Rapana (Migration)

[2017] AATA 2728

Rapana (Migration) [2017] AATA 2728 (30 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Raven Karu Pirrieka Rapana

CASE NUMBER:  1720911

DIBP ICSE REFERENCE(S):  32577176753

MEMBER:Kira Raif

DATE:30 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 30 November 2017 at 3:50pm

CATCHWORDS
Migration – Cancellation – Special Category (Temporary)(Class TY) visa – Subclass 444 (Special Category) – Criminal charges and imprisonment – Hardship – Separation from family – Circumstances of offences and need for protection of community outweigh other considerations

LEGISLATION

Migration Act 1958, ss 116, 116(1)(e), 116(3), 140

Migration Regulations 1994, Schedule 2

CASES

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 1 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 applicant is a national of New Zealand, born in Mach 1993. He was granted the Special Category visa in August 1996. On 1 September 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 the same day. The applicant seeks review of the delegate’s decision.

3.    The applicant appeared before the Tribunal on 29 November 2017 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 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.    According to the primary decision record, the applicant was a holder of the Special Category visa since August 1996. The NOICC indicates that the Department of Immigration and Border Protection received information from Queensland Corrective Services that the applicant had been charged with the following offences:

a.Wilful damage

b.Entering dwelling with intent at night

c.Assault occasioning bodily harm while armed.

8.    The applicant’s oral evidence to the Tribunal is that he pleaded guilty to these charges and was given a five year suspended sentence with three years’ probation.

9.    The applicant is recorded to have stated in response to the NOICC that he had no money and he was owed money so he went to collect the money from another person. In oral evidence to the Tribunal the applicant said that a friend of a friend owed them money and they went to collect the money from that person’s house and a fight occurred and the police was called. The applicant said he had no intention of causing harm, however, the applicant entered another person’s house with a weapon at night. When asked what he thought might happen in these circumstances, the applicant said that he went to this person’s house with a bat, at night, with the intention of intimidating that person. That is, the applicant had the intention of causing harm, whether through intimidation or assault.

1. The applicant told the Tribunal that he is not a violent person and there were circumstances that caused him to behave the way that he did. It is of considerable concern to the Tribunal that the applicant chose to obtain the money by exerting violence against another person and his evidence is that he went to the house with a weapon with the intention to intimidate. The convictions set out above indicate conduct that is violent and anti-social and such violence was directed at others.

2. The applicant told the Tribunal that when he was 18, he was convicted of assault after he had an argument with a friend and the police was called. He said he was sentenced to two years imprisonment and served a year before he was granted parole.

3. The applicant told the Tribunal he engaged in this violent conduct while under influence of alcohol and drugs. He said while in prison for the past two years, he has completed courses which would help him cope better. He has the support of his family and his daughter’s family and he now has the tools to change his behaviour. The Tribunal is prepared to accept (even though there is no documentary evidence) that the applicant has completed rehabilitation courses while in prison but the Tribunal is mindful that the applicant engaged in violent conduct despite his earlier conviction and imprisonment. The applicant’s evidence is that he stopped using drugs after the first conviction and had not been using drugs for four years but had relapsed after he broke up with his partner. The Tribunal is not satisfied that the rehabilitation courses which the applicant completed after the first conviction necessarily helped the applicant avoid engaging in violent conduct and the Tribunal is concerned that his conduct in the future may not be different, despite additional courses the applicant has now done. The Tribunal is not satisfied that the applicant necessarily has the skills and the ability to deal with difficult situations other than through violence, particularly if he is affected by drugs or alcohol.

4. The Tribunal finds that on at least two occasions, the applicant had been convicted of serious offences involving physical harm to others. The applicant’s evidence to the Tribunal is that on the second occasion, he had the intention to intimidate. The applicant has been sentenced to two lengthy terms of imprisonment, reflecting the seriousness of these offences. The applicant’s willingness to engage in violent and anti-social conduct indicates, in the Tribunal’s view, that the applicant’s presence in Australia is or may be or would or might be a risk to the safety of the Australian community or individual or individuals against whom the applicant may again choose to engage in violent behaviour. The Tribunal finds that the ground for cancellation is made out.

5. 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

1. There are no matters specified in the Act or the 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

1. The applicant has been living in Australia since the age of three. His mother, siblings and extended family, ex-partner and young child are all in Australia. The Tribunal accepts that the applicant has settled in Australia and has strong family links in Australia and the Tribunal accepts that such links are greater than his links in New Zealand. In his submission to the Tribunal of 7 November 2017 the applicant notes that he travelled to Australia in 1997 and has not known any other country. He has completed schooling here and has been working since the age of 13. If the purpose of the Special Category visa is to enable the visa holder to settle in Australia, 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

1. 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)

1. In his written response to the NOICC the applicant notes that he has no family support in New Zealand and will have no accommodation. In his submission to the Tribunal the applicant claims he will face financial, psychological and emotional hardship and stress, he will be away from his family and his child and will have no work, no home and no family support in New Zealand. The Tribunal is of the view, however, that the applicant is an independent adult and there is no obvious reason why he could not obtain employment, hire accommodation and support himself and live independently even if he has no family support in New Zealand. There is no evidence that the applicant sought employment and has been denied employment in New Zealand and the Tribunal is not satisfied the applicant will be unable to support himself financially. Nevertheless, the Tribunal is prepared to accept that being separated from his family in Australia is likely to cause significant hardship to the applicant. 

