Sarfo-Mensah (Migration)

[2019] AATA 4523

Sarfo-Mensah (Migration) [2019] AATA 4523 (15 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Richard Osei Sarfo-Mensah

CASE NUMBER:  1827621

HOME AFFAIRS REFERENCE(S):           BCC2018/2132390

MEMBER:Kira Raif

DATE:15 August 2019

PLACE OF DECISION:  Sydney

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

Statement made on 15 August 2019 at 3:30pm

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – ground for cancellation – risk to safety of Australian community or individual – pending criminal charges – Assault Occasioning Actual Bodily Harm – extensive criminal history – denied bail – consideration of discretion – nature and seriousness of the criminal conduct – repeated offending over a number of years – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

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 12 September 2018 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 Ghana in May 1995. He was last granted a Special Category visa on 17 December 2011. On 31 July 2018 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 12 September 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 17 June 2019 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 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 which contains the following information.

8. The Department received information from the AFP which indicates that the applicant was charged with Assault Occasioning Actual Bodily Harm which allegedly occurred on 9 February 2018. The AFP provided the Department with a summary of the offence, stating there was a minor motor vehicle collision and when the driver approached the applicant to apologise, the applicant allegedly punched him in the face, breaking his nose.

9. The AFP also informed the Department that the applicant has the following criminal history.

Offence date	Offence	Outcome
25/11/13	Unlicensed driver / rider – license never held	18 months good behaviour order (12 months supervision
25/11/13	Furious / reckless / dangerous driving	19 months good behaviour order (12 months supervision), 3 months driver license disqualification
31/01/14	Minor theft	Without conviction. Good behaviour order
10/02/14	Trespass on premises	Proved, no penalty imposed
10/02/14	Common assault	12 months good behaviour order
05/06/14	First instant warrant
05/06/14	Fail to appear after bail undertaking	Proved, no penalty imposed
10/07/14	Ride / drive motor vehicle without consent	19 months good behaviour order
28/04/17	Common assault (family violence)	24 months good behaviour order; 200 hours community service
28/04/17	Destroy / damage property not exceeding $5000 (family violence)	24 months good behaviour order; 100 hours community service

1. The applicant told the Tribunal that he was convicted of assault in August 2018 and was given a three months custodial sentence. He has also been charged with common assault (family violence) at the end of 2018 and is awaiting trial for that. He has applied for bail but bail has been refused.

2. The applicant addressed the circumstances of these offences in his written response to the NOICC, which is summarised below. Essentially, the applicant submits that prior to 2014 he ‘fell in with the wrong crowd’, left school and lost connections with his family and friends, he started drinking and these factors led to the offending. He submits that he then changed his life around, re-established relationships with his family and friends, completed schooling and found a job. He also started a relationship. The applicant submits that the 2017 incident was due to a heated argument with his girlfriend over money, which he regrets, and he states that the 2018 incident was due to him trying to protect his girlfriend.

3. The applicant told the Tribunal that in August 2018 the other driver was abusive and things got out of control. In relation to the December 2018 incident, the applicant said he was having a bad day during Christmas, he slapped his girlfriend and the neighbours called the police. He is no longer in a relationship.

4. The applicant said in relation to the 2017 assault incident that he kicked the door and accidentally broke the window. He could not recall the circumstances of the assault but said he may have slapped his partner.

5. The Tribunal finds that the applicant’s offending has been persistent, occurring over a lengthy period of time. Whether due to the consumption of alcohol, health issues or other reasons, the applicant displayed violence towards others, with convictions for common assault in 2014 and 2017 and the incident in 2018. He has also shown persistent disregard for the law, given the other offending. Despite the applicant’s claim that he has changed his life around, the Tribunal notes that the 2017 offences involved, on the applicant’s own admission, damage to property and assault of his partner due to an argument. The applicant also admits getting into a fight with the driver in 2018, which resulted, according to the police, in the other person having a broken nose. It appears that the applicant reacts with violence, when dealing with difficult situations or when he feels provoked.

6. The applicant told the Tribunal that he does not believe his presence in Australia is or may be a risk to others. He states that he has been seen by doctors in prison and was told that he has mental health issues that he was not aware of before his detention. He has been diagnosed with schizophrenia and anxiety and is presently on medication. He intends to continue with the medication and counselling when he is released from detention. The applicant states that he is receiving counselling and has completed an anger management course. He also completed Year 12 while in jail and a trading course.

7. The applicant states that if he is released from detention, he would live with his mother. If he can work, he will try to get his old job back or he can get a trade job but if he cannot work, he would be supported by his mother.

