Shaqlane (Migration)

[2019] AATA 6140

Shaqlane (Migration) [2019] AATA 6140 (16 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdiwali Ahmed Shaqlane

CASE NUMBER:  1911589

HOME AFFAIRS REFERENCE(S):          BCC2019/254087

MEMBER:K. Chapman

DATE:16 September 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 16 September 2019 at 10:27am

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) – Subclass 444 visa – whether the applicant is a risk to safety of the community – criminal convictions – mental health condition – factors in favour of cancelling the applicant’s visa outweigh those factors to the contrary – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 359, 501

CASES
Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 April 2019 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 delegate cancelled the visa under s.116(1)(e)(i) on the basis that the applicant had been charged with various criminal offences, and therefore his presence 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.’ 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. On 26 June 2019, the Tribunal issued a Summons to the Commissioner of the Queensland Police Service seeking documents relating to the applicant’s criminal history. The response to Summons was made promptly and included material pertaining to both proven and discontinued criminal matters. On 12 July 2019, the Tribunal wrote to the applicant through his representative, pursuant to sections 359A and 359(2) of the Act, inviting him to respond to information contained in the Queensland Police Service documentation returned by Summons and to provide information concerning why his Subclass 444 visa should not be cancelled. Following the grant of extensions of time, the Tribunal received material from the applicant responding to the invitation including submissions, medical information, documentation concerning a prior decision of the Tribunal (differently constituted in matter 1916891) affirming a decision to refuse the grant of a Bridging Visa E Subclass 050, and documentation pertaining to the proven and discontinued criminal charges. The aforementioned material has been duly considered by the Tribunal.

4. The applicant was conveyed from immigration detention and appeared before the Tribunal in person on 13 August 2019 to give evidence and present arguments. He was represented by his registered migration agent, who is a solicitor (‘the representative’). The applicant has a [medical condition] and the Tribunal made arrangements [to accommodate his special needs]. The applicant also has mental health conditions and submissions were made that in immigration detention he was not receiving medication that he seeks. Following an adjournment, the applicant and his representative confirmed that the applicant was in satisfactory health to proceed with the review hearing. The applicant and representative also confirmed that the applicant was properly seated so as to hear the proceedings.

5. The Tribunal also took oral evidence in person from Mr Adan Shaqlane (whom the applicant described as his father) and via telephone from Ms Ifrah Adoontii (the applicant’s aunt who resides in Melbourne). The applicant decided not to have a third person provide evidence. An interpreter in the Somali and English languages was made available by telephone to assist any of the witnesses as may be required, however ultimately their services were not so required.

6. The Tribunal took regular breaks during the review hearing and provided opportunities for the applicant to confer with his representative in private. The Tribunal is satisfied that the applicant was afforded a fair opportunity to present his case and no objections to the contrary were made. The applicant submitted medical reports concerning a condition [shortly] before the review hearing commenced. He also submitted medical reports from the service provider in immigration detention at the review hearing. Additionally, an email was received from Ms Adoontii, via the representative, during the review hearing. All submitted material has been duly considered by the Tribunal.  

7. The applicant, through his representative, requested time following the review hearing to provide further evidence. In particular, the representative indicated he wished to submit a copy of CCTV footage relevant to the applicant’s conviction for Wilful Damage (which the representative indicated would be easily provided to the Tribunal). This request was duly granted by the Tribunal and it was initially agreed that two days following the review hearing was sufficient for this purpose. The Tribunal also requested the representative to provide a contemporary family tree for the applicant.

8. On 15 August 2019, the representative requested a further week to provide a transcript of the Court sentencing of the applicant. He also indicated that it was proving difficult to obtain the CCTV footage earlier outlined. The Tribunal duly granted an extension until 22 August 2019 for further evidence to be provided in the review.

9. On 23 August 2019, the Tribunal received written submissions outlining the family composition of the applicant. Additionally, on 23 August 2019 the representative wrote to the Tribunal advising the transcript of sentencing remarks would “be ready next week instead of this week.” On same day, the Tribunal wrote to the applicant through his representative providing a further extension of time until 30 August 2019 for further evidence to be submitted. The Tribunal also requested the representative to confirm by that date whether any of the applicant’s family members are Australian citizens or permanent residents (this has not been done at the time of this decision).  

10. On 2 September 2019, the representative wrote to the Tribunal indicating he was unable to provide the transcript of sentencing as Auscript were “unable to provide the Correct transcript on Friday, 30 August 2019, and have not provided us with an update.” Attached to this correspondence was an email from the representative’s office to Auscript of 30 August 2019 stating, “If the rest of the transcript cannot be provided can you please organise a refund of the remainder amount.” The representative also contended that the applicant is very remorseful for the proven offences and he was not medicated at that time which is a “considerable feature of this matter.” The Tribunal has duly considered these submissions.

11. On 2 September 2019, the Tribunal wrote to the representative asking him to confirm by 5pm on 3 September 2019 whether he sought more time to provide further post-hearing material or not. The representative was asked to clarify his position as a matter of urgency given the applicant remains in immigration detention. On 4 September 2019 at 7:47am, the representative wrote to the Tribunal indicating that as of 3 September 2019 at 5pm he had received no further correspondence from Auscript. Further, he indicated that he cannot provide further documents in respect to the transcript, noting that the applicant relies upon the evidence he has provided to the Tribunal, including oral evidence.

