Ponga (Migration)

[2019] AATA 3900

Ponga (Migration) [2019] AATA 3900 (8 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Joe Tangimai Ponga

CASE NUMBER:  1915969

HOME AFFAIRS REFERENCE(S):           BCC2019/1305466

MEMBER:Kira Raif

DATE:8 August 2019

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 08 August 2019 at 3:38pm

CATCHWORDS
MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – ground for cancellation – risk to safety of Australian community or individual – seriousness of offending escalated – violence or potential to cause serious harm – assault – possession of prohibited weapons – possession and trafficking of drugs – driving offences – use of drugs and alcohol – consideration of discretion – significant disregard for the Australian laws – compelling need to remain in Australia – close relationship with immediate family – degree of hardship – fully settled in Australia for lengthy period of time – little links to New Zealand – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.41

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 11 June 2019 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 (the Act).

2. The applicant is a national of New Zealand, born in September 1971. He first travelled to Australia in 1981. The applicant last entered Australia, and was granted the Special Category visa on 28 December 2016. On 22 May 2019 the applicant was issued with a 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 11 June 2019. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 8 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s former partner Ms Page and his daughter Ms Page-Ponga. The applicant was represented in relation to the review by his registered migration agent. 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 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 the applicant has been living in Australia since 1981 and was last granted the Special Category visa on 28 December 2016.

8. The primary decision record indicates that the applicant has been charged with, and convicted, of the following offences:

06/03/19 Sunshine Magistrates Court	Drive while disqualified (2 charges) Theft of motor vehicle Use of a false document to prejudice other Commit indictable offence whilst on bail Use unregistered motor vehicle – highway Traffic amphetamine Traffic ecstasy (MDMA/MDA/MDEA/MDA) Possess methyl amphetamine Deal property suspected of crime (2 charges) Possess prohibited weapon without exemption / approval	Aggregate 6 months imprisonment. Concurrent Aggregate 6 months imprisonment. Concurrent With conviction, fined $500 Aggregate 6 months imprisonment. Concurrent
28/03/18 Werribee Magistrates Court	Fail to answer bail Handle / receive / retention stolen goods Forge identifying number auth / req by Road Safety Act	With convict, fined an aggregate of $1200 with $120 statutory costs
27/11/07 Campbelltown Local Court	Common Assault	s. 9 Bond – 12 months court costs $70

1. The applicant provided to the Tribunal a copy of his charge sheets and offences summary, the report on charges heard in March 2019 and Notice of Orders made in the Magistrates Court in March 2019. The applicant states that the delegate’s decision is incorrect. The applicant notes that in relation to the March 2019 convictions, the court imposed a single sentence and not aggregate sentences and the fine was imposed in relation to the driving charge while he was sentenced to 6 months’ imprisonment for other charges. The Tribunal acknowledges that evidence.

2. The applicant provided in response to the NOICC a number of character references and the Tribunal accepts that those who provided such references believe the applicant to be of good character. However, the Tribunal notes that the convictions relate to serious offences, some of which include violence towards others (such as assault) and others that have the potential of violence or causing significant harm towards others (possession of prohibited weapons, possession and trafficking of drugs and driving offences).

3. In his evidence, the applicant has expressed remorse for his offences while Ms Page states that the conduct was ‘out of character’ and influenced by the applicant’s choice of friends. The Tribunal is mindful, however, that the offending conduct took place over a lengthy period of time spanning over 10 years. The first conviction occurred in 2007 while the latest conviction occurred very recently, in March 2019, and relates to the most serious conduct which resulted in custodial sentence. The seriousness of offending appears to have escalated over the years.

4. In his submission to the Tribunal the applicant notes that the police allege that he has been a frequent drug user since a young age and believe he would return to trafficking drugs if he has no income, as he had been arrested after being granted bail and returned to the same address. The applicant states, however, that his previous drug use related to cannabis and did not lead him to committing other offences and it was only at the end of his relationship with Ms Farrell and the death of his father in 2017 that he began to engage in the use of other drugs. He possessed several drugs in December 2018 for personal use and for sale to support his drug addiction, leading to the drug trafficking offence.

