SALTER (Migration)

[2018] AATA 4198

SALTER (Migration) [2018] AATA 4198 (10 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sheldon James SALTER

CASE NUMBER:  1802584

HOME AFFAIRS REFERENCE(S):           CLF2014/117404

MEMBER:James Lambie

DATE:10 September 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 10 September 2018 at 10:37am

CATCHWORDS
MIGRATION – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – risk to Australian community – lengthy criminal history – breaches of court imposed conditions – breach of bail – contraventions of domestic violence orders – unhappy and tragic events – partner’s evidence – resumption of criminal offending – downplayed criminal convictions – risk to children – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

CASES
Gong v MIBP [2016] FCCA 561

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 January 2018 made by a delegate of the Minister for Home Affairs to cancel the Mr Salter’s Subclass 444 (Special Category) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e)(ii) on the basis that he was satisfied that the presence of the applicant in Australia is or may be a risk to the health or safety of an individual or individuals. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. Mr Salter appeared before the Tribunal on 23 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from his brother-in-law Justin, his sister Kylie, his mother Jennifer and his former partner Kym.

4. Mr Salter was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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)(ii). 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.

   Does the ground for cancellation exist?

7. 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].

8. Mr Salter first arrived in Australia in 1988, at the age of 14, and has resided here since 1993.  The applicant met his former partner, Kym, in 2003.  They were married in 2007.  They have two children, born 2008 and 2012. Both children have special needs. Another child, born 2013, died a year later.  The couple separated in 2015.  The children have resided with their mother at all material times.

9. Mr Salter’s criminal record is set out in the following table:

Date	Charge	Result
15 February 1993	Possess dangerous drug (on 10 February 1993)	Convicted, fined $400, option 65 hours community service
23 April 1993	Wilful and unlawful destruction of property at night (on 22 November 1992)	No conviction recorded, 200 hours community service, $500 compensation
5 July 1994	Revocation of community based order	No conviction recorded, resentenced to 48 hours community service
3 April 1995	Possess dangerous drugs, possession of pipe, permit place to be used for the commission of a crime (on 2 April 1995)	Convicted on all counts, fined total of $700
4 August 1995	Breach community service order	Convicted, fined $300
21 August 1995	Possess property suspected stolen or unlawfully obtained (on 18 October 1995)	Convicted, fined $50
21 August 1995	Breach Bail Act (Contempt). Wilful and unlawful damage to property (on 7 July 1994) Unlawful use of motor vehicle (on 18 October 1994)	Convicted, 1 month imprisonment, fined $750, total restitution $16,690
6 January 1998	Possess utensils or pipes (on 18 December 1997)	Convicted, fined $400
18 October 1999	Possess dangerous drugs; Possess utensil or pipes (on 18 October 1999)	Convicted, fined $1800
24 August 2001	Grievous bodily harm (on 18 December 2000)	Convicted, 18 months’ imprisonment suspended for 3 years
15 November 2002	Grievous bodily harm (x2); Assaults occasioning bodily harm (on 5 May 2001)	Convictions recorded, 337 days imprisonment + 4 months’ imprisonment, 3 years’ probation on release
14 January 2003	Possess tainted property (on 14 December 2001)	Convicted, fined $300
9 May 2003	Breach of suspended sentence	Suspended sentence extended by 6 months
18 March 2005	Assaults occasioning bodily harm in company (on 4 November 2003); Possess dangerous drugs/utensils (on 4 November 2003); Breach probation order; Breach suspended sentence	Convicted, 6 months’ imprisonment cumulative on activated suspended sentence; 6 months’ imprisonment on activated suspended sentence
11 September 2014	Contravene domestic violence order; unlawful use of motor vehicle (on 7 August 2014); Possess stolen property, possess dangerous drugs, possess property used in connection with a drug offence, possess tainted property (on 7 August 2014); Possess dangerous drugs, possess stolen property (x5), fail to dispose of needle and syringe, possess property used in connection with a drug offence (on 11 June 2014)	Convicted, 2 months’ imprisonment suspended for 18 months; On all charges, convicted, 6 months’ imprisonment suspended for 18 months On all charges, convicted, 9 months’ imprisonment suspended for 18 months
30 April 2015	Dangerous operation of vehicle and adversely affected by an intoxicating substance (on 22 May 2014)	Convicted, 18 months’ probation, driver’s license suspended for 9 months
30 August 2015	Contravene domestic violence order (between 4-8 April 2015); Contravene domestic violence order (on 26 May 2015)	Convicted, 6 months’ imprisonment concurrent; suspended sentence extended to 3 January 2017
23 January 2018	Contravene domestic violence order (between 3-6 April 2017); Possess dangerous drugs, fail to dispose of needle and syringe; possess utensils or pipes (on 11 December 2016)	Convicted, 2 years’ imprisonment, released on parole 23 January 2018