12. On 10 September 2019, the Tribunal wrote to the representative asking him to confirm by 5pm on 12 September 2019 whether he sought additional time to provide further post-hearing material or not. On 13 September 2019 at 9:02 am, the representative wrote to the Tribunal to advise that Auscript could not provide a copy of the transcript of the relevant sentencing remarks. He also confirmed that no further material was to be submitted to the Tribunal. For the sake of completeness, the Tribunal notes that it has duly considered all material submitted to it in connection with the review.  

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

    BACKGROUND

14. The applicant, Mr Abdiwali Shaqlane, is a 23 year old national of New Zealand. He was born in Somalia and moved to New Zealand as a small child, completing all of his primary schooling and some of his secondary schooling there. The applicant has acquired New Zealand citizenship. He moved to Australia in 2011 with his family when aged 14 years. His most recent Subclass 444 visa, issued on 14 September 2015, was cancelled by the delegate on 15 April 2019. At that time he was held on remand at the Arthur Gorrie Correctional Centre with multiple criminal charges pending, including for serious offences relating to allegations concerning armed robbery and grievous bodily harm. The charges pertaining to the aforementioned specified allegations were subsequently discontinued and he went before the Court on 17 June 2019 in relation to outstanding matters. The applicant was then released from remand and transferred to immigration detention where he remains at the time of this decision. 

15. According to information obtained from the Queensland Police Service, which was also provided to the Tribunal by the applicant in submissions, he has obtained the following proven criminal history:

    -17/06/2019 – Breach of Bail Condition (on 24/12/2018). Conviction recorded, probation imposed for 18 months;

    -17/06/2019 – Possess Utensils or Pipes etc. for Use (on 9 December 2018). Conviction recorded, probation imposed for 18 months;

    -17/06/2019 – Breach of Bail Condition (on 13/12/2018). Conviction recorded, probation imposed for 18 months;

    -17/06/2019 – Breach of Bail Condition (on 14/12/2018). Conviction recorded, probation imposed for 18 months;

    -17/06/2019 – Breach of Bail Condition (on 17/12/2018). Conviction recorded, probation imposed for 18 months;

    -17/06/2019 – Breach of Bail Condition (on 23/12/2018). Conviction recorded, probation imposed for 18 months;

    -17/06/2019 – Stealing (on 1/12/2018). Conviction recorded, probation imposed for 18 months;

    -17/06/2019 – Wilful Damage (on 21/10/2018). Conviction recorded, Community Service Order of 200 hours and Restitution of $10,754 imposed;

    -17/06/2019 – Stealing from the Person (on 18/12/2018). Conviction recorded, Community Service Order of 200 hours imposed;

    -17/06/2019 – Possession of a Knife in a Public Place (on 22/12/2018). Conviction recorded, Community Service Order of 200 hours imposed; and

    -17/06/2019 – Unauthorised Dealing with Shop Goods (on 21/10/2018). Conviction recorded, not further punished.

16. The applicant first arrived in Australia on 5 May 2011 at the age of 14 years when his family moved to this country. He completed years 10-12 of his secondary schooling in Brisbane. The applicant has resided with family in both Brisbane and Melbourne at various times. He has made two short return visits to New Zealand and he has also travelled to Europe. The bulk of the applicant’s family reside in Australia, with the balance residing in Kenya. The applicant has recently entered into a long distance relationship with a girlfriend who lives in Sydney. The applicant has no children.   

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. Under s.116 of the Act, the Minister may cancel a visa if he 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) of the Act. 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?

18. 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].

19. 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.

    Evidence at the review hearing

20. The applicant’s oral evidence, which was provided in person, may be summarised as follows. He has no pending criminal charges. Regarding his response to the Notice of Intention to Consider Cancellation (NOICC) of his visa of 4 March 2019, he was in gaol at the time and wrote his response without assistance. The applicant contends that the Department didn’t take his response seriously. He saw the representative a few weeks after the response was made. The Tribunal raised with the applicant that several charges against him have been discontinued and it proposed to place no adverse weight upon them, inviting his comment. The applicant had no comment to make. The Tribunal notes that during the review hearing it was contended that the Police racially profiled the applicant with respect to the discontinued charges and the Tribunal on several occasions sought to reassure the applicant that no adverse weight was to be placed upon such discontinued charges.

21. The Tribunal canvassed the applicant’s proven criminal history with him, which had been provided to him in the s.359A correspondence of 12 July 2019 and which he also submitted to the Tribunal in various documents through his representative prior to the review hearing. The applicant explained that his breaches of bail were due to events at the time. He had fallen out with his father (Mr Adan Shaqlane), was not on good terms with him and had left the residence. The applicant indicated he could not attend the Police Station because he was not living at home, was ill and had ceased his medication for [Medical Condition 1]. The applicant advised he ‘hung out with bad friends’ at the time. He stole from a 7 Eleven store because he was hungry and drinking a lot. The applicant claimed he was wrongfully accused of two armed robberies because of his African descent and was not convicted of them. He stole a mobile telephone from another person because he didn’t have a telephone himself then. He regrets his actions.

