Nauer (Migration)

[2018] AATA 1097

Nauer (Migration) [2018] AATA 1097 (6 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Daniel Danees Nauer

CASE NUMBER:  1803105

DIBP REFERENCE(S):  BCC2017/3654830

MEMBER:Kira Raif

DATE:6 April 2018

PLACE OF DECISION:  Sydney

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 06 April 2018 at 2:45pm

CATCHWORDS
Migration – Cancellation – Special Category (Temporary) (Class TY) – Subclass 444 (Special Category) visa –  Criminal history –  Charged with a number of offences – Domestic violence offences – Offence committed during a period of financial stress – Degree of hardship – Separation from family – Strong social links to Australia – Best interests of the children to be near the applicant – Complied with visa requirements – Cooperative with the Department

LEGISLATION
Migration Act 1958, ss 116,140

CASES
Tien v MIMA (1998) 89 FCR

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 24 January 2018 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 444 (Special Category) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of New Zealand born in March 1978. He was granted the visa and last entered Australia on 6 January 2015. On 13 November 2017 the delegate issued the applicant with the Notice of Intention to Consider Cancellation (NOICC) under s.116(1)(e) of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 24 January 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 5 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, daughter and two other witnesses. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. 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.

5. A visa may be cancelled under s.116(1)(e) if the Minister or the Tribunal 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.

6. 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.

   Does the ground for cancellation exist?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted the special category Subclass 444 visa on 6 January 2015. In October 2017 the Department of Immigration received information that the applicant has been charged with a number of offences specified below.

   a.Failure to appear in accordance with undertaking (20/7/17)

   b.Stealing (between 1/5/16 and 13/7/16)

   c.Fraud – dishonesty to gain benefit / advantage (between 9/5/16 – 19/7/16)

   d.Fraud – dishonesty to gain benefit / advantage (between 28/5/16 and 19/7/16)

   e.Unlawful use of motor vehicle aircraft or vessel (between 15/7/16 and 24/7/16)

   f.Stealing (12/3/16)

   g.Fraud – dishonestly obtains property from another (12/3/16)

   h.Fraud – dishonestly obtains property from another (between 28/7/16 and 6/8/16)

   i.Fraud - dishonestly obtains property from another (between 26/5/16 and 28/8/16)

   j.Stealing (between 25/5/16 and 6/10/16)

   k.Fraud - dishonestly obtains property from another (between 12/7/16 and 9/9/16)

   l.Fraud - dishonestly obtains property from another (between 5/10/16 and 19/10/16)

   m.Fraud - dishonestly obtains property from another (on 5/7/16)

   n.Fraud - dishonestly obtains property from another (on 5/7/16)

   o.Breach of bail conditions (on 23/2/17)

   p.Fraud - dishonestly obtains property from another (on or about 31/3/17)

   q.Contravention of domestic violence order (27/5/17)

   r.Breach of bail conditions (on 2/5/17)

   s.Fraud - dishonestly obtains property from another (between 15/5/16 and 27/7/16)

   t.Breach of bail condition (on 8/6/17)

   u.Unlawful use of motor vehicle aircraft or vessel (on 5/8/27)

   v.Fraud - dishonestly obtains property from another (on 7/7/17)

   w.Fraud – dishonesty gain benefit / advantage (on 7/7/17)

   x.Fraud – dishonesty gain benefit / advantage (on 4/7/17)

   y.Contravention of DV Order (on 28/8/17)

   z.Contravention of DV Order (on 11/8/17)

   aa.Failure to appear in accordance with undertaking (on 8/9/17)

   bb.Contravention of DV Order (aggravated offence) on 21/9/17

   cc.Wilful damage – domestic violence offence (on 21/9/17)

   dd.Unlawful use of motor vehicle aircraft or vessel (on 14/9/17)

8. The primary decision record also refers to additional charges and the following outcomes.

   a.obtaining money by deception – fine $800.

   b.Contravention of DV Order (10/3/17) – no conviction recorded, fine $500

   c.Failure to appear in accordance with undertaking (28/12/16) – no conviction recorded. Fine $500

   d.SOA commit public nuisance (17/8/07), no conviction recorded. Recognisance $150 to be of good behaviour for 6 months

9. The primary decision record indicates that as a result of the applicant’s previous behaviour, a domestic violence order (DVO) has been in place and he has been charged with contravening the order in multiple occasions.

