Nevili (Migration)

[2018] AATA 2658

Nevili (Migration) [2018] AATA 2658 (2 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Keti Junior Nevili

CASE NUMBER:  1808528

HOME AFFAIRS REFERENCE(S):           BCC2017/1519899

MEMBER:Kira Raif

DATE:2 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 02 July 2018 at 4:29pm

CATCHWORDS

Migration – Cancellation – Special Category (Temporary) (Class TU) – Subclass 444 (Special Category) visa – Risk to the safety and good order of the Australian community – Charged and convicted with a range of offences – Latest conviction stealing from a person – Incidents not a one off – Applicant easily influenced by peers – Degree of hardship – Separation from immediate family members – Wants to help support Mother and younger siblings – Decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s116

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 5 July 2017 made by a delegate of the Minister for Immigration and Border Protection 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 July 1999. He was granted the Special Category visa on 7 October 2014. On 7 June 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) under s.116(1)(e) of the Act and the applicant’s visa was cancelled. The applicant sought review of the delegate’s decision and the Tribunal (differently constituted) affirmed the delegate’s decision in July 2017. The matter was remitted by the court.

3. The applicant appeared before the Tribunal on 2 July 2018 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   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 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].

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 on 18 April 2017 the applicant was charged with the offence of ‘robbery armed with an offensive weapon’. The primary decision record refers to the NSW police report which indicates that on 7 April 2017 the applicant and three friends attended a brothel and the applicant later returned alone. The manager of the brothel, who is the alleged victim, allowed entry to the applicant but told him there were no more girls available. The applicant pulled a knife and pointed it at the alleged victim and demanded to be given all the money on the premises. The applicant is said to have jabbed the knife in the victim’s direction several times and later fled the venue. The applicant was arrested on 18 April 2017 at his home address. The applicant’s oral evidence to the Tribunal is that the charge of armed robbery was downgraded to the charge of stealing from a person and he was convicted and sentenced to up to 8 months’ probation.

8. The primary decision record and the bail report subsequently produced by the applicant, indicate that the applicant has previously been charged with a number of other offences:

   a.17/11/14  

   destroy or damage property   dismissed

   b.22/12/14  

   robbery  withdrawn

   c.24/02/16  

   affray  6 months bond

   d.25/07/16  

   common assault  9 months good behaviour bond
   Stalk / intimidate intend fear physical harm             9 months good behaviour bond
   Breach of bail (5 counts)
   Goods in personal custody suspected being stolen    dismissed / cautioned
   Enter vehicle / boat without consent of owner / occupier dismissed / cautioned
   Larceny   dismissed with caution

   e.30/10/16          

   enter vehicle without consent of owner / occupier     6 months bond

   Breach of bail

   f.12/12/16  

   common assault  dismissed

   Robbery armed with an offence weapon                 dismissed

9. It appears that the visa applicant did not respond to the NOICC. In his evidence to the Tribunal the applicant outlined his family circumstances, noting that his parents had separated. The applicant states that after coming to Australia, he made friends who encouraged him to engage in criminal behaviour. The applicant presented a number of statements in support of his application.

10. The Tribunal has considered the applicant’s evidence, including his written submission to the first Tribunal of 3 October 2017. The applicant provided the Bail Report noting that many of the earlier charges had been dismissed or withdrawn. The submission indicates that the applicant pleaded guilty to the robbery and received a sentence of 4 months in custody and 8 months on parole, which is the only custodial sentence he received. The applicant notes that he has not committed any offences as an adult.

11. The Tribunal has also had regard to the psychological report from Ms Hopkins. The report outlines the applicant’s background and present circumstances. Ms Hopkins refers to the applicant using alcohol and drugs. The applicant reports he has not consumed alcohol from 2016 until 2017 when he engaged in conduct that led to the more recent charges. Ms Hopkins indicates that ‘it does not appear’ that the applicant has a ‘proclivity for violence’ but refers to his malleability.