22. When asked by the Tribunal to outline his conduct on 21 October 2018 in relation to his conviction for Wilful Damage, the applicant explained that he stole food and drinks from the 7 Eleven store. He hadn’t slept for three days and nights and was homeless. The applicant stated that he ‘couldn’t take living with his father’ so he left the residence. He was not working at the time. The applicant contends that his sleeplessness and marijuana usage caused him to damage the store. He advised that when he stole items from the store, the doors were locked on him so he used force on the doors to escape by prising them open. The applicant indicated he would repay the $10,754 damage caused.

23. The Tribunal read to the applicant a portion of the facts from the Queensland Police Service Court Brief concerning the conviction for the aforementioned offence (at folio 72 of the Tribunal file), facts which he plead guilty to:

    “The front glass doors were locked and the defendant has spent a lengthy amount of time forcibly smashing through the glass doors to exit the store. The defendant has wilfully shattered the glass door and exited the store through a gap he has forced open in the doors still in possession of the stolen property.”

24. The Tribunal raised with the applicant that his description of the incident did not refer to breaking the glass of the door, to which the applicant responded that he didn’t recall breaking the glass. The Tribunal raised with the applicant that his evidence might appear to be downplaying his conduct, inviting his comment. The applicant and the representative advised the Tribunal that his evidence was his recollection of events at the time. The applicant maintained that he doesn’t remember the glass being broken. The representative offered to submit the Closed Circuit Television (CCTV) footage following the review hearing. As previously outlined, this footage was not provided. Following careful consideration, the Tribunal places high weight upon the evidence contained in the Court Brief pertaining to this offence given its official source and the applicant’s guilty plea. Accordingly, the Tribunal is satisfied that the applicant’s conduct in relation to this offence is as described in the Court Brief.    

25. When asked by the Tribunal to outline his conduct on 18 December 2018 in relation to his conviction for Stealing from the Person, the applicant explained that he was at a mate’s house and knew a friend of a friend there. He was not in a good state and couldn’t find the person he was looking for. He took the mobile telephone from the female and did not return it. The Police found the telephone when they searched him later in relation to other matters.

26. When asked by the Tribunal to outline his conduct on 22 December 2018 in relation to his conviction for Possession of a Knife in a Public Place, the applicant explained that he was at a mate’s house. That mate ‘had a problem with some people’ according to the applicant, so he took a machete off him. The applicant subsequently went to Fortitude Valley and had the machete under his pants. He was approached by the Police. The applicant initially advised that he admitted to Police that he had the machete. According to the applicant it was not his intention to do anything with the machete and he was trying to ‘save’ his mate. He advised that it was stupid to carry it, but he didn’t want to leave it anywhere so people could pick it up and use it.

27. The Tribunal read to the applicant a portion of the facts from the Queensland Police Service Court Brief concerning the conviction for the aforementioned offence (at folio 61 reverse side of the Tribunal file), facts which he plead guilty to:

    “At approximately 10:55pm on Saturday the 22^nd December 2018, a concerned member of the public approached Police regarding the defendant’s behaviour.

    The Informant advised the defendant was standing outside barriers to a licenced premise, however was leaning over speaking to females who were seated within the barrier. Informant states that they observed the defendant lift his shirt whereby they observed a long object with a taped handle. Believing it to be a weapon, they advised Police.

    Police approached the defendant, introduced themselves and requested he provide identification. The defendant advised he had no identification on him. When advised Police suspected he was in possession of a weapon and to voluntarily lift his shirt, the defendant became belligerent and refused to co-operate with Police.

    Police advised the defendant he was detained for a search and upon lifting the defendant’s shirt, observed the handle of, what appeared to be a knife, to be taped with duct tape. Police subsequently advised the defendant he was under arrest for possessing a knife in a public place where he was escorted to Fortitude Valley Mall Post.

    Once at the Mall Post, the knife was removed where it was revealed it was in fact a machete. The defendant stated at this time that he only carried it for protection.

    The machete was seized and the defendant issued a Notice to appear before the Brisbane Magistrates Court on the 16^th January 2019. Upon the notice being explained, the defendant again stated it was for protection and asked what he was supposed to do in the event he was attacked. Police advised he was not to carry such a weapon or use one under such circumstances.”   

1. The Tribunal raised with the applicant that his description of the incident appeared inconsistent with the above Court Brief in terms of his reason for having the knife and his voluntary admission of carrying it, to which the applicant responded that Police aggressively pushed his shirt and he pushed back. The applicant stated that when Police asked him why he was carrying the machete, he wasn’t honest with them at the time because he didn’t want to dob in his mate. The applicant advised he was telling the truth to the Tribunal. The representative submitted that the contents of the Brief are ‘generally accurate’, mitigating factors were presented at sentencing, it is a crime for which he is remorseful, and he was homeless, not taking medication and suffered [Medical Condition 1] which didn’t help.

