Paki (Migration)

[2018] AATA 4708

Paki (Migration) [2018] AATA 4708 (11 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Deon Hamiora Paki

CASE NUMBER:  1722920

HOME AFFAIRS REFERENCE(S):           BCC2017/1926944

MEMBER:James Lambie

DATE:11 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 11 October 2018 at 3:29pm

CATCHWORDS
MIGRATION – Cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – risk to Australian community – extensive criminal record – lenience of sentencing – dysfunctional relationship with partner – parenting orders – best interests of children – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116

CASES
Gong v MIBP [2016] FCCA 561

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 September 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 delegate cancelled the visa under s.116(1)(e)(ii) on the basis that Mr Paki’s continued presence in Australia is or may be a risk to the health or safety of an individual or individuals. 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 4 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Patricia Ann Watene, who is the applicant's mother.

4. 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

5. 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)(ii). 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

6. 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].

7. Mr Paki is a New Zealand national resident in Australia on a Special Category  (subclass 444) visa.  He has been resident in Australia since 1980, having arrived at the age of 8.  All of his immediate family are Australian citizens.  He has twin children, aged 9, who live with him and his mother.

8. Mr Paki has quite an extensive criminal record, obtained by the Tribunal from the Queensland Police Service under summons.

Date	Charge	Outcome
15 Feb 2008	Failure to appear in accordance with undertaking (on 18 Dec 2007)	Convicted, fined $400
26 Jun 2008	Common assault; wilful damage x 2 (on 20 Oct 2006)	No conviction recorded, fined $1000
4 Nov 2010	Unlawful possession of weapons; produce dangerous drugs; possess dangerous drugs; possess property suspected of having been used in connection with the commission of a drug offence x 2;  publish or possess instructions for producing dangerous drugs (on 20 Aug 2010)	Convicted, fined $3500
28 Mar 2012	Commit public nuisance (on 4 Mar 2012)	Convicted, fined $500
16 Jan 2013	Failure to appear in accordance with undertaking (on 9 Jan 2013)	No conviction recorded, fined $100
21 Nov 2013	Assaults occasioning bodily harm (on 8 Oct 2013); contravene domestic violence order (on 8 Oct 2013), assault or obstruct police office (on 9 Oct 2013)	No conviction recorded, fined $1000
5 Jun 2014	Failure to appear in accordance with undertaking (on 17 Feb 2014)	Convicted, fined $300
4 Nov 2014	Contravene domestic violence order (on 30 Dec 2013)	No conviction recorded, discharged absolutely
1 Nov 2016	Contravene domestic violence order (on 27 Mar 2016)	Convicted, fined $600
25 Jan 2017	Assault or obstruct police officer (on 17 Jan 2017); wilful damage – domestic violence offence (on 16 Jan 2017)	Convicted, 9 months’ probation
5 Jun 2018	Dangerous operation of a motor vehicle (on 26 Dec 2016); possess tainted property (btw 27 Sep 2017 and 20 Apr 2018)	Convicted, 24 months’ probation, fined $1080, disqualified from driving 12 months.

1. On the face of it, this appears to be a serious criminal record, particularly having regard to the assault, domestic violence, drug and firearms charges.  However, there are several unusual features of it which the applicant was asked about at the hearing.  First, it commenced at the relatively late age of 35.  Mr Paki’s evidence was that this corresponded with the commencement of his relationship with his former partner, who was some 15 years his junior.  The relationship was highly dysfunctional owing, he says, to her mental health problems.  The substance abuse and violence occurred in this context.  The second unusual feature is the apparent lenience of the sentences having regard to the seriousness of some of the charges.  Mr Paki says that this is also reflective of the context in which the offences were committed:  what the court outcomes do not record in relation to the more serious domestic violence offences are the complementary charges against his former partner and her friends.  Further, the penalties against him reflect the courts’ view of his ex-partner’s evidence which, he says, was dramatically overstated.  He says that the light sentence on the drugs and firearms offences takes into account that his involvement in the firearms matter was almost comically misguided and incompetent and that he was undergoing chemotherapy at the time (for which purposes he was cultivating cannabis).  There are a number of technical domestic violence offences arising from his failure to obtain written permission to contact his ex-partner.  The last of the domestic violence offences involved an argument with his mother over her insistence that his ex-partner be allowed to visit their home at Christmas.  The wilful damage charge arose from him punching his own refrigerator in the course of that argument.  His mother gave evidence to the Tribunal supporting his account.  The offence of dealing with tainted property was said to arise from the purchase in good faith of a laptop computer from a retailer in Moranbah which was then foolishly disposed of, rather than handed in to the police, when notified by a police message to the device that it was stolen property.