5. The applicant states that he has been in custody since December 2018, either in criminal detention or in immigration detention. He has not used drugs since his arrest in December 2019 and his tests while in detention have been clear.

6. In oral evidence, the applicant stated that he does not feel he has much of a criminal history. He said that in 2017-19 he was in a bad place when his father passed away and he turned to drugs. He is no longer dependent on drugs and does not wish to return to the use of drugs.

7. The Tribunal questioned the applicant about the circumstances of the offences. He said that in 2007 he had a fight with his partner and pushed her out of the car and drove off. He was affected by alcohol at the time as he was drinking for the whole day.

8. In 2018 the applicant said he did not know he had a court hearing because he moved to another state and he did not know that he was on bail. That is the reason he was convicted of  failing to answer bail. With respect to the other offences, the applicant said that he had an unregistered car and he changed the numberplates which he found in the house he was renting.

9. In 2019, the applicant stated that the theft of a motor vehicle relates to the motorcycle which he bought and put together and he did not know it was stolen. With respect to the use of false documents, the applicant said that his licence was suspended for 12 months in 2018 due to his drink driving and his friend arranged a licence in a different name with his photograph. The applicant said that his house was raided and the police found drugs. He was given bail and he returned to the same house. When the police came to the house, they found the drugs which were for personal use. The applicant said that he was selling drugs so he could pay for his own drug use but he is no longer doing that.

10. The applicant claims that he is no longer using drugs. He said that he has changed his mind-set and thinks clearer and had a clean drug urine test while in prison. He did a one day drug course in jail but did not have the opportunity to do other courses but he is willing to do other courses in the future. The applicant said that he has not done any other courses, such as rehabilitation courses or drug and alcohol courses.

11. The applicant notes that he had no drug history until two years ago when his father passed away and he turned to drugs. He has passed the grieving period and no longer needs the drugs. The applicant also states that where he lived in the past was a bad place and had bad influences but he intends to live in a different area and care for his mother. The Tribunal acknowledges that though the applicant may no longer be grieving for his father, there may be other problems that the applicant may face in the future. As the applicant has not completed any formal rehabilitation courses – with the exception of a one day course – and there is no evidence that he has arranged to undergo such courses in the future despite his claimed willingness to do those, the Tribunal is concerned that the applicant may relapse into the same conduct in the future if he lives in the community. The Tribunal is mindful of the applicant’s evidence that after he was granted bail in December 2018 for possession of drugs, he returned to the same house and maintained the drug possession.

12. The applicant claims that his partner was murdered recently and he did not need to return to drugs, so he is no longer dependent on drugs. The Tribunal is mindful, however, that the earlier offences are not all drug-related. At least some of his offending appears to relate to the use of alcohol. Thus, the applicant told the Tribunal that the 2007 assault conviction resulted from his use of alcohol. He also said that his driving licence was suspended due to drink driving. The Tribunal has formed the view that while some of the offending was caused by the applicant’s reliance on drugs, other offensive behaviour is due to the use of alcohol and that reliance on alcohol was in existence for much longer than since the death of his father.

13. The applicant claims that he has learned from his mistakes as he has not been in jail in the past and the term of imprisonment, as well as the possibility of his visa being cancelled, will act as an incentive for him not to re-offend.