12. The applicant provided a number of supporting statements from family, community members and organisations. The Tribunal has given these due regard and accepts that those who provided statements believe the applicant to be a good person. The Tribunal notes that none of the applicant’s family members attended the hearing.

13. The applicant’s oral evidence to the Tribunal is that he was young when he committed the offences and he is now more mature. The Tribunal does not accept that evidence, noting that the most recent offence occurred only a year ago. The Tribunal does not accept that the applicant is more mature now than he was a year earlier. The applicant also told the Tribunal that he has learned a lot since he has been in detention and around more mature people. The Tribunal is mindful however, that the applicant has previously spent time in juvenile detention, so being in detention does not appear to have affected his behaviour as he continued to offend. The applicant told the Tribunal that he has been around older people and before he was influenced by the ‘bad crowd’. The applicant told the Tribunal that these friends he was with before have not contacted him while he was in detention and when he is released, he will stay with his father and move to a different area. The Tribunal acknowledges that the applicant’s evidence is consistent with Ms Hopkins’ report which refers to the applicant’s ‘malleability’ but if the applicant’s evidence is that he is easily influenced by others, the Tribunal is not satisfied that the applicant will be any less affected by such influence in the future, whichever area he lives in. The fact that he did not have contact with his former friends during his detention at Villawood Immigration Detention Centre is no indication that such contact will not occur in the future and the Tribunal is not satisfied the applicant will have the ability to withdraw from bad friendships or bad influences.  

14. The Tribunal has had regard to the evidence before it. The Tribunal notes that the applicant has been charged with several offences although many of the charges have been dismissed or withdrawn. Nevertheless, there are a number of convictions. On the applicant’s own evidence, he was convicted in relation to the most recent charge, albeit for a lesser crime, and given a custodial sentence and he had been convicted of other serious charges in previous years. The Tribunal acknowledges the applicant’s evidence that he is reformed and is now more mature, however, the Tribunal is also mindful of the information provided in Ms Hopkins’ report which appears to suggest that the applicant engaged in criminal conduct when consuming alcohol and that even though he ceased alcohol consumption in 2016, he resumed again in 2017, which resulted in additional charges and subsequent convictions. Ms Hopkins also refers to the applicant being ‘malleable’ and that suggests he may be easily influenced by others. In his evidence to the first Tribunal the applicant referred to going out with the ‘boys’ and being led by the ‘boys’. The Tribunal is concerned that even if the applicant has made a genuine commitment to reform and not to engage in criminal conduct in the future, he may find it difficult to do that if he is influenced by others to either behave in a particular way or to consume alcohol which may lead to such behaviour.

15. The Tribunal places weight on the fact that the convictions representing criminal or anti-social behaviour occurred over a period of time. This was not a one off incident when the applicant realised he was doing wrong and changed his conduct. He had engaged in such conduct repeatedly without apparently making any attempt to reform. The Tribunal also notes that the most recent conviction is a very serious one when the applicant appears to have used a weapon to commit robbery. While the Tribunal acknowledges the applicant’s evidence to Ms Hopkins that he never used weapons before and is not a violent person, it appears that the applicant had diminished control over his actions when intoxicated.

16. The Tribunal considers the conduct that lead to the convictions to be very serious. The fact that such conduct occurred over a number of years, the applicant repeatedly engaged in criminal behaviour and the nature of his conduct involved violence towards another person, all suggest to the Tribunal that the applicant’s presence in Australia is or may be a risk to the good order of the Australian community or a segment of the community.

17. The Tribunal is satisfied 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 Australian community. 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

18. 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

19. The purpose of the Special Category visa is to enable the visa holder to live in Australia. The applicant’s evidence is that he used to live with his grandmother who decided to return to Samoa and at that time he moved to Australia to stay with his biological parents. The applicant last entered Australia in October 2014 and he told the Tribunal that since arriving in Australia he only travelled overseas once.