2. Mr Paki’s evidence of his interactions with his former partner is corroborated to some extent by the parenting orders handed down by the Federal Circuit Court. Those orders are discussed further below.

3. I have given careful consideration to the applicant’s criminal record and his evidence as to the circumstances he wishes to be taken into account.  I give considerable weight to his evidence and that of his mother, which I believe is supported by the sentences imposed and by the parenting order.  Nevertheless, I cannot ignore repeated contraventions of domestic violence orders, especially those accompanied by physical violence and property damage to which his children have been exposed.  There are repeated offences of assault and obstruction of police officers which seem to accompany the domestic violence offences.  On balance, while I consider that there are some mitigating circumstances, I am satisfied that the applicant’s criminal history poses a risk to the health and safety of his mother, children and former partner. 

4. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(ii) 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

5. 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’.

6. Mr Paki came to Australia as a young child and has lived here for some 37 years.  All of his significant family and social relationships are in Australia.  He is employed in Moranbah and is in the process of acquiring the business at which he has had stable employment over the last 3 years.  It is clear that it is his intention to reside permanently in Australia.  Accordingly, I give some weight in his favour in relation to the purpose of his travel to Australia and his subjective need to remain in Australia.

7. There are no conditions attached to Mr Paki’s subclass 444 visa and I can therefore attach no weight to the extent to which he has complied with visa conditions.

8. I have given very careful consideration to the degree of hardship that may be caused to Mr Paki and any family members.  At my invitation after the hearing, Mr Paki submitted the Federal Circuit Court interim and final parenting orders relating to his twin children.  Inter alia, the Court made orders that the children reside with Ms Watene, who is to exercise sole parental responsibility. Mr Paki resides with Ms Watene.  She describes his contribution as indispensable:  she currently has a badly broken arm and also works full time.  She is only able to work full time because he lives with her and shares the parental tasks.  She is adamant that she would be unable to cope without Mr Paki’s contribution.  She said that the children residing with their mother is out of the question, given her state of mental health and the character of the people with whom she associates.  The Court orders provide that the mother’s visitation and residence rights are limited:  they are to stay with their maternal grandfather at the relevant times (provided that he has not been drinking alcohol to excess) and access to her current partner is not permitted.  The children are not permitted to relocate to New Zealand without the permission of both parents, although they may leave Australia temporarily.  Accordingly, if Mr Paki is required to return to New Zealand, there are very limited prospects that he would be able to maintain his current relationship with them.   I accept Ms Watene’s evidence that she would be unable to cope and that the financial, emotional, psychological and developmental harm to the children could be acute.  I attach very considerable weight to this evidence.

9. As mentioned above, I received evidence from Mr Paki and, to a lesser extent, from Ms Watene about the circumstances in which the ground of cancellation arose.  While I consider that there were some mitigating factors in his offending, I do not think it can be said that his offending arose from circumstances beyond his control.  I do not attach any particular weight to this consideration.

10. The delegate placed some weight in Mr Paki’s favour in relation to the fact that he had not been uncooperative with the Department.  I adopt that position.

11. The other members of Mr Paki’s family being Australian citizens, there would be consequential cancellations under s. 140.  Accordingly, I give no weight to this factor.

12. Cancellation of Mr Paki’s visa may result in him being detained under s. 189 and removed from Australia under s. 198.  He may also, under s. 48, be prevented from applying for further visas while in Australia and may be affected by PIC 4013, limiting the grant of a further temporary visa for a specified period.  He also may not be permitted to work in Australia and may be held in immigration detention until his removal from Australia.  I have taken these considerations into account and give them some weight in his favour.

13. Other than the requirement to treat the best interests of his children as a primary consideration, there are no other international obligations that are engaged by Mr Paki’s circumstances.  The matter of the best interests of the children forms part of the discussion in paragraph 16.  I have treated this is a primary consideration and, for the reasons given there, consider it decisive in Mr Paki’s favour.  However, it likely that further offending behaviour, and especially any instances of domestic violence to which the children might be exposed, would shift the balance the other way.

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

    DECISION

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

    James Lambie
    Senior Member