impact of his offending on his partner and children, his efforts towards rehabilitation, and the effect of visa cancellation on his family. The Tribunal highlighted the applicant's reduced alcohol consumption, completion of rehabilitation courses, and absence of further offending as significant positive factors.

In weighing these factors against the risk posed by the applicant's criminal history, the Tribunal concluded that the discretion to cancel the visa should not be exercised. The Tribunal found that the applicant's ongoing rehabilitation, his role in supporting his family, and the best interests of his children, including one child with developmental disorders, were compelling considerations. The Tribunal also noted the applicant's length of residence in Australia and his established support network. Ultimately, the Tribunal decided that the decision to cancel the visa should be set aside, finding that the discretionary factors outweighed the risk posed by the applicant's past criminal activities.

The Tribunal’s decision was grounded in a comprehensive assessment of the applicant’s personal circumstances and the broader implications of visa cancellation on his family. The Tribunal’s careful consideration of the statutory requirements and the discretionary factors led to the conclusion that the visa cancellation was not warranted in this case. The Tribunal ordered that the primary decision be set aside, effectively reinstating the applicant's visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 October 2019 to cancel the applicant’s Subclass 444 (Special Category) visa under s 116 of the Migration Act 1958 (Cth) (the Act).Background The applicant is [applicant name] who is a [Age]-year-old New Zealand national who first arrived in Australia on his own as a [Age]-year-old to look for work [in] September 2013. [Applicant name] is referred to as the applicant in these reasons for decision. The applicant departed Australia for four months in January to May 2014 travelling to [Country] for his [birthday] and returning to New Zealand for a week. In October 2016 the applicant met [Ms A] who is a [Age]-year-old New Zealand national. [Ms A] was born in Australia to New Zealand citizen parents but thought she may hold dual Australian and New Zealand citizenship. [Ms A] told the Tribunal she thought her children may also hold dual Australian and New Zealand citizenship. The applicant and [Ms A] departed Australia [in] October 2017 and stayed in New Zealand for 11 days, returning to Australia [in] November 2017. Neither has departed Australia since. [Ms A]’s Australian government movement records state when she last entered Australia [in] November 2017 she was granted a Special Category Subclass 444 visa at that time. The Tribunal is satisfied [Ms A] is a New Zealand citizen. The applicant and [Ms A] told the Tribunal their relationship became exclusive on or around February 2017. Since then, the applicant and [Ms A] have had three children together:·[Master B] born in [Year];·[Miss C] born in [Year]; and ·[Master D] born in [Year]. [Ms A] also has a child, [Master E], aged [Age], when [Ms A] was in a relationship with [Master E]’s father. [Master E] lives predominantly with [Ms A] and the applicant.The primary decision The applicant provided the Tribunal with a copy of the primary decision. The delegate cancelled the visa under s 116(1)(e)(i) of the Act which provides:Section 116 Power to cancel(1) Subject to subsections (2) and (3)[1], the Minister may cancel a visa if he or she is satisfied that:…(e) the presence of its holder in Australia is or may be, or would or might be, a risk to:(i) the health, safety or good order of the Australian community or a segment of the Australian community; or(ii) the health or safety of an individual or individuals… . (emphasis in original)[1] These subsections are not relevant for present purposes. The delegate cancelled the visa under s 116(1)(e)(i) on the basis that the applicant’s criminal offending in Victoria meant the applicant’s presence in Australia is or may 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.Tribunal hearing The applicant appeared before the Tribunal on 17 December 2024 to give evidence and present arguments in person. The Tribunal also received oral evidence from [Ms A] who also appeared in person.Procedural matters in this review

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.CONSIDERATION OF CLAIMS AND EVIDENCE 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). The Migration Regulations 1994 (Cth) (the Regulations) may prescribe circumstances in which a visa is not to, or must, be cancelled: s 116(2) and (3). Further, the Regulations may prescribe matters to which the Minister must, must not, or may, have regard in determining whether a ground for cancellation is made out under s 116(1), (1AA), (1AB) or (1AC), and the weight to be given to such a matter: s 116(1A). If satisfied that the ground for cancellation is made out, and any circumstances prescribed under s 116(2) or (3) are not applicable, the decision maker must proceed to consider whether the visa should be cancelled. In determining whether the visa should be cancelled, the decision-maker must have regard to all relevant circumstances, which may include matters prescribed under s 116(1A) and other matters of government policy.Does the ground for cancellation exist? A visa may be cancelled under s 116(1)(e)(i) 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. If a visa may be cancelled under s 116(1)(e), prescribed circumstances may also exist in which a visa is not to, or must, be cancelled: s 116(2) and (3). There are currently no prescribed circumstances that apply. The words ‘may’ or ‘might’ do not contain different levels of possibility; they relate to different contexts: ‘may’ if the visa holder is in Australia; ‘might’ if he or she were to come into Australia in the future: Djokovic v MICMSMA (2022) 289 FCR 21 at [37]. The same can be said for the words ‘is’ and ‘would’. The expression ‘good order of the Australian community’ is not defined in the Act. In Tien v MIMA (1998) 89 FCR 80, 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. The applicant does not accept that his presence in Australia is or may be a risk to the health, safety or good order of the Australian community or a segment of the Australian community. The applicant told the Tribunal that his criminal offending has lessened since he has become a father to his children and he has reduced his consumption of alcohol, the influence or effects of which he accepts has been a common feature of his criminal offending, to mainly drinking on weekends.

