Robertson (Migration)

[2018] AATA 1443

Robertson (Migration) [2018] AATA 1443 (17 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kenneth Benjamin Robertson

CASE NUMBER:  1722161

DIBP REFERENCE(S):  BCC2017/1275959

MEMBER:Kira Raif

DATE:17 April 2018

PLACE OF DECISION:  Sydney

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

Statement made on 17 April 2018 at 12:58pm

CATCHWORDS

Migration – Cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – Criminal history – Guilty pleas – Family violence – Multiplicity of offences – Rehabilitation program

LEGISLATION
Migration Act 1958, s 116
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 12 September 2017 made by a delegate of the Minister for Immigration 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 January 1985. He was last granted the Special Category visa in November 2015. In July 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 did not respond to the NOICC and his visa was cancelled on 12 September 2017. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 16 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner. 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. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that in April 2017 the Department received information from the WA Police stating that the applicant had been charged with the following offences:

   a.Breach of protective bail conditions

   b.Common assault in circumstances of aggravation or racial aggravation

   c.Two counts of criminal damage or destruction of property

   d.Damaging property.

8. These charges are said to relate to offences committed by the applicant on 27 November 2016 and 4 December 2016 against one of his former partners and on 12 December 2016 against another of his former partners. The applicant subsequently provided court documents to the Tribunal indicating that he has been acquitted of the charge of common assault and that one of the Violence Restraining Orders (VRO) was cancelled.

9. The primary decision record indicates that according to the WA Police, the applicant had pleaded guilty to all charges and indicated an interest in undertaking a counselling program, but his attendance was reported as ‘mixed’. The applicant informed the Tribunal in oral evidence that he has been pleaded guilty to these offences on advice of his lawyer. He said that he was fined for some of the offences and given a nine months’ supervision order in relation to the assault.

10. The primary decision record indicates that the applicant had been involved in 14 domestic incidents known to the police since September 2015, including a number of incidents in relation to his former partner.

11. Further, according to the AFP, the applicant has a number of earlier convictions:

    a.Steal motor vehicle (May 2013)

    b.Criminal damage or destruction of property (March 2017)

    c.Driving with prescribed illicit drug (March 2017)

    d.Possession of drug paraphernalia (March 2017).

12. In his written response to the NOICC the applicant suggests that the damage to the house was caused by his former partner, who prevented him from accessing the house for the past eight months and sold many of his belongings. The applicant claims that the domestic incidents have resulted from that situation. He claims he had never assaulted his former partner but she assaulted him on several occasions and he took out a VRO against her in 2015. The applicant explained that the breach of bail charge arose from the time when his former partner brought their son to see him. The applicant stated that the criminal damage/destruction of property charges were caused by his frustration at the harassing behaviour of his two former partners. The applicant stated that he pleaded guilty to assault to reduce the likelihood of receiving a custodial sentence. He states that he only missed one session of the domestic violence program and found it beneficial. The applicant stated that he had never assaulted either of his former partners and is not a violent person and he had been ‘set up’ by his partner to get back at him for ending the relationship. He states that any act of violence he may have shown or been charged with was out of frustration after months of tormenting and abuse.

13. In oral evidence to the Tribunal the applicant also claims that the circumstances were initiated by his former partners and his conduct was in response to their behaviour. The applicant referred to receiving threats and said he was reluctant to call the police while his partners did so on each occasion. He said that he took out a VRO in relation to his then partner but he was threatened by her friends. The applicant said one of the assault charges has been dismissed and while he pleaded guilty to the other assault charge, he did so on advice of his lawyer. The applicant said he is not a violent person and is no longer in a relationship with those partners and has not had contact with them.

14. The Tribunal finds that evidence problematic. The convictions indicate that the applicant was found guilty of the offences, whatever his motivations had been, and even if he believed it was his partner who initiated the misconduct. The applicant appears to concede that there were family violence issues in his relationships and even though he claims he was provoked, the Tribunal does not consider that violent behaviour towards former partners would have been justified in any circumstances. The Tribunal acknowledges the applicant’s evidence that he has no intention of contacting his former partners, implying there is no chance of his presence in Australia being a risk to them, but the Tribunal’s concern is not only in relation to those particular individuals but the applicant’s general conduct towards women and those he is or may be in relationships with.