8. The Tribunal acknowledges that the applicant has completed courses while in detention and also accepts the applicant’s evidence that he has been diagnosed with conditions that he was unaware of before. If the applicant continues with treatment and medication, it is possible that it would have a positive influence on his future conduct but in the Tribunal’s view, that is speculative. The applicant has been in detention since the most recent offence in December 2018 – as he has been denied bail – and has not been in the community since his treatment started. It is difficult to predict, in the Tribunal’s view, what his future conduct might be if the applicant is released from detention and if he is subjected to the same distractions and provocations. The Tribunal cannot be satisfied that the applicant’s future conduct would be any different.

9. The applicant also told the Tribunal that the possibility of his visa being cancelled, and of having to leave Australia, would act as a strong incentive for him not to re-offend as he now appreciates the consequences. The Tribunal does not accept that claim. The Tribunal notes that the NOICC was issued in August 2018 and the most recent charge relates to conduct in December 2018, which occurred after the NOICC was issued and when the applicant was aware of the consequences. The applicant explained to the Tribunal that at that time he tried to get help but he could not access any service over Christmas.  It is of concern to the Tribunal that if the applicant were to come across any difficulty and if he is unable to access immediate help, he could resort to violence. The Tribunal places weight on the fact that the applicant’s offences are multiple, occurring over a lengthy period and, significantly, they became more significant and violent with time. The earlier offences related to unlicensed and dangerous driving while the latter include several convictions for assault and property damage and the applicant’s evidence is that he is awaiting trial for the most recent charge of assault when he claims he had ‘slapped’ his girlfriend.

10. While the Tribunal acknowledges the applicant’s evidence that he is now under treatment, on medication and has completed an anger management course, as noted above, the Tribunal does not consider that to be adequate to mitigate the risk, given that the applicant has not lived in the community since his treatment started and since the most recent offending.

11. Having regard to the nature and the seriousness of offences – which involve assault and violence towards others – the Tribunal finds that the applicant’s presence in Australia may be a risk to the safety of the Australian community or to the safety of individuals. The Tribunal finds that the ground for cancellation in s.116(1)(e) exists.

12. 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

13. 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

14. The purpose of the Special Category visa is to enable the visa holder to live in Australia. The applicant told the Tribunal that he came to Australia with his mother and brother in 2011. They both live in the ACT and he has a close relationship with them. The applicant states that he has no one in New Zealand. He does not know where his father is. The Tribunal accepts that the applicant is fulfilling the purpose of his travel and stay in Australia. The Tribunal is not satisfied the applicant has a compelling need to stay in Australia, as in the Tribunal’s view, he is able to live independently.

    The extent of compliance with visa conditions

15. There are no known instances of non-compliance with visa conditions.

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

16. The applicant states in his response to the NOCC that he is a hard-working man who has turned his life around but he ran into trouble again. Before he took everything for granted and lost it all but he pulled himself out with the help of his friends and family. He has worked hard to have a good life and hopes for a second chance. 

17. In oral evidence, the applicant told the Tribunal that he has not worked since he has been detained but if released, he hopes to get his old job back and has spoken to his previous employer. He is no longer in a relationship. The applicant told the Tribunal that he has no family in any other country but Australia and he does not know anyone in other countries. The Tribunal accepts that the applicant is settled in Australia and that he has limited or no contacts outside Australia.

18. The Tribunal has also had regard to the statement provided by the applicant’s then partner on 17 June 2019. She outlines the nature of the relationship and the support she and the applicant provide to each other. The Tribunal is mindful of the applicant’s evidence to the Tribunal that he is no longer in a relationship.

19. The applicant told the Tribunal that he would have nobody in New Zealand, and would have nobody to talk to. While the Tribunal accepts that the applicant has family in Australia and his claim is that he has no links to New Zealand, the Tribunal is mindful that the applicant would be able to maintain electronic contact with his family in Australia.

20. The applicant states that he would have nowhere to live because they had sold the house before coming to Australia. The Tribunal is of the view that the applicant could rent a place and find employment, like he intends to do in Australia. The applicant told the Tribunal that he intends to find a job in Australia, either his old job or a job as a tradesperson and in the Tribunal’s view, he could do the same in New Zealand, even if he had no previous exposure to the employment market in that country. The Tribunal has formed the view that the applicant would be able to find employment in New Zealand and support himself financially.

21. The applicant claims that being away from others would not be good for his depression. However, the applicant has not satisfied the Tribunal that he would not be able to access adequate treatment in New Zealand. The applicant said that it would be difficult on his family and his brother with whom he is close and the Tribunal accepts that some hardship would be caused to the applicant and his family if the applicant was to leave Australia.

