Sa Taupau (Migration)

[2018] AATA 5243

Sa Taupau (Migration) [2018] AATA 5243 (29 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tatoi Sa Taupau

CASE NUMBER:  1818826

DIBP REFERENCE(S):  BCC2018/933640

MEMBER:Kira Raif

DATE:29 November 2018

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 29 November 2018 at 11:15am

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – ground for cancellation – incorrect information on Incoming Passenger Card – consideration of discretion – immigration clear based on incorrect information – other breaches of immigration laws – length of time since applicant’s convictions – spent convictions – unintentional breach – best interest of children – degree of hardship – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 102, 107, 109

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 444 (Special Category) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of New Zealand, born in June 1963. He was most recently granted the Special Category Subclass 444 visa on 5 February 2015. On 13 April 2018 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that the applicant did not comply with s.102 of the Act. The applicant provided his response to the NOICC and on 19 June 2018 the applicant’s visa had been cancelled under s.109 of the Act. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 21 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner. Several other witnesses were available to give oral evidence but the Tribunal did not consider it necessary to take oral evidence from these witnesses as the Tribunal received written statements from these witnesses and also because the Tribunal accepts that evidence. 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. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

5. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.

6. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

   Did the notice comply with the requirements in s.107? 

7. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

8. In the Tribunal’s view, the NOICC contains sufficient particulars to enable the applicant to identify and address the issues and the applicant’s response to the NOICC indicates that he understood the issues that arose. The Tribunal is also satisfied that the delegate had reached the necessary state of mind to engage s.107. The Tribunal finds that the notice issued under s.107 complied with the statutory requirements.

   Was there non-compliance as described in the s.107 notice?

9. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.102 of the Act.

10. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information:

    a.The applicant last travelled to Australia on 5 February 2015 and was granted the Special Category visa upon entry to Australia.

    b.On his Incoming Passenger Card (IPC) the applicant stated ‘no’ in response to a question regarding whether he had any criminal convictions.

    c.The Department became aware that the applicant was convicted on 25 November 1994 at Sydney District Court for malicious wounding with intent to cause grievous bodily harm. The applicant was sentenced to a minimum term of two years and six months with an additional term of 18 months.

    d.On the same day the applicant was also convicted for possession of a firearm airgun with a shortened barrel and / or butt. He was sentenced to imprisonment for a fixed term of 18 months.

    e.New Zealand authorities confirmed that at the time the applicant was known under a different name of Tatoi Tafa Sa Taupau and held a West Samoan passport. In July 2010 the applicant obtained New Zealand citizenship under the name of Tatoi Sa Taupau.

11. In his written response to the NOICC and his oral and written submissions to the Tribunal the applicant acknowledged that he ticked ‘no’ in response to a question about criminal convictions. The applicant stated that it was his understanding that any criminal offences that were more than 10 years old were not required to be declared. His past convictions, which occurred in 1994, were more than 10 years old when he was very young. The applicant stated that English was his second language and he had since received advice that his opinion relates to state law, which is why he completed the IPC the way he did. In oral evidence the applicant also told the Tribunal that he made an honest mistake. He said he misunderstood the question and thought that once ten years passed from the conviction, it did not need to be mentioned.

12. With respect to the use of incorrect name, the applicant stated that it was not his intention to deceive using the false name. The applicant states that he used the name in his passport and the word ‘Tafa’ is a title and not a personal name.

13. The applicant concedes in his evidence to the Tribunal that he made a mistake and that he should have declared his convictions. The applicant concedes that his answer on the form was incorrect. While the applicant claims he did not withhold information about his convictions intentionally, the Tribunal is mindful that in accordance with s.100 of the Act, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect. Further, s.111 provides that s.109 applies whether the non-compliance was deliberate or inadvertent.

14. Having regard to the information in the primary decision record, the Tribunal finds that the applicant has multiple criminal convictions. The Tribunal finds that by stating ‘no’ in response to the question about his criminal convictions on the IPC, the applicant gave an answer that was incorrect. The Tribunal finds that there was non-compliance with s.102(b) by the applicant in the way described in the Notice. The Tribunal finds that there was non-compliance with s.102 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

15. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

16. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994 (the Regulations). Briefly, they are:

    The correct information

17. The correct information is that the applicant has several criminal convictions in Australia. The applicant claims he believed the convictions were no longer relevant because of the time that has passed.