2. The Tribunal raised with the applicant that his proven criminal history might tend to suggest that his presence 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. The applicant was invited to comment and advised he did not deny what he did was wrong. He has nobody back in New Zealand. His father, step-mother and siblings are in Australia and will do anything to help him. The applicant advised that it will be worse for him in New Zealand both mentally and physically, his family will be disappointed in him and he needs another chance to change. He is guilty of the matters for which he was convicted and has learned his lesson following 6 months in gaol (remand) and 2 months in immigration detention. He has had a long time to think about his mistakes, wants to change for the better and respects the environment in Australia.

3. The Tribunal raised with the applicant that his proven criminal history might tend to weigh in favour of cancelling his visa, inviting his comment. The applicant responded that his visa should not be cancelled as these are the first crimes he has done and he even went to gaol. He received Probation and wants to complete it. He will attend all necessary appointments. Going back to New Zealand will mean he will start from scratch. He has faced the consequences for his admitted crimes.

4. The Tribunal canvassed with the applicant that he submitted documents regarding a prior decision of the Tribunal (differently constituted) in review of a decision to refuse him the grant of a Bridging Visa E. The applicant did not wish to make any comment about this material. The representative submitted that the applicant objected to the reference in the prior decision to him not seeking medication for his mental health in immigration detention. The representative outlined that he has been in contact with the Department in relation to the health care of the applicant, although he noted the medical professionals working in the detention centre have not been minded to issue medication other than [a specific medication] as reflected in the submitted reports. The Tribunal asked the applicant if he tried to seek medication in immigration detention for his mental health and he replied that he had. The Tribunal accepts that the applicant has requested medication for his mental health in immigration detention.

5. The Tribunal canvassed with the applicant his background circumstances, some of which are detailed above. The applicant came to Australia most recently on 14 September 2015 as he resides in this country with his family. He outlined that his father (Mr Adan Shaqlane), stepmother and their five young children reside together with an adult cousin at the residence where he was living prior to being arrested. The applicant plans to return to that residence if released from immigration detention. He has a step-grandfather who is the father of his stepmother. This step-grandfather also has family members residing in Brisbane. The applicant has many aunts and uncles residing in Melbourne, along with his aunt where he has lived in the past. In late 2017 the applicant was residing in Melbourne when he was treated in a mental health centre at Footscray, following which he was transferred to a similar centre at Woolloongabba in Brisbane. The applicant has an uncle in Perth and he has a girlfriend who lives in Sydney. The applicant has known her for approximately four years and they have been dating for a few months. The applicant has never lived in Sydney. He has no children of his own.

6. The applicant’s four biological grandparents reside in Africa, as does his biological mother (who never resided in Australia) and an uncle. The applicant was raised by his maternal grandmother whom he considers to be his mother. She came to New Zealand with him and subsequently resided in Melbourne with his aunt (Ms Adoontii). The applicant’s maternal grandmother departed Australia around four years ago to live in Kenya. His biological grandfather has also returned to live in Africa. When the applicant lived in New Zealand as a child all of his family resided in that country. They have now all left and the applicant has no family members residing in New Zealand.

7. Following the review hearing, the representative provided a ‘Family Tree’ for the applicant. It indicates he has his father (Mr Adan Shaqlane) and five siblings residing in Brisbane. The applicant has four uncle’s, three aunt’s and twenty cousins residing in Melbourne. He has an uncle and two cousins residing in Perth and two grandparents reside in Kenya. The applicant is estranged from his mother and does not know her whereabouts. As previously outlined, following the review hearing the Tribunal requested information concerning the citizenship of the aforementioned relatives of the applicant, however none was received. Having regard to the balance of the evidence before the Tribunal, it is apparent that these relatives hold New Zealand citizenship in addition to any other citizenship they may possess.

8. When asked by the Tribunal if he would suffer hardship if his Subclass 444 visa was cancelled, the applicant replied that he would. He stated that things will go hard for him. He will be disappointed in himself and his family will also. He wants to move forward with his girlfriend in Sydney. He also wants to help his grandparents because they were the ones there for him. The applicant wants another chance, he wants to find work and study. He will have no family and no income if he returns to New Zealand. He wants to study in the mental health field because of his experiences. He says it will be hard to take medication and he will hurt mentally if the visa is cancelled. The applicant seeks a form of immigration probation if that is available.

9. When asked by the Tribunal if there are any circumstances beyond his control that led to his Subclass 444 visa being considered for cancellation, the applicant advised that his visa was cancelled because of criminal charges that were discontinued. He pleaded guilty to the other charges and will pay off his $10,754 debt. The applicant has done his time in remand and has got his head together. He received Probation through the Courts. He wants the chance to prove himself with Probation.

10. When asked by the Tribunal if anyone else would suffer hardship if his Subclass 444 visa is cancelled, the applicant advised that his family would suffer as they would have wasted time and money. His parents won’t think he is a good person, he is not being helped in immigration detention and his family is stressing about money.