    Circumstances in which ground for cancellation arose

22. 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.

23. The applicant described the circumstances of his offending in his written response to the NOICC. The applicant states in his response to the NOICC that he arrived in Australia in December 2011 with his mother and brother. He went to college but it was hard because of his speech problem. He started skipping school and hanging out with friends. After a while he fell in with the wrong crowd. He lost support from his mother and it went ‘downhill’. He started drinking and dropped out of school. In 2013 he was in a stolen car going for a joy ride when the police stopped him. He drove away as he did not have a licence and was afraid of being ‘locked’. He was convicted and given 18 months good behaviour bond. He lost his friends and his mother did not want to have anything to do with him, so he became homeless and friendless and his crimes got worse as he was trying to survive. He was involved in fights and was charged with assault in 2014. Finally, he apologised to his mother and friends and returned to school. He met his girlfriend and got a job and had the support of his family and friends. He stayed out of trouble for three years. The applicant states that in April 2017 he had a heated argument with his girlfriend which got out of control. The police were called and he was arrested and charged with property damage and common assault. The applicant states that he regrets doing that but he was very stressed at the time due to financial trouble. The applicant stated in his submission that he and his girlfriend are still together and making plans for the future. (His evidence to the Tribunal is that the relationship has ended.) The applicant states that in February 2018 another driver overtook them, causing a collision. When the driver approached him, the applicant noticed that he smelled of alcohol and asked his girlfriend to call the police. The applicant states that the driver was racist towards him and tried to stop his girlfriend from calling the police. They got into a fight. In relation to the December 2018 incident, the applicant told the Tribunal that he could not get help because it was the Christmas period. He had an argument with his girlfriend and slapped her.

24. The Tribunal acknowledges the applicant’s evidence that since his detention, he has been diagnosed with mental health issues and is receiving treatment. The Tribunal does not consider that the circumstances in which the ground for cancellation arose were beyond the applicant’s control. The convictions show that the applicant was the perpetrator, rather than the victim of family violence.

    Past and present behaviour of the visa holder towards the Department

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

    Whether there would be consequential cancellations under s.140

26. There are no consequential cancellations 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

27. 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 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 accepts that in relation to most visa categories, the applicant may be subject to an exclusion period in Public Interest Criterion 4013 or Special Return Criterion 5002.

28. The applicant told the Tribunal that he hopes to be able to return to Australia to live here and to visit his family.

    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

1. There is no evidence, and the applicant does not claim, that Australia’s protection obligations are engaged in his case. The applicant told the Tribunal that there are no children affected by the cancellation. The Tribunal finds that Australia’s international obligations would not be breached as a result of the cancellation.

   Any other relevant matters

2. The applicant told the Tribunal that a couple of bad things happened in his life but he has turned his life around. He had a job and a relationship but since his medical condition, his life has dwindled to nothing.

3. The applicant also told the Tribunal that if he is not in Australia, it would be hard on his family. He claims he has a close relationship with his brother and it would be difficult if they are not in the same country. The Tribunal accepts that this would be the case.

4. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant’s presence in Australia may be a risk to others and that there are grounds for cancelling his visa.

5. The Tribunal accepts that the applicant has been living in Australia for close to eight years and that his immediate family – his mother and brother – are in Australia and are settled here. The Tribunal accepts that the applicant would have very little, if any, support outside of Australia and that he claims to have no links in New Zealand. The Tribunal accepts that the applicant prefers to remain in Australia and that he is likely to be able to maintain a closer relationship with his family if he remains in Australia, although the Tribunal has formed the view that he could maintain that relationship even if he is not in Australia. Although the Tribunal has formed the view that the applicant should be able to find employment and a place to live in New Zealand, the Tribunal accepts that some hardship would be caused to the applicant and his family if his visa is cancelled and if he is required to leave Australia. The cancellation of the visa would not breach Australia’s international obligations.

6. In this case, the Tribunal gives greater weight on the circumstances in which the ground for cancellation arose. The applicant’s offending has been serious and multiple assault convictions indicate that he has acted violently towards others. Such conduct continued even after the applicant was issued with the NOICC, when the possibility of his visa being cancelled was known to him. The Tribunal gives limited weight to the applicant’s evidence that he is now receiving treatment for a condition which was not diagnosed before his detention but as the applicant has not lived in the community since starting the treatment, its effect on his future conduct cannot be determined with any certainty.

7. The Tribunal has formed the view that the nature and the seriousness of the criminal conduct and the fact that it occurred repeatedly over a number of years, outweigh other considerations. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

   DECISION

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

   Kira Raif
   Senior Member