Decision

Reasons for decision

[Ms A] also has a child, [Master E], aged [Age], when [Ms A] was in a relationship with [Master E]’s father. [Master E] lives predominantly with [Ms A] and the applicant.The primary decision The applicant provided the Tribunal with a copy of the primary decision. The delegate cancelled the visa under s 116(1)(e)(i) of the Act which provides:Section 116 Power to cancel(1) Subject to subsections (2) and (3)[1], the Minister may cancel a visa if he or she is satisfied that:…(e) the presence of its holder in Australia is or may be, or would or might be, a risk to:(i) the health, safety or good order of the Australian community or a segment of the Australian community; or(ii) the health or safety of an individual or individuals… . (emphasis in original)[1] These subsections are not relevant for present purposes. The delegate cancelled the visa under s 116(1)(e)(i) on the basis that the applicant’s criminal offending in Victoria meant the applicant’s presence in Australia is or may 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.Tribunal hearing The applicant appeared before the Tribunal on 17 December 2024 to give evidence and present arguments in person. The Tribunal also received oral evidence from [Ms A] who also appeared in person.Procedural matters in this review The Department served a Notice of Intention to Consider Cancellation of a visa (NOICC) on the applicant on 6 September 2019 and that NOICC was returned to the Department marked return to sender. As noted above, the applicant’s visa was cancelled on 29 October 2019 by letter sent to the same address as the NOICC. The letter from the Department to the applicant, also dated 29 October 2019, notifying the applicant of the delegate’s decision, contains what has come to be known as the Parata defect. The Full Federal Court case of Parata [2021] FCAFC 46 was decided in March 2021 and established that where notification of cancellation of a visa mentions only that the cancellation decision could be reviewed and did not mention under which Part of the Migration Act those review rights arose, then such notices were defective and the time for the lodgment of applications for review with the Tribunal does not commence to run until valid notification is given. Parata also confirmed that the failure to give proper notice of the applicant’s review rights from the primary decision does not affect the validity of the primary decision: s 127(3) of the Act. The Tribunal has checked the letter of notification dated 29 October 2019 that accompanied the Notice of Decision to cancel the applicant’s visa of the same date. The Tribunal is satisfied the letter notifying the applicant was defective because it stated “The decision to cancel your visa can be reviewed” only and fails to state whether the applicant’s review rights arose under Part 5 or Part 7 (as it then was) of the Act.

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in 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 power to cancel the visa should be exercised. Consideration of discretion 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 Procedural Instruction titled ‘General visa cancellation powers’. The Tribunal has considered all of the applicant’s circumstances including the oral evidence of the applicant and [Ms A] and their written statements and the supporting statements of friends and colleagues. The Tribunal uses the headings from the Department’s Procedural Instruction for convenience only.The purpose of the applicant’s travel to and stay in Australia, including whether the applicant has a compelling need to or remain in Australia The applicant told the Tribunal that he arrived in Australia from New Zealand as a 17-year-old to pursue work opportunities and has been continuously employed in construction and more recently in warehousing since arriving, including working throughout the COVID-19 global pandemic. The applicant told the Tribunal he is the [birth order] of [number] children, with his eldest sibling aged in their mid-[decade]’s. The applicant’s evidence is he lived on his own with his mother for three or four years when he was young and is not close to his siblings, speaking to them on average once per year save for one sister to whom he speaks three or four times a year. The applicant told the Tribunal his siblings all live in New Zealand but are spread out across New Zealand. The applicant’s evidence is supported by his Australian government movement records which record that the applicant has only returned to New Zealand twice since first arriving in Australia in September 2013. The Tribunal finds that the applicant’s purpose in travelling to Australia, to pursue work and a stable lifestyle, continues to subsist at the time of this decision. The Tribunal finds this aspect of this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this aspect some weight. The applicant claims he has a compelling reason to remain in Australia: to raise and support his family being [Ms A] and their four children. Neither the applicant nor [Ms A] were certain about the citizenship status of their children, particularly given [Ms A]’s claim she may be a dual Australian and New Zealand citizen. The applicant provided birth certificates for the youngest three children, who were all born in Australia. The Tribunal notes that both the applicant and [Ms A] are in Australia as holders of Special Category (Subclass 444) visas which indicates to the Tribunal they are both New Zealand citizens only and their children are New Zealand citizens.