11. The Tribunal canvassed with the applicant his medical conditions. He suffers [Medical Condition 1]. The applicant has been through a lot with his mental health and was treated in prison but is not so in immigration detention. The applicant stated to the Tribunal that the first time in immigration detention he ‘didn’t let the Nurse know’ about his mental health condition but subsequently told them. He stated that he has seen a psychiatrist but they ‘think he is normal’. The applicant advised the doctors are monitoring him in immigration detention but they are not administering [certain medication]. He is being given [specified] pills under supervision. The applicant maintains that he needs to be medicated for his [Medical Condition 1] and his representative has contacted the staff at the immigration detention centre about this topic. The representative submitted that he has brought the matter to the attention of staff but he cannot argue with the current medical professionals who have determined not to administer such medication. The applicant also referred to [another disease] which was successfully treated in the past (there is no medical evidence before the Tribunal regarding this matter and it is satisfied this condition has resolved) and to not having a passport which was requested by the staff in immigration detention.

12. When asked by the Tribunal if there is any reason he could not obtain medical treatment in New Zealand if he returned to his country of nationality, which is an advanced country, the applicant responded that he will be traumatised by going back if his family is not there. He wants to be near his family and has never been isolated from them other than for short periods. The applicant advised that there was no issue with obtaining medication in New Zealand, rather he will feel traumatised without his family. He fears losing his family in Australia and indicated his grandparents were too far away in Africa.

13. When asked by the Tribunal of his future plans, the applicant advised that he wants to prove to his family that he can better his life and assist Australia. He wants to study in the mental health field and help Australians. He wants to help people and needs another chance.

14. In response to questions from the Tribunal, the applicant advised he had always been truthful and cooperative with the Department of Home Affairs, and that nobody else is attached to his visa who would receive a consequential visa cancellation if his own visa were cancelled. The Tribunal raised with the applicant that if his visa was cancelled he would be an unlawful non-citizen, remain in immigration detention, be able to make only limited further visa applications in Australia, be liable to removal from Australia and likely face difficulties in obtaining a new Australian visa in the future. He was invited to comment upon the aforementioned matters and indicated that he has young brothers and sisters in his family. As they grow up he doesn’t want them to see him in that position. He doesn’t want to tell them he can’t live in Australia. He has a powerful and peaceful religion, being Islam, and wants to protect his sisters and brothers. He has made mistakes but wants the chance to change. 

15. The Tribunal informed the applicant that because he has minor relatives, it is considering very carefully Australia’s international obligations arising from the Convention on the Rights of the Child (CROC) that pertain to his circumstances. When asked if there were any other international obligations relevant to his case, the representative confirmed that there were not. When asked by the Tribunal if he had formed strong family, business or other ties in Australia, the applicant replied that he did with respect to his family. He confirmed to the Tribunal that he was last employed around August 2017 as a casual working in a warehouse in Melbourne. When asked by the Tribunal if there is any other reason he cannot return to New Zealand, the applicant advised that everything will be hard there regarding his lack of family, siblings, girlfriend and his finances.

16. When asked by the Tribunal if there is any other matter at all he wished to be considered in this review, the applicant advised that he has told the truth and hoped he has given as much information as he could. He outlined that he is 23 years old and wants to better himself. He has learned the hard way, having been surrounded by criminals in remand. He loves playing soccer, wants to help Muslim youth in Brisbane and likes to help people, things he hasn’t done for over 9 months due to his situation.

17. The Tribunal took oral evidence from Mr Adan Shaqlane (described as the applicant’s father) in person. It may be summarised as follows. His son has a sickness problem and his issues arose because he stopped taking medication. The applicant left home and couldn’t be found. He had taken medication consistently for 8 months then stopped due to side effects and got into trouble including fights. He knows the applicant is guilty of the 7 Eleven store damage and has been sentenced to perform community work.

18. Mr Adan Shaqlane explained that the applicant argued with the nurse who visited the home to administer medication. He was at work when this happened. Mr Adan Shaqlane advised that he needs to look after the applicant. Mr Adan Shaqlane’s sister, the applicant’s aunt, has offered him a job in her company which conducts administration. Mr Adan Shaqlane is confident the applicant will take his medication. He noted all of the applicant’s family reside in either Brisbane or Melbourne and indicated the applicant had lived in the latter city for a time. The applicant has not been back to Melbourne since moving back to Brisbane in late 2017. Mr Adan Shaqlane advised that if the applicant’s visa is cancelled then the whole family will have to move back to New Zealand. Mr Adan Shaqlane resides with his wife and five children who are aged 2 months, 5, 6, 9 and 10 years of age (they are the half-siblings of the applicant).

19. At the conclusion of Mr Adan Shaqlane’s evidence, the applicant advised that his father is correct about the nurse administering his medication. The applicant stated that he had side effects of the medicine and refused to take it at that time. He said Mr Adan Shaqlane didn’t understand the side effects. Following the cessation of medication then ‘everything started happening’ according to the applicant.

20. The Tribunal took oral evidence from Ms Ifrah Adoonti (the applicant’s aunt) via telephone from Melbourne. It may be summarised as follows. She knows ‘most things’ about the applicant. When he was a child in New Zealand he had several operations on his ear due to hearing problems. She indicated that his visa should not be cancelled because all of his family live in Australia. She will provide him with employment and is encouraging him to study. He apparently regrets his actions and she is hoping to change him. His health is poor. Ms Adoonti has an employment related company in Melbourne and plans to open an office in Brisbane towards the end of 2019. When this happens she can employ the applicant there to perform office work and she will pay him to study also.

