Parata (Migration) - [2022] AATA 1149

Parata (Migration) [2022] AATA 1149 (21 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Karl William Parata
CASE NUMBER:  2119266
HOME AFFAIRS REFERENCE(S):          BCC2018/4065305
MEMBER:Kate Millar
DATE:21 March 2022
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 21 March 2022 at 5:50pm
CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – risk to health, safety or good order of community or segment of community – extensive criminal history, imprisonment, suspended sentences and community corrections orders – discretion to cancel visa – long residence from young age – relationships and children, alcohol and drug use, and mental health diagnosis and treatment – total of sentences now exceeds 12 months – possibility of cancellation on that ground – strong family ties and best interests of child – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(e), (3), 119, 359AA
CASES
CFE16 v Minister and CFD16 v Minister [2020] FCCA 1083
DXQ16 v Minister for Immigration [2020] FCA 1184
Fang v MIMIA [2004] FCA 1387
Gong v MIBP [2016] FCCA 561
MICMSMA v Parata [2021] FCAFC 46
MIEA v Guo (1997) 191 CLR 559
Uelese v MIBP [2016] FCA 348
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Mr Parata is a citizen of New Zealand who came to Australia when he was seven years old, and who is now 47. Mr Parata held a Subclass 444 visa until it was cancelled on 20 September 2018.
Mr Parata has had a difficult life, and says his upbringing was affected by the drug and alcohol problems of the adults around him, and the need for him to care for his younger brother. Mr Parata developed drug and alcohol problems and has been diagnosed with a mental illness.
Mr Parata has been convicted of a number of offences over several years commencing in 1996. His offences include unlawful assault, property damage, breaches of domestic violence orders and contravening community-based orders.
On 13 March 2018, Mr Parata was convicted of unlawful assault, breaching a family violence safety notice and contravening a community corrections order. He was sentenced to a term of imprisonment of four months. After his release he was charged on 12 July 2018 with contravening a family violence final intervention order.
Following this charge, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs cancelled his visa because the delegate found that Mr Parata is a risk, or may be a risk, to the health, safety or good order of the Australian community or a segment of the Australian community.
Mr Parata applied to this Tribunal for a review of the decision. Shortly after his application was lodged, the Tribunal found it did not have jurisdiction because the application had not been lodged within the time required with the prescribed fee. Mr Parata appealed this decision.
The matter was remitted to 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.

Continue reading Parata (Migration)

Details

AGLC: Parata (Migration) [2022] AATA 1149
Case: [2022] AATA 1149
Decision Date: 21 March 2022

CaseChat Overview and Summary

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to cancel Mr Parata's Subclass 444 (Special Category) visa under section 116 of the *Migration Act 1958* (Cth). The delegate cancelled the visa on the basis that Mr Parata posed a risk to the health, safety, or good order of the Australian community, or to the health or safety of individuals. The central issue before the Tribunal was whether this ground for cancellation was made out, and if so, whether the visa should be cancelled.

The Tribunal was required to determine if the ground for cancellation under section 116(1)(e) of the Act was established, considering Mr Parata's extensive criminal history, which included multiple convictions, periods of imprisonment, suspended sentences, and community corrections orders, with the total of sentences exceeding 12 months. If the ground was established, the Tribunal then had to exercise its discretion as to whether to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the ground for cancellation under section 116(1)(e) was satisfied. In exercising its discretion regarding cancellation, the Tribunal considered Mr Parata's long residence in Australia since childhood, his schooling, and his strong family ties, including his four children. It also had regard to his submissions concerning a difficult upbringing marked by parental separation, domestic violence, and significant alcohol and drug use by his mother and her partners. Mr Parata also detailed his own struggles with alcohol and drug use and stated he had not engaged in physical violence against his partners, only in self-defence or to assist friends. The Tribunal noted that the notice issued under section 119 of the Act, which advised Mr Parata of the grounds for potential cancellation, failed to provide a complete record of his convictions, thereby denying him a full opportunity to respond to the particulars of the alleged offending. Despite this procedural failing, the Tribunal affirmed the decision to cancel the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Parata appeared before the Tribunal on 8 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from his ex-partner, Ms Bonnie Collett. CONSIDERATION OF CLAIMS AND EVIDENCE The is an application for review of a decision dated 20 September 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 (Cth) (the Act). 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. 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. The delegate cancelled the visa under s 116(1)(e) on the basis that Mr Parata 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. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.Notice issued under s 119 of the Act Section 119 of the Act requires that if the Minister is considering cancelling a visa under s 116, the Minister must notify the person that there appears to be a ground for cancelling it, giving particulars of the ground and the information on which the ground appears to exist (among other things). The notice issued to Mr Parata under s 119 of the Act advised he had been charged with contravening a family violence final intervention order and provides details of the charge. He is advised that Victoria Police informed the Department that he has an extensive criminal history commencing in May 1996 with charges of multiple counts of breaching intervention orders, contravening suspended sentences, unlawful assault, intentionally damaging property, recklessly causing injury and failing to answer bail. It states he has been sentenced to community corrections orders and periods of imprisonment, including suspended sentences that add up to over 16 months. It lists recent convictions on 13 March 2018 for unlawful assault, contravening a family violence safety notice, contravening a community corrections order, criminal damage (intent damage/destroy) and unlawful assault. What this notice does not do is provide a record of the court, date of outcome, charges, counts and convictions that were listed in the decision of the delegate. In this case, Mr Parata has stated that many of the convictions were repeated in his record because they were called up following a breach of the community corrections order or suspended sentence. The absence of a complete list of offences in the notice issued under s 119 resulted in a failure to provide the particulars and denied Mr Parata the opportunity to respond to the record of convictions.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Tribunal is satisfied that the ground for cancellation in s 116(1)(e) exists. As this 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 There are no matters specified in the Act or Migration Regulations 1994 (Cth) 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’. In his response to the Department, Mr Parata states he arrived in Australia in 1982 at the age of seven to live with his mother. He has done all of his schooling in Australia except for Year 12. He returned to New Zealand to complete Year 12 in 1993. In his submission to the Tribunal, Mr Parata states his life has not been the most stable, with his parents separating when he was four years old. He states his only memories are of his parents fighting due to is mother’s drinking. He said on his fourth birthday his mother was drinking inside and he was run over in the driveway by the 4WD driven by one of the visitors. He lived with his mother and her often abusive partner, or with his father at his grandmother’s house. When he was seven years old, he came to Australia with his mother, and they travelled a lot due to his mother’s partner’s job. His mother and her partner were drinking a lot and using drugs, and he was often responsible for other children at parties and had to learn to cook for himself. His half-brother was born when he was 12 and he then became a baby-sitter and was blamed by his mother’s partner who “took to him with his fists” if the baby cried. His mother and her partner separated when he was 16, but his mother’s drinking increased and there were constantly adults drinking and using drugs in the house. When he was 18 he chose to return to New Zealand to finish high school and lived with his father for a short period before he was left with his grandmother. His grandmother has now passed away, and his father died in 2020. Mr Parata states drug and alcohol use has been a feature of his life and became worse as an adult, resulting in relationships with different women. He states the women were physically and verbally abusive. He states he took out his frustrations by drinking and punching the wall. He states he did not lay hands on his partners as that type of violence has never been something he did. He states even fighting other males is something he only did to defend himself or aid friends. He has four children. His eldest was born in 1996, and Mr Parata had separated from her mother before she was born. He had some contact with his daughter until she was three months old, after which her mother relocated her to Queensland. Mr Parata says this was a result of him seeking legal advice about access to his daughter. He has not had any contact since.