14. The applicant’s evidence indicates that he has been a user of drugs since, he claims, 2017 when his father died. He also appears to have been reliant on alcohol for a longer period. The applicant claims that these addictions, as well as the influence of his surroundings, caused him to offend and he intends to remove these influences in the future. The applicant states he has overcome his addiction, is in a relationship and plans to move away from the unsuitable area, obtain employment and that it is unlikely that he will return to drugs. The applicant states that he committed the trafficking offences to support his previous addiction which he has overcome. The applicant claims that he has not used drugs while in detention and that his urine samples have been clear. The Tribunal is prepared to accept that this may have been the case, however, the Tribunal places weight on the fact that the applicant has not completed any rehabilitation programs since his convictions and on his own evidence, he returned to drug use in the past after being granted bail for the drug-related offending. The Tribunal considers it significant that the applicant has been in detention since his most recent offences were committed, first in criminal detention and later in immigration detention. Thus, the Tribunal is not satisfied that the applicant’s resolve not to use drugs and to change his surrounding has been tested by the applicant’s presence in the community. On the applicant’s own evidence, he had been granted bail in relation to the earlier offences and almost immediately returned to the use of drugs and the supply of drugs to support his drug habit. The applicant claims that he could have easily obtained drugs in detention but his test was clear but in the Tribunal’s view, the applicant would have far easier access to drugs and alcohol when he is in the community. In circumstances where the applicant has not spent any time in the community since his last conviction, the Tribunal cannot be satisfied that the applicant will not again engage in the same behaviour once he is released in the community or once he has ready access to drugs, even if the Tribunal were to accept the applicant’s expressed intention not to engage in such conduct in the future.  

15. The Tribunal also places weight on the applicant’s evidence about his use of alcohol. He claims the first assault occurred due to his use of alcohol and he also refers to losing his licence due to drink driving. These are serious offences that put the safety of others at risk. It is significant that after the applicant’s licence was suspended due to drink driving, the applicant chose not to follow that order but instead obtained a fake driver’s licence with the help of a friend and continued driving. The applicant appears to have had little hesitation when putting the safety of others at risk.

16. The Tribunal acknowledges the applicant’s evidence that he has learned his lesson, that the potential to lose his family and to be removed from Australia, as well as the time in jail, would act as strong incentives for him not to re-offend. That may be the case but given the short time that has passed since the most recent, and most serious offences, and the fact that the applicant has not spent any time in the community since his convictions, the Tribunal cannot be satisfied that if released into the community, the applicant will not engage in the same conduct in the future. The Tribunal is also mindful that while the applicant refers to his future plans, there is little probative evidence that he has taken practical steps to make the necessary arrangements, such as arrangements to relocate to a new area, find a job and stay away from drugs and alcohol.

17. Having regard to all these circumstances, the Tribunal has formed the view that the risk to the Australian community continues to exist because the Tribunal cannot be satisfied that the applicant will not use drugs and alcohol in the future. The Tribunal finds that the presence of the applicant in Australia may be a risk to the safety of the Australian community. The Tribunal is satisfied that the ground for cancellation in s.116(1)(e) exists.

18. 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

19. 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

20. The applicant travelled to Australia as a child in 1981 to live with his family. His evidence to the Tribunal is that he lived in Australia continuously except in the period between 1980 and 1993 when he travelled between Australia and New Zealand. The applicant told the Tribunal that he attended schools in Australia and held several jobs. His immediate family, including his mother, siblings and children, continue to live in Australia and the applicant claims he would have little support in New Zealand. The Tribunal accepts that the applicant is able to fulfil the purpose of his travel and stay in Australia.

21. In oral evidence to the Tribunal the applicant also stated that he has spent most of his life in Australia. He came here at the age of 10 and attended school here. He returned when he was 23 and has stayed in Australia since. His mother, siblings and children are Australian citizens. The applicant and his witnesses spoke about the close relationship that he maintains with his family and the support he provides to them. The Tribunal accepts that the presence of the applicant’s immediate family in Australia, including his children and grandchildren, and the applicant’s close relationship with his family, may constitute  a compelling need for the applicant to remain in Australia.