21. Ms Adoonti last saw the applicant in person in 2018, however she speaks regularly on the telephone to him. When the Tribunal canvassed with her the proven offences of the applicant she had no knowledge of them. She indicated the representative had sent her this information by email but she had been too busy to read it. She stated of the applicant, ‘I’m sure he is a good man.’ Ms Adoonti wants to help the applicant, loves him and apologises for anything he has done. She stated that the applicant’s mental health is ‘very dangerous’ and he needs care. At the conclusion of her evidence the applicant had nothing to add.

22. The Tribunal raised with the applicant that at times during the review hearing he tended to downplay his proven criminal conduct, for example by indicating that the glass was not smashed in relation to the 7 Eleven incident, and that he was holding the machete for a friend, when the Court Briefs suggested otherwise. The applicant was invited to comment and indicated that the mistakes he had made happened for a reason and he didn’t lie. He stated that he tried to help his friend with the knife and wasn’t hurting anyone. Regarding 7 Eleven, he indicated that whether or not the glass was broken the doors were damaged and he must pay off $10,754 and has 18 months’ probation. He will keep in contact with the Department if he is required to do so.

23. The applicant indicated that he is 23 years old and is close with his aunt. He is not as close with his father (Mr Adan Shaqlane) as with his aunt. She will help him and he doesn’t want to make her depressed. When asked by the Tribunal if he told his aunt of his proven offending, the applicant advised that she has received the details by email from the representative. He stated to the Tribunal that he ‘didn’t want to tell her because she didn’t raise him like that.’ The applicant regrets his past conduct and has faced the consequences. He wants to study as his aunt said and he wants a better life. The applicant stated that his religion is powerful and he knows he is on the right path. The Tribunal raised with the applicant that by not advising her of his convictions that might tend to suggest he was not as close to her as he has indicated, inviting his comment. The applicant advised that he is really close to her and she is helping him the most. The representative advised that he had told the aunt of the offences but the applicant didn’t have a chance to do so. The applicant added that his aunt was busy, the email from the representative would have advised her and he stated that it was embarrassing and he didn’t want to embarrass her. The applicant confirmed he had no more oral evidence to provide prior to the conclusion of the review hearing.

24. The representative was permitted to make oral submissions. They may be summarised as follows. He advised the aunt of the convictions, she is funding the appeal and she wants to help with his studies. According to the representative, the bilateral treaty between Australia and New Zealand results in the applicant not being able to access financial support in Australia for health and study purposes. When asked by the Tribunal if the applicant could avail himself of such services in his country of nationality New Zealand, the representative indicated he had no information regarding this.

25. The representative advised that the applicant received injected medication for his mental health on remand but not in immigration detention. He outlined that the applicant was placed on an involuntary order for his mental health in Melbourne in late 2017 and was an inpatient there. He was transferred to Brisbane shortly after. It is contended that when the applicant stopped his medication everything happened including his homelessness and offending.

26. The representative maintained that the ground for visa cancellation is not enlivened as the proven criminal conduct is at the medium to low range of offending as reflected in the sentencing. In the alternative, it is contended that discretionary grounds should not result in visa cancellation. The applicant’s mental health requires the support of his family. His father (Mr Adan Shaqlane) is trying to understand the mental health issues. The applicant is on Probation and will receive a conviction and possible imprisonment if he breaches the conditions. It is submitted the risk of reoffending is low given the supervision of the Probation Order. The representative advised that the CROC needs to be considered and also that the applicant only recently met his youngest sibling. The representative also noted that the applicant has a girlfriend, although the relationship is in its early stages. In summary, it is contended that the discretionary factors weigh against cancellation of the applicant’s Subclass 444 visa. For completeness, the Tribunal notes that it discussed with the representative his submission of Ministerial Direction 79, which relates to visa cancellations pursuant to s.501 of the Act, and it was agreed that under that legislative regime a mandatory cancellation would not arise, however this review concerns s.116(1)(e)(i) of the Act.

27. As previously outlined, following the review hearing submissions were made contending that the applicant is very remorseful for his proven offending, which was influenced by him not being medicated at that time. The Tribunal has duly considered all submissions and material submitted on behalf of the applicant. For the sake of completeness, the Tribunal notes that it has paid due regard to the sentences imposed by the Court regarding the applicant’s proven offending.

    The ground for cancellation exists

1. The Tribunal has very carefully considered whether the ground for visa cancellation in s.116(1)(e)(i) of the Act exists. The Tribunal accepts that the very serious charges against the applicant relating to armed robbery and committing grievous bodily harm were discontinued. The Tribunal notes that these charges were specifically referred to in the NOICC and the visa cancellation decision of the delegate. Given the aforementioned charges were discontinued the Tribunal places no weight in an adverse fashion upon them. That they were discontinued weighs against the ground of visa cancellation being enlivened. Additionally, the Tribunal is conscious of the fact that the applicant spent several months in remand on the basis of the discontinued charges and he is now immigration detention.

2. The Tribunal notes that both the NOICC dated 4 March 2019 and the visa cancellation decision of 15 April 2019 refer to the applicant being ‘charged with, amongst other things’ the discontinued charges. With the effluxion of time, the applicant has now been found guilty of the offences reflected in his proven criminal history. He pleaded guilty to those offences on the basis of the facts contained in the relevant Court Briefs. Accordingly, the Tribunal must determine at the time of its decision, on the evidence before it, whether the ground for the visa cancellation is enlivened.