10. The applicant claims in his written submission to the delegate that his wife applied to have the DVO removed to enable them to live together as a family. The Tribunal acknowledges that it is not uncommon for victims of domestic violence to maintain the relationships and the Tribunal is prepared to accept that the applicant’s partner wishes to do that, but that does not detract from the fact that the applicant acted violently towards his partner and on several occasions contravened the DVO. The fact that he and his partner wish to live together cannot guarantee that the same conduct will not occur in the future.

11. The applicant also claims that the domestic violence offences occurred when he was under financial pressure and there was pressure at home. The Tribunal accepts that this may have been the case but that suggests that the applicant has poor skills in managing his behaviour when he is under pressure. There will no doubt be situations in the future when he will feel under pressure, whether financial or other, and he will experience tension and arguments at home. The Tribunal is not satisfied that the applicant will handle such situations any differently in the future.

12. The applicant submits that his charges are minor and do not involved violent offences. The Tribunal does not consider the charges to be minor and the Tribunal also does not accept that the risk to the community or segments of the community can only be established through violence. The applicant has been charged with a multitude of fraud offences occurring over several months and the repeated nature of such offences does, in the Tribunal’s view, establish that the applicant’s presence is or may be a risk to the community. The applicant also suggests that the domestic violence offences relate to heated verbal arguments and not violence but, again, the Tribunal does not consider that a person can only be made to feel fearful or intimidated or apprehensive about one’s safety or well-being as a result of physical violence. That effect can be reached through verbal altercations. The Tribunal is of the view that the initial DVO represents an assessment of risk that the applicant’s presence posed to the protected person while the multitude of the domestic violence offences, including repeated breaches of the DVO, indicate the applicant’s willingness to engage in such conduct and lack of self-control.

13. The applicant’s representative provided a lengthy submission to the Tribunal, exceeding 100 pages, on the evening of 4 April. As the hearing was scheduled for 8.30 am on 5 April, the late provision of arguments and supporting material was less than helpful. No explanation is offered by the applicant’s representative for the extremely late submission of documents or for failure to comply with paragraph 5.1 of the AAT Practice Directions on Migration and Refugee Matters. The Tribunal is mindful that the application for review was lodged with the Tribunal in early February 2018 and the applicant was represented by the same agent throughout the process. The applicant was represented by Samuta McComber Lawyers.

14. In his submission to the Tribunal the applicant argues that his presence in Australia is not a risk to the health and safety of any individual. The applicant concedes that he has been found guilty of multiple contraventions of a DVO in relation to his partner and that he has been charged with domestic violence related wilful damage.

15. The applicant claims that his partner does not perceive his continuous presence in Australia as a risk to her health and safety and she wishes to continue to live with the applicant and their children. The Tribunal does not consider that the partner’s personal perceptions about the risks involved define the ground for cancellation. She may not feel the applicant’s presence in Australia is a risk to her safety but that is a finding for the Tribunal. Given the numerous incidents of family violence and the multiple breaches of the family violence protection orders, the Tribunal does consider that the applicant’s behaviour indicates his presence may be a risk to his partner and, more broadly, to another segment of the community such as women in general.

16. The applicant claims that his domestic violence offending began in the context of drug dependency, which he sought to address by engaging in rehabilitation programs which he intends to continue and for which he has community support. The applicant also refers to the stress induced by threats of violence made against him and his family by unlicensed lenders and the loans have now been satisfied. The applicant claims that since these factors no longer apply, he is in a positon to return to being the kind and loving husband he was before his drug addiction. The applicant notes that there was no domestic violence in his relationship between 1995 and 2015.