    The extent of compliance with visa conditions

22. There are no known instances of non-compliance.

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

23. The applicant has been living in Australia since 1981, when he was aged 10, and in his evidence to the delegate he states that he considers Australia his home. The Tribunal accepts that the applicant has spent the majority of his life in Australia and that he is well settled in this country and has little, if any, links to New Zealand. The applicant claims that he has a brother in New Zealand with whom he had no relationship. The Tribunal accepts that the applicant’s immediate family, including his children, mother and siblings, reside in Australia.

24. The applicant’s former partner and children also reside in Australia. Various statements which the applicant presented to the delegate refer to him having strong family values and the support he provided to his daughter and step-son. The applicant’s former partner and daughter also gave oral evidence to the Tribunal in which they referred to having close relationships with the applicant and the care and support provided by him. The Tribunal accepts that the applicant’s children and close family reside in Australia and the Tribunal accepts that he has a close and meaningful relationship with his children.

25. The applicant states in his submission to the Tribunal that his mother would be devastated if he is removed from Australia and that his daughter would suffer substantially without him as he has been a good parent to his daughter and step-son and the applicant also states that he is the step-grandfather to two children. His departure from Australia would distress his former partner, children and grandchildren. The applicant presented to the Tribunal evidence concerning his mother’s poor health. He states that if released from detention, his intention is to relocate to live with his mother and care for his mother, who has been diagnosed with a serious illness.

1. Ms Page states in her statement to the delegate that upon release, the applicant will need family support and intends to move in with his mother.  The Tribunal accepts that such support may not be available to the applicant, or not available to the same extent, if he was to leave Australia.

2. Ms Page also states that the applicant’s family need him and his removal from Australia would have an adverse effect on the applicant’s mental health and that of his family members. While there is little medical or otherwise probative evidence to support these assertions, the Tribunal is prepared to accept that the applicant and his family members in Australia may be adversely affected as a result of any separation, should the applicant leave Australia.

3. In oral evidence, the applicant states that if his visa is cancelled, he would be living in a country where he does not know anyone. He has no contact with his brother, he wants to be with his family and see his daughter get married and his family would be shattered if he has to leave. His family would be destroyed. The applicant said that he has not explored the opportunities in relation to future visa applications.

4. The Tribunal accepts that considerable hardship would be caused to the applicant and his family in Australia if the visa is cancelled and if the applicant was required to leave Australia.

   Circumstances in which the ground for cancellation arose

5. The ground for cancellation arises because the Tribunal has formed the view that the applicant’s presence in Australia may be a risk to others. The circumstances surrounding the offences are set out above.

6. The applicant states that his offending arose from his addiction to drugs and it is not suggested that the circumstances of his offending were beyond his control. The applicant states, however, that he has control over his future conduct and since his offending, he had pleaded guilty and expressed remorse for the offending, abstained from drugs, completed his sentence and behaved well while in detention. He has also made positive plans to avoid committing offences in the future by moving away from the address, people and the area where the offending occurred. The applicant told the Tribunal that he is remorseful for his actions and he can prove that he has changed, if given a chance.

   Past and present behaviour of the visa holder towards the department

7. Nothing adverse is known about the applicant’s behaviour towards the Department.

   Whether there would be consequential cancellations under s.140

8. There are no persons affected by the consequential cancellation under s. 140.

   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

9. 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 subjected 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 acknowledges that there may be very limited visa options for the applicant if he were to make an application onshore. The Tribunal also accepts that in relation to some visa applications in the future, the applicant may be subject to an exclusion period.

10. The applicant claims that these consequences are too harsh, given his ties to the community and the length of residence and the punishment, including additional time spent in immigration detention, would provide an incentive for him not to reoffend. The Tribunal accepts that the consequences of the cancellation, which may result in the applicant having to leave Australia unless he applies for, or is granted another visa, would cause considerable hardship to the applicant and others around him.