    The content of the genuine document (if any)

18. This is not relevant in the present case.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

19. Section 166(1)(b) of the Act requires a non-citizen to provide information required by the Act or the Regulations and r.3.02(1)(b) of the Regulations provides that a passenger card for a person entering Australia must include a question about criminal convictions. To be granted the Special Category visa, the applicant must have shown that he is not a behaviour concern non-citizen, as required by s.32 of the Act. ‘Behaviour concern non-citizen’ is defined in s.5 of the Act and relevantly refers to a conviction or convictions for crimes resulting in imprisonment for a period of at least one year.

20. According to the primary decision record, the applicant had been convicted of two offences and the two convictions resulted in imprisonment for a period of at least one year. That conviction would have been relevant in assessing whether the applicant was a behaviour concern non-citizen.

21. The Tribunal finds that the decision to grant the visa was based, wholly or partly, on the information provided about the applicant’s convictions. It is not necessary for the Tribunal to decide whether the applicant would have been immigration cleared, had the correct information been disclosed.

    The circumstances in which the non-compliance occurred

22. In his response to the NOICC the applicant states that he believed his convictions were ‘spent’ convictions and did not need to be declared. The applicant states that he did not intend to mislead. The applicant states in his submissions to the delegate and the Tribunal that the convictions occurred when he was very young and he is older and more mature now. The applicant described the circumstances that led him to offend. The Tribunal is mindful though that the breach does not relate to the criminal convictions but rather to the applicant’s failure to mention his convictions on the IPC. The applicant also claims that English is not his first language. However, given the length of time the applicant has spent in Australia and New Zealand and his engagement in the workforce and the community, the Tribunal does not accept that the applicant would have misunderstood the language of the question on the IPC.

23. In his written submission to the Tribunal the applicant states that he did not use an incorrect name on the IPCs. He did not refer to ‘Tafa’ because this word is a title rather than the actual name and that is the only difference in the names. This is consistent with the name recorded in his passport and this was recognised by the delegate in making the decision.

24. With respect to his criminal convictions, the applicant states that he believed the 10 year rule applied and that his convictions were spent and did not need to be disclosed. The applicant states that it was a genuine belief and he had no intention to mislead.  The applicant notes that the question on the IPC is in the present sense and refers to present convictions, not every conviction that he may have had in the past.

25. As noted above, the applicant concedes that his understanding of the question was incorrect and that he was required to mention the convictions on the IPC. Nevertheless, the Tribunal accepts the applicant’s evidence that he believed the convictions were spent due to the passage of time and that he did not believe the convictions needed to be mentioned for that reason. The Tribunal has formed the view that the beach was unintentional, although the Tribunal is also of the view that the applicant could have disclosed the convictions, if in doubt, and that he could have taken greater care to acquaint himself with the legal requirements and in ensuring the information he supplied was correct.

    The present circumstances of the visa holder

26. The applicant states in his response to the NOICC that when the offenses were committed, he was young and struggling with the new culture and affected by alcohol. The applicant states that he does not drink or smoke and he is a practising Christian and is involved in the local church and he provided to the Tribunal evidence of his involvement with the church. The applicant states that since returning to Australia he has developed a close network and good relationships with his five siblings in Australia and they support each other. The applicant states that he has a resposniblity to contribute to the community and look after his family, particularly since the chief title was bestowed on him.

27. The applicant presented to the Tribunal evidence of his relationship with his de facto partner in Australia. The declaration from Ms Ola describes the nature of the relationship and the support she and the applicant provide to each other. Ms Ola states that she has three dependent children and states that the applicant is a father figure in their lives. Ms Ola describes the hardship the family has experienced as a result of the applicant’s detention. Ms Ola also gave oral evidence to the Tribunal outlining the applicant’s relationship with her children. Ms Ola states that the applicant is not a threat to the community. Ms Ola claims that it is unfair to punish him for the conviction that occurred over 20 years ago. The Tribunal is mindful that the cancellation of the visa was caused by the applicant’s failure to declare his convictions, which was recent, rather than the conviction itself.

28. The applicant refers to his employment at AGS Structural and states that he never relied on welfare. The applicant provided to the Tribunal various documents concerning his employment and confirmation that he would be offered a job if he is released from detention.

29. The applicant states that he works hard because people in Australia and Samoa depend on him. He understands the Australian way of life and complies with the laws and meets community expectations. The applicant states he is not a threat to anyone. The applicant provided an employment reference and information about his family. The Tribunal is prepared to accept that the applicant supports his family, including his siblings, and that there is a close relationship between them.