20. The applicant told the Tribunal that he is the oldest child in the family and his mother is looking after his siblings. He wants to help his mother take care of the siblings. The applicant said that his father pays child support but he does not know if the father has any contact with his siblings. The Tribunal accepts that the applicant’s parents and siblings reside in Australia. The Tribunal accepts that the cancellation of the visa would preclude the applicant’s ability to remain in Australia with his family, unless he is granted another visa. The Tribunal acknowledges that the presence of his family may constitute a compelling need for the applicant to remain in Australia.

    The extent of compliance with visa conditions

21. There is no evidence that the applicant failed to comply with any visa conditions.

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

22. The applicant’s evidence, and it is also the evidence of his mother, is that the family would be adversely affected by the cancellation. The evidence of the applicant’s mother to the first Tribunal is that the applicant works to pay the rent for the family home and performs domestic duties and provides transport for his younger siblings. The evidence is that the applicant’s parents have separated and the applicant is the oldest child in the family and with his absence, the younger children will lose that family support.

23. The applicant told the Tribunal that his father has left the family home and he wants to support his younger siblings as the eldest child. He wants to support his mother financially, as she has limited income. The Tribunal accepts that the applicant had provided financial support to his mother before and that he wants to continue to do that in the future. The Tribunal is mindful, however, that the applicant has been in detention for some time and in juvenile detention previously and despite his detention and inability to earn, there is no evidence of financial hardship to the family. The applicant also confirmed in oral evidence that he may be able to provide financial support to his mother if he returns to New Zealand and finds a job there.

24. The applicant claims that he wants to take his young brother to training. The Tribunal accepts that the applicant wants to be a role model for his siblings and the Tribunal accepts that the applicant plays a meaningful role in the family and for his younger siblings. The Tribunal accepts that the applicant’s parents and siblings may be affected by the cancellation of his visa. The Tribunal accepts that considerable hardship may be caused to the family if the applicant was required to leave Australia as a result of the cancellation of his visa, although the Tribunal is also mindful that the applicant did not reside with his family until his entry to Australia in 2014 and alternative arrangements had been made. The Tribunal acknowledges that since that time the parents have separated and the Tribunal accepts that the family relies on the applicant financially, physically and emotionally.

25. The applicant provided to the Tribunal evidence of having completed his secondary schooling and other training courses while in detention. The applicant states that he wants to return to training. The Tribunal accepts that evidence although the Tribunal is of the view that employment and sporting opportunities may also be available to the applicant even if his visa is cancelled and if he is required to return to New Zealand.

26. The applicant told the Tribunal that his entire family is in Australia except for his grandmother who has now moved to Samoa. The applicant states that his grandmother took him when he was very young and he lived with her until he came to Australia. The applicant referred to having a relationship in Australia, although no evidence of the relationship has been presented. The applicant states that he has no family in New Zealand but he has a close friend in New Zealand and if he was to live in New Zealand, he would stay with a friend and try to look for a job. The Tribunal accepts that the applicant’s immediate family live in Australia and he has no close family in New Zealand. The Tribunal is mindful that the applicant is an adult and capable of independent living. The applicant’s own evidence is that he has social support in New Zealand and should be capable of obtaining a job in New Zealand and providing financial support to his family in Australia. Nevertheless, the Tribunal accepts that considerable hardship may be caused to the applicant and his family as a result of his visa being cancelled.

    Circumstances in which ground of cancellation arose

27. The grounds for cancellation arise because the Tribunal has formed the view that the applicant’s presence to Australia is or may be a risk to others. In his written submission to the Tribunal the applicant argues that the conduct occurred during a difficult period in his life, the extended family he knew was no longer there and he moved to a new country and an unknown environment. The applicant refers to the break-up of his parents’ relationship and the effect it has had on the decisions he has made. The applicant notes that he was given non-custodial sentences and a minimal custodial sentence in relation to the last offence, indicating that the judges saw fit to return him to the community.