2. In oral evidence the applicant said it would be difficult for him to go to New Zealand. He has no money and no home and no family. The Tribunal accepts that the applicant has nothing in New Zealand as he has been living in Australia for a long time but as noted above, there is no reason why the applicant should be unable to find employment and support himself and the applicant may also have the support from his parents and siblings in Australia. The applicant said he has not discussed it with his family but he could not see any reason why such support cannot be provided by his family. The applicant said that it might be difficult for him to get a job in New Zealand with his criminal record but he said he has a job lined up in Australia, despite his conviction. The Tribunal is not satisfied that the applicant would be unable to find gainful employment in New Zealand, either as a result of his conviction or for any other reason and the Tribunal is also of the view that the applicant will be able to get financial support from the family if there is a need for such support.

3. The applicant said that he has a four year old daughter who lives with her mother. The applicant said that they have shared custody and he used to visit his daughter every weekend. His ex-partner and child had visited him a few times in the past two years while he has been in prison. The applicant said his ex-partner has a new relationship but he was not sure about his daughter’s relationship with her step-father.

4. The applicant said that there is a possibility that his ex-partner and daughter may visit him in New Zealand but it is unlikely because of the money. The applicant agreed that he would be able to maintain contact with his daughter by electronic means.

Circumstances in which ground of cancellation arose

1. The ground for cancellation arose because the Tribunal has formed the view that the presence of the applicant in Australia is or may be or might or would be a risk to the safety of the Australian community or the safety of an individual or individuals.

2. In relation to the most recent offence, the applicant claims that he was owed money and he was collecting the debt. His evidence to the Tribunal is that he did not plan to assault anyone but he went to another person’s house with a bat with the intention of intimidating that person. It is unclear to the Tribunal why the applicant chose to collect the debt by violent and unlawful means. In his written submission to the Tribunal the applicant claims he made ‘the biggest mistake of his life’ and he regrets what he had done.

Past and present conduct of the visa holder towards the department

1. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

1. 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. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention.

Whether there would be consequential cancellations under s.140

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

Whether any international obligations would be breached as a result of the cancellation

1. There is no evidence, and the applicant does not claim that Australia has an obligation to protect him. The applicant told the Tribunal that he did not believe anything would happen to him if his visa is cancelled and he is required to return to New Zealand. The Tribunal does not consider that Australia’s non-refoulement obligations would be breached as a result of the cancellation.

2. The Tribunal has considered the best interests of the applicant’s child. The applicant told the Tribunal that he had regular contact with his daughter before his imprisonment but limited contact since his imprisonment. The applicant said that not having a father may have an emotional impact on his daughter in the future. The Tribunal is of the view, however, that even if the applicant was to leave Australia, he would be able to maintain electronic contact with his daughter as frequently as he wishes and he would be able to continue to provide emotional support to his daughter if he is doing that now.

3. The Tribunal is also mindful that the offences committed by the applicant are violent offences and the applicant referred to the use of drugs and alcohol that resulted in such behaviour. The applicant’s evidence to the Tribunal is that he can now cope better and he has never been violent around his family but the Tribunal is concerned that in situations when the applicant is not able to cope or when he is under the influence and may engage in violent conduct, it may not be in the child’s best interests to observe such behaviour.  The Tribunal also notes that there is nothing preventing the child from travelling to New Zealand to visit the applicant (the Tribunal acknowledges that there may be financial limitations). The Tribunal is not satisfied, in the circumstances, the child’s best interests would be adversely affected as a result of the cancellation.

4. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal acknowledges that the applicant has been living in Australia since a very young age and that his entire family is in Australia. He has nothing in New Zealand, although the Tribunal has formed the view that he would be able to obtain employment and support himself through employment and help from the family. The Tribunal accepts that considerable hardship may be caused to the applicant if his visa is cancelled because the applicant will be separated from his family and from his child. The Tribunal acknowledges that the applicant wishes to maintain a close relationship with his daughter and that his contact with the child will be more limited if the applicant is not in Australia. The Tribunal accepts there are strong reasons why the visa should not be cancelled.

5. Against these considerations, the Tribunal notes that the applicant engaged in serious misconduct involving violence. On two occasions he had been found guilty of serious offences and has been given substantial prison terms. Although the applicant claims he made a mistake and has now learned from it, the Tribunal is mindful that the first term of imprisonment, including any rehabilitation programs the applicant completed at the time, did not prevent the subsequent crime. The Tribunal has formed the view that the circumstances of the offences, and the need for protection of the community, outweigh other considerations.

6. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

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

Kira Raif
Senior Member