15. The applicant refers to his new relationship and states that his partner’s family would not allow him to stay in their house if he was violent. The Tribunal is prepared to accept that there has been no violence in the present relationship.

16. The applicant provided a written statement to the Tribunal outlining his circumstances. He states that he came to Australia in 2009 and has been employed since then. He refers to his previous relationship and buying a property with his partner in 2010. The relationship broke down in 2013 and a few months later he started another relationship. The applicant states he tried ending that relationship but his partner threatened him or used emotional blackmail and was physically violent. In 2015 he ended the relationship and took a VRO against her but was threatened by her associates and he also found out his partner was pregnant. Their son was born in April 2016. In May 2016 his partner moved out but continued to make false accusations against him when he tried to see his son. Later on she moved into his property and called the police when he returned home. He was on bail at the time due to her false accusations of assault. The applicant states that this partner has been living in his house and sold all his belongings and has not paid rent or mortgage. She has sent him abusive messages to which he has not replied. The applicant states that many of the 15 incidents to which the police refer were due to him trying to get his house back. The applicant claims he does not pose a risk to this partner, otherwise she would not be residing in his house and sending him threatening messages. The applicant repeated that information in his oral evidence to the Tribunal.

17. The applicant states in oral evidence that in his previous relationship, his partner moved into his property and the domestic violence charges relate to him going to his own property. The applicant said that his partner accused him of having a weapon but that was not the case. A few times his partner called the police but he was not armed. The applicant said that he was the subject of the VROs issued in relation to his two former partners. The applicant said that one has been withdrawn and he is in the process of challenging the other one. With respect to his second partner, the applicant states that he has not had any contact with her since 2016. In May 2017 the interim VRO was cancelled, which he claims is a sign that he does not pose a risk to her.

18. In relation to the 2013 charge of stealing a motor vehicle, the applicant said that he got into a car with a friend although he knew the car did not belong to his friend and it was an error of judgment. The 2017 incidents occurred because he was under the influence and fell asleep while driving. As a result his car was searched and drug paraphernalia was found.

19. The applicant claims that the conduct was out of character and he does not have a history of violent behaviour. He has not been involved in any problematic behaviour for a year and a half and he has no contact with his former partner. That may be the case but the Tribunal is mindful that the offences appear to be common to the applicant’s relationships. His evidence to the Tribunal is that both relationships had been problematic and involved calls to the police. That may suggest a pattern of behaviour rather than an isolated incident as the applicant suggests.

20. The Tribunal has considered the information in the primary decision record, as well as the applicant’s evidence. The applicant claims he has never been violent and the convictions have resulted from his poor relationship with his former partners and he states he has been ‘set up’. The Tribunal finds these explanations unconvincing. The applicant has been convicted of a number of offences, having had the opportunity to present evidence in court. He also pleaded guilty to a number of offences and while he claims his plea was a matter of convenience, the Tribunal does not accept that this is so. Some of the offences to which the applicant pleaded guilty involve violence, such as criminal damage and destruction of property. The Tribunal is also mindful that the applicant has been issued with the protection orders, although he claims one has been withdrawn and he is challenging the other. According to the decision record, there had been multiple domestic incidents involving the applicant’s former partner, known to the police.

21. The Tribunal is of the view that the applicant’s criminal history, the nature of the offences and the multiplicity of the offences all indicate that the applicant has perpetrated violence against other persons, whatever the applicant believes the cause of it to be. The applicant explains why the domestic violence occurred, suggesting he has been ‘set up’ or victimised by his former partners, but the convictions suggest the applicant himself engaged in conduct that was inappropriate. The applicant also engaged in other criminal activities including involvement in stealing a motor vehicle and drug use, suggesting a broader disregard for the Australian laws.

22. The applicant told the Tribunal that he had participated in a rehabilitation program but he did not complete the program because, due to his work commitments, he failed to attend a few sessions. It is not clear why the applicant could not have rearranged his work to enable him to attend each session and the applicant told the Tribunal that he does not intend to complete the program.