    Past and present behaviour of the visa holder towards the Department

28. Nothing adverse is known about the applicant’s past and present behaviour towards the Department. In his written submission to the Tribunal the applicant refers to having poor literacy skills and his inability to respond to the NOICC. No adverse conclusion is drawn from that fact.

    Whether there would be consequential cancellations under s.140

29. 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, 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

30. 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. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention. Although the Tribunal accepts that in relation to most visa categories, the applicant may be subject to an exclusion period in Public Interest Criterion (PIC) 4013 or Special Return Criterion (SRC) 5002, the Tribunal also notes that it may be possible for the applicant to depart Australia voluntarily to avoid being removed and the exclusion under SRC 5002.

    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

1. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations would be breached as a result of his visa being cancelled. The Tribunal finds on the evidence before it that Australia’s non-refoulement obligations would not be breached as a result of the cancellation.

2. The applicant states in his written submission to the Tribunal that he was a child when the offences were committed but in the Tribunal’s view, the consideration here relates to the time when the delegate (or the Tribunal on review) is considering the international obligations and not the time when the offences were committed. The applicant is now over the age of 18.

3. The applicant has no children, but he claims his younger siblings would be affected by the cancellation of the visa. In his written submission to the Tribunal the applicant refers to the International Covenant on Civil and Political Rights (ICCPR) and Convention on the Rights of the Child (CROC). The Tribunal accepts that the applicant played a significant role in the family, which included the support for his younger siblings. The Tribunal accepts the applicant views himself as a role model and considers it his obligation to provide support to his younger siblings. The Tribunal acknowledges the written statements from the family that had been provided to the first Tribunal. However, the Tribunal is also mindful that since his entry to Australia the applicant engaged in criminal and anti-social conduct and his actions may not have provided a positive example to his younger siblings. The Tribunal also notes the applicant’s evidence that if he is released from detention, he plans to live with his father in a different area. In the circumstances of this case, the Tribunal is not satisfied the best interests of the applicant’s minor siblings would be best served by the applicant’s presence in Australia.

4. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant’s presence in Australia is or may be a risk to the Australian community or a segment of the community.

5. The Tribunal acknowledges that the applicant has been living in Australia for about four years and is well settled in this country. The Tribunal acknowledges that the applicant has no close family in New Zealand and that his immediate family is in Australia and the Tribunal accepts that he has a close connection to his parents and siblings, sees himself as a provider and that the applicant and his family may be adversely affected if the applicant was to leave Australia. The Tribunal accepts that emotional, psychological and financial hardship may be caused to the applicant and his family in Australia as a result of the cancellation. The Tribunal also acknowledges that the applicant has expressed remorse for his actions and has indicated he will not re-offend. Nothing adverse is known about the applicant’s conduct towards the Department. The Tribunal acknowledges there are reasons why the visa should not be cancelled.

6. Against these considerations, the Tribunal notes that the applicant has a lengthy history of offending. His offences are serious in nature and on occasions, involved violence towards other people. This conduct has continued for a number of years. The Tribunal does not accept the applicant’s claims that he is now more mature or that he will no longer associate with the ‘bad boys’. The Tribunal is concerned that if the applicant – who appears to be easily influenced by others – again associates with such people, it may lead to future re-offending. The Tribunal acknowledges that the applicant will have little support in New Zealand but as an independent adult, the Tribunal has formed the view that he will be able to re-establish his life in his home country and on his own evidence, he has good prospects of finding a job and providing financial support to his mother. He will be able to maintain electronic contact with his family and his siblings in Australia. The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation.

7. In the Tribunal’s view, the circumstances in which the ground for cancellation arises – which includes considerable criminal conduct – outweigh the grounds for not cancelling the visa. The Tribunal would form the same conclusion even if the best interests of the children would be for the applicant to remain in Australia with his family. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   Kira Raif
   Senior Member