3. The contentions advanced on behalf of the applicant with respect to the ground of visa cancellation not being enlivened may be summarised as follows. The delegate was premature in cancelling the visa on the basis of the charges that were subsequently discontinued and without them the ground for visa cancellation is not enlivened. Additionally, it is contended that the applicant’s proven criminal conduct is not of sufficient gravity to enliven the ground of visa cancellation, as reflected in the sentencing of the Court. Further, the contention is made that the applicant has reconciled with his family, in particular his father (Mr Adan Shaqlane), and under the protective blanket of a secure residence, family support, employment, regular medication and the Probation Order he presents a low risk of reoffending and therefore poses no risk to the Australian community. The Tribunal has very carefully considered these contentions and affords some weight to the documentary and oral evidence submitted in support of them (including, but not limited to, the evidence of all witnesses and Court documents).

4. In the view of the Tribunal, the applicant’s proven criminal history is a matter of concern when viewed globally. He has eleven criminal convictions. The most serious of them relate to the damage he caused at the 7 Eleven store when he smashed through glass doors to make his escape after shoplifting and his possession of a machete in the busy entertainment precinct of Fortitude Valley. Whilst the Tribunal accepts the applicant’s offending occurred at a time when he was not taking his medication for [Medical Condition 1] and estranged from his father (Mr Adan Shaqlane), it considers such offending to have placed members of the public at some risk. The Tribunal has considered the applicant’s oral accounts of his conduct in relation to these two aforementioned convictions, paying careful regard to his mental health in doing so, but prefers the stated facts contained in the Court Briefs given they were the facts to which the applicant plead guilty with legal representation. Accordingly, the Tribunal is of the view that the aforementioned facts demonstrate the applicant’s conduct at the 7 Eleven store was aggressive, destructive and resulted in $10,574 of damage. These matters tend to suggest that the ground for visa cancellation is enlivened.

5. The applicant’s conduct in carrying a machete in a popular entertainment precinct carried risk to others given the nature of the weapon and the busy location in which it was carried in a concealed fashion. Preferring the outline of facts from the Court Brief to the applicant’s oral evidence, the Tribunal does not accept that he was carrying the machete for a friend with an altruistic purpose. Rather, it is satisfied that he was carrying the machete for the purpose of protection. Additionally, the Tribunal is satisfied that the applicant did not voluntarily admit to Police that he held the machete and that he became belligerent towards them in the execution of their duties. This further increased the risk to the general public in the view of the Tribunal. The aforementioned matters tend to suggest that the ground for visa cancellation is enlivened.

6. The Tribunal accepts that the applicant’s offending was influenced by his lack of treatment for [Medical Condition 1] and his estrangement from his father (Mr Adan Shaqlane). The Tribunal also notes that the applicant confirmed he stopped taking his medication because it gave him side effects and he argued with his nurse who attempted to administer the medication. Such matters rendered him homeless. At that time, on his own evidence, the applicant was also associating with ‘bad friends’, taking drugs and drinking. In the view of the Tribunal, the applicant’s untreated mental health condition, combined with his drug and alcohol misuse, heightened his risk to the safety of the Australian community at the time of his offending. The aforementioned matters tend to suggest that the ground for visa cancellation is enlivened.  

7. The medical evidence before the Tribunal indicates that the applicant has a history of mental health concerns, primarily regarding his [Medical Condition 1]. [Details regarding Medical Condition 1 deleted]. He has in the past been prescribed [medication], including whilst on remand.

8. The report of [a named clinical nurse] indicates the applicant, “may benefit from the support offered by his family” regarding the effects of his illness. In addition, the report outlines that the applicant is not in receipt of any Government financial assistance and notes that Mr Adan Shaqlane, “is being placed under considerable financial strain in providing care for Abdwali, whilst also supporting his own wife and children. Such continued stress will affect Adan’s ability to continue to provide support and care for Abdiwali. I urge you to consider these circumstances when assessing any application of support for Abdiwali.”

9. The most contemporary medical report before the Tribunal is that of [a named specialist]. [Details of the report deleted].  

10. The Tribunal has carefully considered all of the medical evidence before it. There is no medical report that directly addresses the applicant’s risk of reoffending if he returns to the Australian community. When considered globally, the medical evidence suggests that the applicant’s mental health has fluctuated over time and in situations where he is not suitably monitored by health professionals, is placed in situations of stress or comes into contact with drugs and alcohol, [his medical condition is exacerbated]. Additionally, the Tribunal notes that the applicant has been either on remand or in immigration detention for approximately eight months since his offending and, notwithstanding the reasons for this situation, he accordingly has not been able to demonstrate a period in the community where he has presented a low risk since that time. On balance, the Tribunal is not satisfied there is persuasive medical evidence from a health professional to indicate that the applicant presents a low risk of reoffending if he is returned to the Australian community. This tends to weigh in favour of the ground of visa cancellation being enlivened.