23. The Tribunal finds that the applicant engaged in criminal conduct and, contrary to his submission, the offences occurred over a period of time, the first being in 2013 and a series of other offences occurring in 2016. There appears to be an extensive history of family violence. Having regard to these matters, the Tribunal finds that the applicant’s presence in Australia is or may be a risk to the safety of a segment of the Australian community (women) or the health or safety of an individual or individuals (the applicant’s partners).

24. For these reasons, 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 power to cancel the visa should be exercised.

    Consideration of discretion

25. There are no matters specified in the Act or Regulations 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

26. The purpose of the Special Category visa is to enable the visa holder to live in Australia. The applicant refers to having family in Australia and to his present relationship. He has a child from a previous relationship and a child from his current relationship.

27. The applicant told the Tribunal that he moved to Australia in 2009 to start a new life. He found a job in Australia and bought a new home. He has an Australian citizen partner and child and he has a son with his former partner and that child is also an Australian citizen. The applicant said that he has not seen that child for over a year but he is going through the Family Court proceedings to have access to his child.  

28. 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 accepts that there may be compelling need for the applicant to remain in Australia.

    The extent of compliance with visa conditions

29. There is no evidence of the applicant’s non-compliance with any visa conditions either on the Special Category visa or the bridging visa.

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

30. The applicant states in his response to the NOICC that he presently lives with his new partner and they expect a child in January 2018.  The applicant’s evidence to the Tribunal is that his son was born four months ago.

31. The applicant refers to his employment. He states in his submission to the Tribunal he has been working for about 12 months prior to the cancellation of his visa and was seeking permission to work to return to the same job. The applicant’s evidence to the Tribunal is that he has been employed and supporting his family. The applicant notes that a decision was made not to cancel his bridging visa.

32. The applicant told the Tribunal that he sold everything in New Zealand before coming to Australia and he would have nowhere to live if he had to return to New Zealand. The applicant said that he bought a house in Australia a few years and the property is in his name but because he has not been able to pay the mortgage, the bank is in the process of repossessing, so he might not be able to get any money from the sale.

33. The applicant is a qualified mechanical fitter and he agreed that he may be able to find a job in New Zealand. The applicant claims the wages are lower in New Zealand, although he agrees that the living expenses are also lower. The Tribunal accepts that the applicant financially supports his partner and children but the Tribunal is of the view that he will be able to continue to do that in the future, even if the level of support is lower. The applicant’s evidence is that his sponsor is in receipt of Centrelink payments and the Tribunal does not accept that the sponsor would suffer financial hardship as a result of the visa cancellation.

34. The applicant claims he would suffer emotional hardship as he came to Australia to start a new life. The applicant said that his grandparents and aunts live in Australia but in different cities. The Tribunal accepts that is the case but since they do not live near each other and the applicant is able to maintain contact by electronic means, he will be able to do the same even if he lives outside of Australia. The applicant told the Tribunal that his parents and several siblings live in New Zealand and he maintains contact with them. The Tribunal finds that the applicant has strong family connections in New Zealand.

35. The applicant told the Tribunal that he had discussed with his partner relocating to New Zealand but she has not made the decision as she was brought up in Australia and her parents are in Australia. The evidence of the applicant’s partner is that they do not wish to be separated and if the applicant were to leave Australia, she would come with him. The Tribunal accepts that if his partner does not accompany the applicant to New Zealand, that may lead to the separation of the applicant and his partner and child and the Tribunal accepts that may lead to a significant degree of hardship. However, if the applicant’s partner does accompany him to New Zealand, which seems to be a reasonable option, the family unit will be maintained and the applicant will also be closer to his parents and siblings.

    Circumstances in which ground of cancellation arose

36. The ground of cancellation arose because the applicant has been convicted of a number of offences and charged with others. The Tribunal has formed the view that the presence of the applicant in Australia is or might be a risk to the Australian community. Although the applicant claims his behaviour was never violent and that he was a victim and not the perpetrator on some occasions, given the convictions and the applicant’s guilty plea, the Tribunal does not accept the applicant’s description of events. The Tribunal is not satisfied the circumstances were beyond the applicant’s control. The Tribunal acknowledges that the applicant had participated in a domestic violence program which he claims to have found helpful, although the Tribunal also notes that the applicant has not completed the program and has no plans to complete it due to work commitments.