1. This is a lengthy criminal history with convictions for serious offences, including grievous bodily harm, assaults, and numerous drug and property offences.  There were several instances of breaches of court-imposed conditions, including contraventions of domestic violence orders, failure to complete community service orders, beach of bail conditions and parole violations.  He was given notice in 2005 that any further criminal convictions might result in the cancellation of his visa on section 501 character grounds.  Nevertheless, further serious criminal offences were committed between 2014 and 2017.  The last of the domestic violence contraventions involved Mr Salter tracking and locating his partner and children at a women’s refuge despite an express prohibition. He has served a total of about two and a half years’ imprisonment.

2. Mr Salter’s personal circumstances include many unhappy and tragic events, including the death of his infant son, the death of his sister and a very serious motorcycle accident. I have taken care to bear these in mind in considering the application of s.116(1)(e)(ii) to the evidence. I have also given consideration to the 9 year hiatus in his offending behaviour following the issue of the visa cancellation warning in 2005.

3. I have also had regard to the submissions made by members of Mr Salter’s immediate and extended family as to his remorse and their assessment that he no longer poses a threat to anyone.  In particular, I have carefully considered the evidence of his partner that she has forgiven him and that he is able to play a positive and constructive role in raising their children.

4. On balance, given the long and serious nature of Mr Salter’s criminal history and his disregard both of the Immigration warning and the terms of his domestic violence orders, I am satisfied on the evidence that his presence in Australia poses a risk to individuals, namely his partner and children.  I further find that this risk has been realised on multiple occasions.

5. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(ii) exists. 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

6. 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’.

7. I have considered the purpose of Mr Salter’s stay in Australia and his claimed compelling need to remain in Australia to contribute to the raising of his family.  He first arrived in Australia in 1988 and has resided here since 1993.  His parents and children are Australian residents.  The matter of his children is discussed in more detail below.  Other than that aspect, I give this factor little weight against the length and seriousness of his criminal record.

8. The applicant’s Special Category (TY444) visa has no conditions attached to it and no weight is given to his compliance with it.  Significant weight, however, is attached to his resumption of criminal offending after being warned of the possibility of its cancellation.

9. As noted above, Mr Salter has a partner and two children.  The cancellation of the visa would cause emotional hardship to him and them and I attach some weight to this.  Against that I must balance the fact that Mr Salter has been convicted of 23 offences since 2014, including contraventions of domestic violence orders.  This offending behaviour poses a risk to their health and safety which, in my view, outweighs the emotional hardship that might be occasioned by the cancellation of the visa. His financial contribution to the household has been significantly limited by the fact and consequences of his offending behaviour and can be given little weight.

10. I have given careful consideration to the subjective factors affecting the circumstances in which the ground for cancellation arose, particularly the stress occasioned by Mr Salter’s accident, the illness of his sister and the death of his son.  However, I cannot ignore his long antecedent criminal history, the use of methamphetamines and the serious domestic violence offences.  While the stressors mentioned above provide some context to the applicant’s subjective circumstances, it cannot be said that the grounds for cancellation arose from circumstances beyond his control.

11. The Department reports that Mr Salter was forthcoming and cooperative in his dealings with it.  I give some weight to this.  Before the Tribunal, Mr Salter was courteous and largely cooperative, but significantly downplayed the facts surrounding his most recent domestic violence conviction until confronted by his partner’s evidence.  This reduces the weight I accord to his cooperation and also the degree of credit I accord to his claimed remorse.

12. There are no consequential cancellations that would occur on the cancellation of Mr Salter’s visa.  I have considered the mandatory consequences in the course of considering the other factors and give them no additional weight. 

13. I have given very careful consideration to the affect any cancellation may have on the best interests of Mr Salter’s children and, in particular, have had regard to the evidence of his mother and partner.  I acknowledge that, in the absence of family violence, it is usually in the best interests of children to have access to the care and support of both parents.  In this case, I must have regard to the proviso and to the significant domestic violence history.  On balance, I find that Mr Salter’s continued presence in Australia poses risks to the children and their mother that outweigh the benefits that might accrue from his contribution to their welfare.

14. I do not consider that any other international obligations are relevant.  I have considered the applicant’s strong family ties to Australia as part of my consideration of other factors and accord that matter no additional weight.

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

    DECISION

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

    James Lambie
    Senior Member