30. The applicant states that he has been in a relationship with his de facto partner since 2012. He lives with his partner and her three children aged 16, 11 and 10 and he has been providing financial support to them. The applicant states that he has a close relationship with the children. He speaks to the children about their behaviour, picks them up from school and takes them for meals and sport activities. He is a father figure to them. The applicant claims that his core family – being his partner and children – are in Australia and he is also able to spend time with his biological son in Australia. Ms Ola told the Tribunal that the behaviour of the younger children had been affected since the applicant was detained.

31. The applicant told the Tribunal that he has three children in New Zealand, aged 26, 18 and 16. He has one son in Australia, 21 years old, who is an Australian citizen. The applicant states that he has a close relationship with his children, they speak almost daily and they visit him in Australia every year. The applicant also spoke about his siblings in Australia. He states that he has a close relationship with his family members in Australia and overseas and he provides financial support to his brother overseas.

32. The applicant presented a birth certificate for his Australian citizen child, as well as records relating to his partner’s children. He also presented a number of character references and statements of support, which include statements from his family members. The applicant’s family members were available to give oral evidence to the Tribunal. The Tribunal accepts the evidence in these materials. In particular, the Tribunal accepts that the applicant has been living with his de facto partner since 2012 and has developed a close relationship with the children. The Tribunal accepts that the applicant provides emotional and financial support to his family in Australia. The Tribunal accepts that family members would be affected if the applicant was required to leave Australia.

33. The applicant states in his submission to the Tribunal that his earlier convictions were due to his use of drugs and alcohol and he was still young at the time. He has not committed any offences since 1994 and is more mature and has not reoffended. The applicant states that at the time of convictions, he was young and used drugs but he is no longer doing that. He does not drink and does not use drugs.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

34. Nothing adverse is known about the applicant’s subsequent behaviour concerning his obligations under the above provisions.

    Any other instances of non-compliance by the visa holder known to the Minister

35. The primary decision record indicates that the applicant was granted eighteen Special Category visas between March 2012 and September 2014. On each of the IPCs associated with these visits, the applicant failed to declare his criminal conviction. The applicant confirmed in oral evidence to the Tribunal that he made several trips in and out of Australia since 2012 and that he did not declare his convictions on the IPCs. That would indicate numerous other instances of non-compliance with s.102 of the Act. The applicant explained to the Tribunal that each time he entered Australia, he believed he did not have to mention the past convictions and that shows that the breach was not deliberate.

36. The applicant also told the Tribunal that at the time of his conviction, he was in Australia unlawfully. He said he came to Australia as a visitor and liked Australia, so he decided to stay and work in Australia. Once he was convicted, he was asked to leave and he complied with the requirements. The Tribunal finds that the applicant’s residence in Australia as an unlawful non-citizen and his work as an unlawful non-citizen constitute further breaches of the law. There are no other known instances of non-compliance.

    The time that has elapsed since the non-compliance

37. The applicant last completed the IPC in February 2015 and close to four years have passed since the non-compliance.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

38. There are no other known breaches of the law since the non-compliance. The applicant referred to various breaches of the law prior to the non-compliance.

    Any contribution made by the holder to the community

39. The applicant referred to his involvement with the church. He said that he helped with various tasks in the church and has made donations. The applicant spoke about the support he has provided to his family and helping his nephew to repay a loan. The applicant referred to his regular church attendance.

1. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

   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 if he does not hold any other visa, the applicant may be an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention, although he may be subject to an exclusion period in relation to some visa applications. There is no suggestion that the applicant will be indefinitely detained.

   Whether there would be consequential cancellations under s.140

3. There are no persons whose visas would be subject to consequential cancellations.

   Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child  

4. There is no evidence, and the applicant does not claim, that he would be subjected to any form of harm or persecution as a result of his visa being cancelled or of having to depart Australia. The Tribunal does not consider that Australia’s non-refoulement obligations would be breached as a result of the cancellation.

5. The applicant has one biological child in Australia who is over the age of 18. The applicant’s evidence is that he provides a supportive environment to his partner’s children and acts as a father figure to them. The applicant described his interactions with the children. He states that the family would be emotionally affected if he has to leave the country. He states that his partner would not be able to afford many of the activities which he does with the children. He said that the foster children would not be allowed to leave the country, so his partner cannot follow him to New Zealand. The applicant and his partner informed the Tribunal that they have informed the relevant agency of the relationship and of the applicant’s past convictions, although there is little documentary evidence to support that claim.

6. The Tribunal accepts that the applicant has developed a close relationship with his partner’s children and that he plays a significant role in the children’s upbringing. The Tribunal places weight on the fact that the children may already face disadvantage due to their own family circumstances and it is beneficial to them to have a stable family environment. The Tribunal has formed the view that the best interests of the children require the applicant’s ongoing presence in Australia.

   Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members

7. In his evidence to the Tribunal the applicant spoke about the hardship that he, the children and his other family members may experience if the visa is cancelled and the Tribunal accepts that evidence. The applicant told the Tribunal that prior to coming to Australia, he was working in New Zealand but the company closed. He no longer has a job and he has no place to live in New Zealand. The applicant states that he had better pay in Australia and he provides financial support to his brother overseas which he may not be able to do if he has to leave the country.

8. The applicant confirmed that he discussed with his partner the possibility of applying for a Partner visa but states that his partner is the only person working and it would be financially difficult for her to sponsor him. The applicant’s representative noted that the applicant may be precluded from making the application onshore because of his detention while an offshore application will lead to possibly lengthy separation of the applicant from his Australian family, there can be no guarantee of its approval and the cost of the application may be difficult to meet.  

9. The applicant provided to the Tribunal a number of Tribunal decisions. One relates to the cancelation under s.501 and the Tribunal finds it to be irrelevant for present purposes. One other relates to a cancellation where the charges that led to the ground for cancellation being established had been dismissed. The Tribunal finds it unhelpful. The circumstances of the third case are similar to the circumstances of the present case but the Tribunal affirmed the decision under review in that case.

10. The Tribunal has had regard to all the circumstances of this case. The Tribunal has found that there are grounds for cancelling the visa because the applicant gave an incorrect answer on his Incoming Passenger Card in 2015 when he declared he had no criminal convictions. The applicant did not comply with s.102 of the Act.

11. The Tribunal considers the breach to be significant because the convictions relate to serious offences. The Tribunal places considerable weight on the fact that the decision to immigration clear the applicant was based on the assessment of the applicant’s character and the decision-maker relied on the incorrect information provided by the applicant. If the correct information was known, there was at least a possibility that the applicant would have been considered as a behaviour concern non-citizen and that may have affected his eligibility for the visa.

12. The Tribunal also places weight on the other breaches of the law. In particular, the applicant admits that he failed to mention the convictions on any of his IPCs between 2012 and 2015. The applicant also admits to other breaches of the immigration laws, in particular his overstay in Australia prior to the conviction and his work while an unlawful non-citizen. That shows the applicant’s disregard for the law and these matters suggest that the visa should be cancelled. The cancellation of the visa would not be in breach of Australia’s non-refoulement obligations.

13. Despite these considerations, the Tribunal has formed the view that there are other considerations that support the exercise of discretion in the applicant’s favour.

14. The Tribunal places weight on the time that has passed since the applicant’s convictions. The most recent one occurred in 1994 and there is nothing to suggest that the applicant has been charged or convicted of any offences since that time or that he had engaged in any illegal or anti-social activity. Close to twenty five years have passed since the applicant’s convictions and the applicant explained that since that time he has not used drugs or alcohol and that he has reformed. In the absence of any evidence to the contrary, the Tribunal accepts the applicant’s claims.

15. The Tribunal has accepted the applicant’s evidence that he genuinely believed he did not have to mention the convictions that were more than ten years old. While that was an erroneous belief, the Tribunal is prepared to accept that there was no intention to mislead. The applicant also provided a satisfactory explanation in relation to the use of an honorary title and the Tribunal accepts that he had not deliberately changed his identity to avoid detection.

16. The Tribunal has accepted the evidence of the applicant and his partner that the applicant has a close connection with his partner’s minor children and that he plays a father role for these children. The Tribunal has formed the view that the best interests of the children require the applicant’s ongoing presence in Australia because the children cannot travel or live overseas, and the Tribunal gives this consideration significant weight. The Tribunal also accepts that the applicant maintains strong connections with other family members in Australia and that he provides emotional and financial support to relatives. The Tribunal accepts that a considerable degree of hardship may be caused to the applicant and family members if the applicant was required to leave Australia, although the Tribunal is mindful that the applicant may be eligible to seek another visa in the future, including a Partner visa. The Tribunal also acknowledges the applicant’s contribution to the community through his church activities.

17. The Tribunal finds that there are factors that favour the cancellation of the visa. However, there are strong reasons why the visa should not be cancelled and, overall, the Tribunal has formed the view that such factors outweigh other considerations.

18. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled. This finding does not preclude the Minister from cancelling the applicant’s visa under s.501 of the Act or s.116(1)(e), should the Minister form the view that the applicant’s past criminal conduct warrants such action.

    Conclusion

19. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, the Tribunal determines that the visa should not be cancelled.

    DECISION

20. 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