Schofield (Migration) - [2018] AATA 4828

Schofield (Migration) [2018] AATA 4828 (12 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Peter Douglas Schofield
CASE NUMBER:  1811111
HOME AFFAIRS REFERENCE(S):           70824263158
MEMBER:Kate Millar
DATE:12 October 2018
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.
Statement made on 12 October 2018 at 12:42pm

CATCHWORDS
MIGRATION – Cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – risk to Australian community – compelling reason – terminal illness – forensic psychiatry report – sentencing remarks – tendency to minimise offences – overstatement nature of family relationships – overstate employment – breach of domestic violence order – ongoing protection orders – stalking risk profile – IHMS report – ECOG performance – ability to send text messages – minimal contact with children – connections in home country – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 32, 116, 359A, 362A

CASES
Gong v MIBP [2016] FCCA 361
Tien v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Mr Schofield is a citizen of New Zealand, and until his visa was cancelled on 16 April 2018, was in Australia on a Subclass 444 (Special Category). It is not entirely clear when he first arrived in Australia, however Mr Schofield says this was September 1968.
On 29 November 2016, Mr Schofield went to the house of his ex-partner with an axe. He broke into her house, and an altercation ensued with her current partner. In the course of being restrained Mr Schofield suffered a heart attack.
On 13 April 2018 Mr Schofield was convicted of entering a dwelling at night while armed, unlawful assault occasioning actual bodily harm whilst armed, and contravention of a domestic violence order. He was sentenced to four years’ imprisonment for the enter dwelling offence, two years’ imprisonment for the unlawful assault, and a protection order was issued until 2023. His terms of imprisonment were concurrent and suspended after he had served 497 days.
As a result of being convicted of these offences, a delegate of the Minister for Immigration cancelled his Subclass 444 (Special Category) visa under s.116(1)(e) of the Migration Act 1958 (the Act) on the basis that Mr Schofield 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. Having found that this ground to cancel Mr Schofield’s visa existed, the delegate considered the visa should be cancelled.
The issue in the present case is whether a ground for cancellation is made out, and if so, whether the visa should be cancelled.
Mr Schofield appeared before the Tribunal on 14 August 2018 to give evidence and present arguments and was represented by his registered migration agent. The Tribunal also received oral evidence from Ms Christine Schofield, Mr Frank Harrison, Ms Colleen…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] AATA 4828
Decision Date: 12 October 2018

CaseChat Overview and Summary

This matter concerned an appeal by Mr Schofield against the cancellation of his Special Category (Temporary) (Class TY) visa, subclass 444. The dispute arose from the Minister's decision to cancel Mr Schofield's visa under section 116(1)(e) of the Migration Act 1958 (Cth) on the grounds that his presence in Australia posed a risk to the health, safety, or good order of the Australian community. The decision was reviewed by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e) was established, and if so, whether the Minister's discretion to cancel the visa was exercised appropriately. This involved determining if Mr Schofield's past conduct, specifically breaches of a domestic violence order and associated charges, constituted a risk to the safety or good order of the Australian community. The Tribunal also considered whether Mr Schofield's personal circumstances, including his family connections, employment history, and health, presented compelling reasons against cancellation.

The Tribunal reasoned that the ground for cancellation under section 116(1)(e) was made out, noting that the expression "good order of the Australian community" encompasses activities that might be disruptive to the administration of law or create public disruption. Mr Schofield had a history of domestic violence orders against him, including a conviction for aggravated breach of a domestic violence order, which led to a probation period and a further protection order. The Tribunal found that Mr Schofield's evidence regarding his relationships and community connections was to be treated with caution due to a forensic psychiatry report indicating a tendency to minimise offences and overstate the nature of his relationships and employment. While acknowledging Mr Schofield's long residency in Australia and his claims of community involvement, the Tribunal concluded that these factors did not outweigh the risk posed by his past conduct.

The Tribunal affirmed the decision to cancel Mr Schofield's visa, finding that the ground for cancellation was established and that there were no compelling reasons to exercise discretion against cancellation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

As a result, Mr Schofield’s evidence about matters such as his relationship with others and his connections with the community are to be treated with caution, and cannot be relied on in the absence of other supporting evidence. CONSIDERATION OF CLAIMS AND EVIDENCE 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. 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. In this case, the delegate found the ground in s.116(1)(e) had been made out and that Mr Schofield’s visa should be cancelled.Does the ground for cancellation exist? 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]. 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. Mr Schofield was the subject of a domestic violence order made in July 2015, restraining him from committing domestic violence towards Ms X and prohibiting him from going within 100 metres of her home or place of work, following her or directly contacting her. He was charged with a contravention of a domestic violence order and on 10 December 2015 he was discharged with no conviction recorded and a recognisance of $300 and was to be of good behaviour for a period of three months. Mr Schofield was asked to respond to the information that there was a domestic violence order against him naming Ms X as the protected person, and that he had previously been charged with a breach of the protection order. In relation to the domestic violence order, further information was also provided to Mr Schofield under s.359AA of the Act from the National Police Certificate that he had a prior charge of contravention of a domestic order on 17 September 2015. On 10 December 2015 this was heard in the Pine Rivers Magistrates Court with Mr Schofield required to enter a recognisance of $300 and to be of good behaviour for a period of three months. There was no conviction recorded. As a result of the offences of 29 November 2016, he was also charged and convicted of an aggravated breach of a domestic violence order, and a 12 month probation period was imposed together with a further protection order issued for another five years.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 visa should be cancelled.Consideration of discretion 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’. Mr Schofield said he arrived in Australia in September 1968 to work and travel, and was granted residency in 26 February 2001. He has a son, Ivan, born in 1971 of his first relationship in Australia. He married Mrs Schofield in 1978 and there are two children, Natasha and Jason, of this relationship. He was involved with Cubs and Scouts and says he had the constitution of Queensland Cubs and Scouts changed so that girls could join, with his daughter Natasha being the first girl to join. He worked as a mortgage broker, but said the business was struggling and Mrs Schofield started work for a psychiatrist to assist with research. He states that after Mrs Schofield started medication for depression her personality changed. They agreed to separate for six months but once she had moved out he was served with divorce papers. They divorced in 1994 with Mrs Schofield receiving 80% of the assets and he retained the house in Kallangur. He states he also had to pay $26,000 per annum in child support. His business ceased operating and in 1995 he commenced work as a diesel fitter for Drake Industrial who had a contract with the Department of Defence, and he worked as a diesel fitter until 1999 when he was granted disability support pension due to an injury to his shoulders. During this time he met his third partner who he invited to move in with him. He states that from 2004 until 2011 he was involved in a campaign to construct a railway line between Petrie and Kippa-Ring. He met with various politicians and was the head petitioner in a petition presented to the Queensland Parliament. In oral evidence he said he was responsible for a $1.5 billion rail link, however it was clarified he was head petitioner for the rail link. In 2009 his brother, who lived in New Zealand, died from asbestosis. He said before his brother’s death his brother had power of attorney over his parents’ estates. After his brother’s death, his sister Carol who was also in New Zealand had power of attorney. In 2013 his sister died, but he was informed by her husband of her death too late to attend the funeral. His mother died approximately 29 days after his sister. He and Ms X went to New Zealand to attend his mother’s funeral; Ms X returned to Australia a short time after as Ms X was having problems with the tenants in her house. He also returned to Australia and says this was to help Ms X sort out the problems with her tenants.