    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

11. The applicant told the Tribunal that his brother is a gang member and the whole family had cut ties with him. He said that he last saw his brother at his father’s funeral in 2017 and his brother had threatened him because he feels the family had abandoned him. The applicant states that the authorities would not protect him. The Tribunal finds the applicant’s claims vague and purely speculative. The applicant’s evidence is that he has not had any contact with his brother for a long time and at best, there may have been some conduct during their father’s funeral. It is difficult to accept the applicant’s claims, which are entirely unsupported by any probative evidence, that his brother would wish to harm the applicant or that he has threatened the applicant as a revenge for the family. Neither does the Tribunal accept that the authorities in New Zealand would not protect the applicant for any reason. The Tribunal is not satisfied on the evidence before it that Australia’s non-refoulement obligations would be breached as a result of the cancellation.

12. The applicant told the Tribunal that his daughter would be deeply affected if his visa is cancelled. However, she is aged 24 and the Tribunal does not consider her to be a child for the purpose of this consideration.

13. The applicant told the Tribunal that he has two step-grandchildren aged three and five. He said he has not seen the children for the past two years because due to his drug addiction he tried to stay away from the family. He said that he sees his son and the son’s family sometimes at his ex-partner’s home but he has not made the effort to visit the family because of the drug addiction. The Tribunal finds that the applicant has a very limited relationship with the children and such a relationship has been virtually non-existent for the past two years. The applicant claims that it is always in the best interests of the family to stay together and the children will ask about their grandfather but the applicant’s own evidence is that he determined it was in the best interests of these children if he stayed away from the family due to his drug addiction.

14. The Tribunal is also of the view that if the applicant returns to New Zealand, he would be able to maintain contact with the children by electronic means. The applicant claims that he has never used a computer but he can learn. The Tribunal is of the view that the applicant can maintain meaningful contact with the children whether or not he remains in Australia. The Tribunal is also mindful that if the applicant were to relocate to Nowra, as he claims he would, he would be living in a different state from the children and any personal contact with them is likely to be limited.

15. The Tribunal notes that the children are in the care of their parents and the applicant has played a very limited role in the children’s lives. The applicant’s future plans for re-establishing contact appear to be purely aspirational. In such circumstances, the Tribunal has formed the view that the cancellation of the visa will not have any adverse effect on the children.  The Tribunal finds that the best interests of the children will not be affected by the cancellation of the visa. The Tribunal finds that Australia’s international obligations would not be breached as a result of the cancellation.

    Any other relevant matters

16. In his submission to the Tribunal the applicant refers to his ties to the community and contribution he has made, which he claims favour the setting aside of the cancellation. The applicant refers to his relationship with the children, his lengthy employment in Australia and his sporting involvement. The Tribunal accepts that evidence.

17. The applicant claims that his intention is to move to Nowra to live with his mother and care for his mother. He intends to find a job, he is a qualified concreter and completed other courses while in jail, and his family will also support him in terms of employment. The Tribunal accepts that if the applicant were to find employment and care for his mother, he may contribute to the community through these activities.

18. The Tribunal took oral evidence from Ms Page, the applicant’s former partner. Ms Page referred to her relationship with the applicant and his good character. Their relationship started after the applicant came to Australia and the applicant is the father of her daughter and stepfather to her son. Ms Page spoke about the applicant’s close relationship with the children and being a father figure for her son. Ms Page spoke about the applicant’s good character and the support he provided to family members and friends. Ms Page spoke about the circumstances of the applicant’s mother and her poor health. She states that the mother’s wish is that the applicant should care for her. The Tribunal accepts that evidence.

19. Ms Page said that her family told the applicant that if he commits any other offences, the family would ‘wipe him’. She states that it is not in his character and he needs to take care of the family. She states that the applicant would not want to lose his family, children and step-children and will not offend again. Now that he has been in jail, he knows what is at stake and that would act as a deterrent.