17. The applicant claims that none of the other charges relate to his conduct towards his partner and cannot give rise to satisfaction that his presence in Australia would be a risk to his partner. The Tribunal does not accept that argument. The applicant’s persistent criminal behaviour represents a general disregard for the law and the well-being of others. In the Tribunal’s view, such conduct does suggest that the applicant’s presence in Australia may be a risk to the good order of the Australian community. Insofar as the applicant argues that the delegate did not consider grounds other than a risk to the safety of the applicant’s partner, the Tribunal is not bound by the grounds for cancellation on which the delegate relied. 

18. In oral evidence the applicant said that the fraud charges relate to his business ‘going down’. The applicant said that he had decided to run his own business and things were not going well financially and he approached loan sharks. The applicant said that fraud charges relate to customers complaining that he was charging for work that he has not done in his workshop. With respect to stealing, the applicant said that the loan sharks had taken cars from his workshop while he was overseas and he had no control over it. With respect to the unlawful use of a motor vehicle, the applicant said that he paid for it with a credit card but did not have sufficient funds. He said that the family violence was a consequence of him using an illicit drug.

19. The applicant said with respect to the domestic violence, that once his business was not going well, he and his partner started arguing and they decided to separate so the children would not see them arguing. The applicant said that his partner made a statement to the police that he had hit her, but that was incorrect and there was only a loud argument. The DVO was issued as a result. In relation to the conviction for the breach of the DVO, the applicant claims that he decided to plead guilty on advice of his lawyer so that his partner and children could visit him on remand. The applicant said that the first DVO was issued around January 2016 and he was given a 12 months good behaviour bond. There was another DVO in place but he said his partner is seeking to have it removed, although it has not happened yet. (The partner’s evidence to the Tribunal is that the DVO has been varied.) The applicant said he has spent six months in remand for the breach of the DVO and failure to appear while on bail.

20. With respect to drugs, the applicant said that he was using illicit drugs because his business was not doing well. Since then he has done some courses while in detention and he does not intend to take drugs anymore. He has not used drugs for eight months. With respect to domestic violence, the applicant said that he and his partner have talked about it and he has done courses at the detention centre, but he has not done any programs since January 2016, when the first DVO was issued.

21. The Tribunal acknowledges that a number of character references have been submitted in support of the application, including in oral evidence to the Tribunal. Ms Stanley, who gave oral evidence to the Tribunal, spoke of the applicant being a good person and of his involvement in community activities.

22. The Tribunal finds that the applicant has been charged with multiple offences involving fraud. The applicant has been issued with the DVO because it was considered necessary to have a formal order in place to protect his partner. Although the applicant claims he never hit his partner, he concedes that she may have been threatened by his conduct. The multiple breaches of the protection order indicate the applicant’s disregard for the law. The applicant claims that he went to see his children and did not realise he was not allowed to, the Tribunal does not accept that the applicant was not aware of the terms of the DVO and that he did not appreciate that his conduct was contrary to its requirements. The Tribunal finds that the applicant has willingly breached the law, on multiple occasions, and that he has little regard for it.

23. The Tribunal finds that the applicant’s presence in Australia is or may be a risk to the safety of the Australian community or a segment of the community (women) or the health or safety of individual (the applicant’s partner). The Tribunal is satisfied that the ground for cancellation in s.116(1)(e) exists.

24. 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

25. There are no matters specified in the Act or Migration Regulations 1994 that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including, but not limited to, matters identified 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

26. The applicant claims he has been living in Australia since 2001. His last entry to Australia was in 2015. He has a partner and five children in Australia and his last entry to Australia was to enable the applicant to be with his family and to provide for his children through better employment and study opportunities. The applicant’s five children are aged 20, 17, 15, 11 and seven. Three of his children are Australian citizens. The Tribunal accepts that the applicant is fulfilling that purpose. The Tribunal also accepts that the presence of the applicant’s family in Australia may constitute a compelling need for him to remain in Australia.