    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

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

3. The applicant told the Tribunal that he was advised he could apply for a partner visa but he has no money to make such an application and they cannot borrow the funds from anyone. The Tribunal acknowledges that the applicant may be subject to an exclusion period in relation to some applications he may wish to make in the future.

   Whether there would be consequential cancellations under s.140

4. 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

5. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations would be breached as a result of the cancellation. The applicant told the Tribunal that his family must be protected from financial and emotional hardship that would be caused by the cancellation of his visa. The Tribunal is not convinced that such matters give rise to Australia’s protection obligations but in any case the Tribunal is mindful that the applicant is entitled to seek a protection visa if he believes Australia’s protection obligations arise.

6. The applicant has two children in Australia, one with his former partner and one with his current partner. The applicant said that he has not seen his elder child since December 2016 as the child’s mother opposes the arrangement but he has ongoing court proceedings to gain access to the child. The Tribunal is mindful that the applicant’s relationship with the child’s mother appears to have been affected by family violence and on the applicant’s own evidence, the separation was acrimonious. In such circumstances, the Tribunal does not consider that it is in the best interests of that child to be with the applicant.

7. With respect to the child of the present relationship, the applicant said that he hopes his partner and child would come with him but they have not yet made the decision. The applicant’s partner told the Tribunal that she would accompany him to New Zealand if the visa was cancelled. The applicant said that financially it would take time for him to be able to finically support his family and find a place to live and bring them to New Zealand. He said that his parents-in-law also do not wish to be separated from the grandchild. The Tribunal is prepared to accept that it would be beneficial for the child to grow up with both parents but in the Tribunal’s view, that can happen irrespective of the applicant’s visa. There is no reason why the family cannot relocate to New Zealand, even if it takes some time due to financial constraints, or the applicant may make an application for a visa to remain with his partner and child. At worst, the cancellation of the visa will result in a temporary separation of the applicant and his child until the family finds the means to either relocate to New Zealand or the applicant makes another visa application. Alternatively, the family will relocate to New Zealand and maintain their family unit and while the child will be separated from his maternal grandparents in Australia, he will have the benefit of his paternal grandparents in New Zealand.

8. While the Tribunal acknowledges that it may be in the best interests of the child to be with both parents, the Tribunal does not consider that this must be in Australia.

9. 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 safety or good order of a segment of the Australian community, or to the safety of an individual or individuals, and that there are grounds for cancelling the visa. The Tribunal acknowledges that the cancellation of the visa may cause a degree of hardship to the applicant and his family, particularly if the applicant is unable to make another visa application onshore and if he will be required to leave Australia. The Tribunal acknowledges the applicant’s evidence that he has been living in Australia for close to 10 years, that he is settled here, has a stable job and family connections and that he came to Australia to have a better life. The Tribunal accepts that if his family cannot accompany the applicant to New Zealand, that would cause the applicant to be separated from his partner and child and that would also cause a significant degree of hardship. The Tribunal acknowledges that the applicant complied with visa requirements and appears to have been cooperative with the Department.

10. Against these considerations, the Tribunal notes that the convictions relate to offences which involved violence towards others. The applicant appears to have little remorse for his actions, repeatedly telling the Tribunal that he was not violent and that others had perpetrated violence against him and that he was the victim. In light of the applicant’s convictions and guilty plea, the Tribunal finds the applicant’s explanations questionable. There is reference to multiple domestic violence incidents in the applicant’s earlier relationship and while the applicant claims he was provoked by his former partners, it is of concern to the Tribunal that the applicant chose to resort to violence to resolve these problems. The applicant admitted illegal drug use and car theft, which suggests his general disregard for the law. The applicant has not completed the rehabilitation program and does not intend to return to it.

11. The Tribunal has formed the view that the best interests of one child would not be served by the applicant’s presence in Australia while the best interests of his youngest child do not require his presence in Australia as the entire family would be able to relocate to New Zealand, even if it takes time. Australia’s international obligations would not be breached as a result of the cancellation.

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

    DECISION

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

    Kira Raif
    Senior Member