20. The Tribunal took oral evidence from the applicant’s daughter, Miss Page-Ponga. She spoke about the close relationship with her father and his good character. Miss Page-Ponga expressed the view that the applicant will not re-offend and she warned her father about that and this would act as an incentive for him not to reoffend. The Tribunal accepts that the applicant’s former spouse and daughter believe that the applicant will not reoffend in the future.

21. The applicant’s representative submits that there is not a continuum of offending. There has been offending between 2007 and 2018 and the 2017 incident was a once-off offence. In 2018 the applicant was unaware about the bail and the only requirement was for him to attend court, so he may not have been aware of it. The representative submits there is no future risk in relation to that conduct. In 2019, the drug offending occurred in circumstances where the applicant was using drugs and he had drugs for personal use and also possessed drugs for sale, which was classified as drug trafficking. He was in a difficult situation in terms of geography and the death of his father in 2017 and these circumstances spiralled into drug addiction. His offending related to lifestyle at the time and the drug use. The representative submits that if the applicant is out of that lifestyle and out of the area and the influence of these people, he would not be subjected to the same triggers.

22. The representative submits there is no risk of reoffending. The applicant has served time in jail and the term of imprisonment, which he has served for the first time, means that he has learned his lesson. There are very significant consequences, not only relating to his visa but also the close relationship he has with the family. These are significant incentives for the applicant to remain drug-free and therefore offence-free. The representative notes that future visa applications would be subject to character concerns and exclusion periods and, effectively, the applicant’s removal would be in the nature of the permanent removal, rather than a temporary one.

23. The representative notes that the applicant has been a member of the Australian community and has made a significant contribution to the Australian community.  

24. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the presence of the applicant in Australia may be a risk to the community and that there are grounds for cancelling his visa. The Tribunal considers the offending to be serious. Drug offences can have significant effects on the community, particularly as in this case, the applicant was convicted not only of possession of drugs but also of trafficking drugs and on his own evidence, he was selling drugs to pay for his own drug use. Equally problematic are the applicant’s driving offences. The applicant’s evidence is that his licence was suspended due to drink driving and instead of complying with that order, he arranged a fake licence and continued to drive while disqualified. The earlier offence in November 2007 was also, on the applicant’s evidence, due to his use of alcohol. The Tribunal has formed the view that the applicant has shown a significant disregard for the Australian laws, over a lengthy period of time. While the applicant claims he is no longer a user of drugs and will not rely on drugs in the future, the Tribunal gives little weight on such assurances because the applicant’s conduct has not been tested in the community since the most recent offences, while in the past, the applicant breached bail conditions by continuing to rely on drugs while on bail for drug-related offences.

25. The Tribunal considers there are strong reasons why the visa should be cancelled.

26. However, there are other considerations. The applicant has been living in Australia since the age of 10 and fully settled in Australia more than twenty years ago. His entire family – with the exception of one brother with whom he claims to have no contact – are in Australia and are Australian citizens. The Tribunal places significant weight on the fact that the applicant maintains a close relationship with his family members, including his two adult children and that he maintains his parental responsibilities in relation to the children. The Tribunal also acknowledges that the applicant has expressed an intention of caring for his mother, who has been diagnosed with a serious illness. He is in a long term relationship with his partner. The Tribunal has formed the view that the cancellation of the visa would cause significant hardship to the applicant and his family if the applicant were required to leave Australia. 

27. The Tribunal acknowledges the applicant’s evidence that he has never been in jail before and his term of imprisonment, as well as appreciation that his visa may be cancelled, would act as strong incentives for him not to engage in future criminal conduct. The Tribunal is mindful that, should the applicant re-offend or again engage in any anti-social conduct, he may again be subject to the cancellation provisions in the Migration Act.

28. In the particular circumstances of this case, the Tribunal has formed the view that the applicant’s personal circumstances and the circumstances of his immediate family, as well as the significant degree of hardship that would be caused by the cancellation, outweigh other considerations. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

29. 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