    The extent of compliance with visa conditions

27. Nothing adverse is known to the Tribunal about the applicant’s compliance with visa conditions.

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

28. The applicant has been living in Australia for over fifteen years. His partner and five children live in Australia and three are Australian citizens. The applicant claims that if he cannot stay in Australia, he will be separated from his family because he does not believe they would travel to New Zealand with him. The applicant’s and his partner’s evidence to the Tribunal is that they are not sure whether the family would relocate to New Zealand, if the visa is cancelled, but doing so would be difficult for the children who would have to give up their study and everything they are familiar with.

29. The applicant claims that his immediate family lives in Australia and he sees his own future in Australia. The applicant claims that his family, including his siblings, would be affected if he was required to leave Australia.

30. The applicant states in his written submission to the Tribunal that he has been living in Australia for over 16 years and has been consistently employed and has strong social links. The applicant refers to sponsoring his son’s football team and a netball association. In oral evidence the applicant claims he has been the main breadwinner for the family and his partner has limited experience and only works on a casual basis. He has always provided for his family and put his children through private schools. The Tribunal accepts that evidence and accepts that the applicant has strong social and family ties in Australia. The Tribunal accepts the evidence of the applicant’s partner that she has been supported by the applicant and continues to rely on him for financial and emotional support. The Tribunal accepts that the applicant’s family, including his siblings and extended family, are in Australia and his partner’s siblings also live in Australia. The Tribunal also accepts that the applicant has been employed since his entry to Australia. The Tribunal accepts that such ties may be jeopardised if the applicant was required to leave the country. 

31. The applicant’s evidence to the Tribunal is that the cancellation of his visa would not have the intended effect of protecting his partner from future harm. The applicant submits that it would be futile to cancel his visa because there is a real possibility that his partner and children will relocate to New Zealand and the parties would continue to cohabitate. The Tribunal notes, however, that protection of any individual is not the purpose of provision such as s.116(1)(e). Having found that grounds for cancellation exist, it is not for the Tribunal to determine whether the cancellation of the visa would have the effect of protecting the applicant’s partner. That is the purpose of the DVO that has been put in place and a matter that cannot be resolved under the Act.

1. The applicant claims that his partner and children may relocate to New Zealand but that has not yet been decided. If they do not, then all members of his family will be distressed by the separation of his family. The Tribunal considers the applicant’s evidence problematic, given his argument that it would futile to cancel his visa on the basis that his family would relocate to New Zealand with him and his partner would not be protected as a result of visa cancellation. To then state that the family may not relocate and be distressed by the separation contradicts that argument.

2. The applicant argues that his sons suffered psychologically with changes in mood and behaviour as a result of their separation from the father in November 2017 when he was imprisoned, and such suffering may continue if the applicant was removed from Australia. The Tribunal acknowledges that evidence, although the Tribunal is of the view that the psychological harm may equally be caused by the applicant’s criminal conduct and incarceration and, in particular, family violence – violent conduct towards the children’s mother. That is, it may be that it is the applicant’s behaviour rather than separation that is causing harm to the children. The applicant also claims that if the children were to relocate to New Zealand, they would have to uproot their lives and separate from friends and try to re-establish themselves in a new country they had not been to before. The Tribunal accepts that is the case but the Tribunal also notes that the applicant and his partner made the decision to relocate to Australia some 16 years ago, which would have also involved the uprooting of the family and the young children and the severance of friendships, etc.

   Circumstances in which ground of cancellation arose

3. The applicant states in his submission to the delegate that he had financial difficulties and became trapped in criminal offending to maintain repayments on his debt. The applicant claims that the family violence offences occurred because he was under financial pressure and using illicit drugs which were affecting his behaviour. The applicant claims that he has now paid off the loan with the help of family members and he plans to obtain full-time employment, so the same difficulties will not arise.

4. The Tribunal finds the applicant’s evidence problematic. The applicant submits that he is an experienced tradesman who would have little difficulty finding a job. If the applicant now claims that his engagement in full-time employment – rather than running his own business – would avoid the financial pressures that led to the offending, it is unclear to the Tribunal why the applicant has not taken the same steps before. Nevertheless, the Tribunal accepts that the applicant’s behaviour may have been affected by financial stress and drug use.

   Past and present behaviour of the visa holder towards the Department

5. Nothing adverse is known about the applicant’s past and present conduct towards the Department. The applicant referred to an incident while on remand when he helped a female guard.

   Whether there would be consequential cancellations under s.140

6. There are no persons in Australia whose visas will be subject to cancellation under s.140 of the Act.

   Whether there are mandatory legal consequences

7. If the applicant’s visa is cancelled, and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be an unlawful non-citizen and subject to detention and possible removal from Australia, and he may be subject to an exclusion period, although it does not apply in relation to all visas. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention. The applicant’s evidence to the Tribunal is that he will have no other options to return to Australia due to the exclusion period and other visa restrictions.

   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

8. There is no evidence, and the applicant does not claim, that he would be subjected to any harm if removed from Australia. The applicant does not claim that Australia has any obligation to protect him. The Tribunal does not consider that Australia’s non-refoulement obligations would be breached as a result of the cancellation.

9. The applicant has five children in Australia, four of whom are minors. Some of the children are Australian citizens. The applicant’s evidence is that his children have grown up in Australia and know little else. The applicant states that he has always been a good father and has brought them up well and has given them a good education. He claims it is in the best interest of the children to be with his parents. The applicant’s partner and daughter gave oral evidence to the Tribunal outlining the close relationship they have with the applicant and their desire to be together and for his support to continue.

10. The applicant also refers to being involved with the community and his voluntary activities. The Tribunal accepts that the applicant has made a contribution to the community.

11. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal notes that the applicant has been charged with multiple offences and some of these are quite serious, involving domestic violence and the breach of the domestic violence restriction orders. The applicant has been convicted of a number of offences. On his own evidence, he did breach the DVO by attending his partner’s house to visit his children. The Tribunal has formed the view that the presence of the applicant in Australia may be a risk to others given the nature of the charges and convictions. The Tribunal finds that there are strong grounds why the visa should be cancelled.

12. However, the Tribunal has also taken into account the circumstances in which the ground for cancellation arose. The Tribunal accepts the applicant’s evidence that he was going through a tough period as a result of his business failure and financial stress and that was affected his relationship and his behaviour. The Tribunal accepts that the applicant had taken drugs, which were a significant influence on his conduct. The Tribunal acknowledges that there is no evidence of any criminal or anti-social behaviour before 2016 when these problems arose and both the applicant and his partner spoke about a good relationship they had prior to these events.

13. The Tribunal is prepared to accept that the circumstances that led to the applicant’s conduct arose from the specific facts and the applicant’s inability to deal with the situation. The applicant’s evidence is that he has not taken drugs for over eight months and he has also participated in rehabilitation programs in relation to domestic violence. There are statements from third parties before the Tribunal concerning the applicant’s involvement in such programs and the Tribunal notes the applicant’s undertaking to continue his participation in rehabilitation programs. If he does so, the Tribunal accepts that the possibility of future misconduct would be greatly reduced or negated.

14. The Tribunal acknowledges the applicant’s evidence that his and his partner’s family members are in Australia. Most significantly, he has four minor children in Australia who are involved in Australian school, sports and other activities. The Tribunal accepts that if the applicant’s partner and children were to accompany him to New Zealand, they would give up their lives in Australia and if they were to remain in Australia, the family would be separated. The Tribunal places significant weight in this case on the fact that the applicant appears to have a very close relationship with his children. The Tribunal also notes the applicant’s evidence that the multiple breaches of the DVO relate to him visiting his children, rather than violent conduct. In the Tribunal’s view, the best interests of the children may be best served by being near the applicant, who provides not only emotional support to the family, but is also the main breadwinner.

15. The Tribunal accepts that considerable hardship would be caused to the applicant and his family if the visa is cancelled. The applicant has complied with visa requirements and has been cooperative with the Department.

16. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled. The Tribunal acknowledges that should the applicant be charged with any further offences, or be convicted of any offences, his visa may be subject to cancellation.

    DECISION

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

    Kira Raif
    Senior Member