11. It is apparent from the applicant’s own oral evidence that he has previously had a strained relationship with his father (Mr Adan Shaqlane) and is much closer to his aunt (Ms Adoonti) who resides in Melbourne. It is apparent from the report of [the clinical nurse] that Mr Adan Shaqlane was placed under considerable financial strain at that time in providing care for the applicant. The Tribunal notes that it is proposed the applicant return to Mr Adan Shaqlane’s residence in Brisbane and not to Melbourne. The Tribunal accepts that the applicant’s aunt has offered him employment in her company when she opens an office in Brisbane as planned towards the end of this year. The Tribunal also accepts that the applicant is under the supervision of a Probation Order. Following careful consideration, the Tribunal finds that the aforementioned residential option (despite the potential strain it will place upon Mr Adan Shaqlane), family support, offer of employment and the supervisory aspects of the Probation Order weigh against the ground of visa cancellation being enlivened.

12. On balance, following careful consideration, the Tribunal affords more weight to the evidence outlined above which suggests the ground for visa cancellation is enlivened, than it gives to evidence to the contrary. In particular, the Tribunal is most concerned with the applicant’s proven criminal conduct regarding the damage he caused at the 7 Eleven store and his concealed carriage of a machete in a busy public entertainment precinct. It follows that the Tribunal does not accept the applicant’s contention that the discontinuance of the very serious charges, and the gravity of the applicant’s proven criminal conduct, point to the ground of visa cancellation not being enlivened.

13. Accordingly, the Tribunal finds that the applicant’s presence in Australia might be a risk to the safety of the Australian community. The Tribunal is therefore satisfied that the ground for cancellation in s.116(1)(e)(i) 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

14. 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’.

15. The Tribunal has also very carefully considered the attribution of weight to the evidence before it in assessing whether the applicant’s visa should be cancelled. In doing so, the Tribunal is mindful of the observations of Collier J in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [39]:

    There is ample authority at high level in this country that it is for a decision-maker to attribute such weight to relevant information as it sees fit: see for example Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24]; Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [197]; the plurality in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33].

16. The applicant’s background has been detailed above. He has resided in Australia since 2011 from the age of 14 years and arrived with his extended family from New Zealand. The applicant currently has his father (Mr Adan Shaqlane), step-mother, five siblings, aunt (Ms Ifrah Adoontii), step-grandfather, and other extended family members (including aunts, uncles, cousins and family members of his step-grandfather) resident in Australia.  

17. The Tribunal accepts the oral and documentary evidence that some emotional and financial hardship will be faced by these family members in Australia, and the applicant, should the visa be cancelled. Further, the Tribunal accepts that the applicant wants to help his grandparents in Africa (and any other relatives in that location) and that some emotional and financial hardship will be faced by these family members and the applicant if his visa is cancelled. The Tribunal affords some weight to the respective evidence concerning these matters and finds that the aforementioned family considerations weigh against cancellation of the visa. For completeness, the Tribunal notes that no professional medical or psychological evidence was before it to suggest that any family member of the applicant will suffer psychological hardship if the visa is cancelled.

18. The applicant’s five siblings are aged approximately 2 months, 5, 6, 9 and 10 years of age. Their father is Mr Adan Shaqlane and their mother is the applicant’s step-mother. The Tribunal accepts that the evidence of Mr Adan Shaqlane and Ms Ifrah Adoontii points to the best interests of these children favouring the applicant’s visa not being cancelled. The Tribunal accepts the evidence of the applicant indicating he has previously resided with these children (noting he has only recently met the 2 month old child), wants to play a meaningful role in their lives and they will face hardship if his visa is cancelled. The Tribunal accepts that these siblings will face emotional and financial hardship, as will the applicant, if the Subclass 444 visa is cancelled. Further, the Tribunal accepts that the applicant and his minor cousins will face emotional hardship if the Subclass 444 visa is cancelled. The Tribunal affords some weight to the aforementioned matters and finds they weigh against the cancellation of the applicant’s visa.

19. The Tribunal has carefully considered the application to this matter of the United Nations Convention on the Rights of the Child (CROC) and, as is relevant to the family unit, the International Covenant on Civil and Political Rights (ICCPR). The Tribunal acknowledges that ‘the best interests of the child’ must be treated as a primary consideration by administrative decision makers. Accordingly, the Tribunal has done so in this matter and elevates the weight afforded to the evidence, detailed above, which is suggestive of hardship being faced by the applicant, his siblings and cousins (and other family members with respect to their right to be a family unit), and which weighs against cancellation of the visa. The Tribunal notes that this primary consideration may be balanced against other considerations, a matter to which it shall later return.

20. The Tribunal accepts the evidence of Mr Adan Shaqlane that he, his family and the applicant will face hardship if the Subclass 444 visa is cancelled. The Tribunal notes that he offered to move his whole family to New Zealand if the applicant’s visa is cancelled and this would cause significant disruption to them. The Tribunal accepts his evidence that the applicant is ill and that his issues arose once he stopped taking his medication in the circumstances outlined. The Tribunal accepts his evidence that the applicant’s aunt (Ms Ifrah Adoontii) will offer him employment. For completeness, the Tribunal notes that Mr Adan Shaqlane did not outline any plans for him to secure employment for the applicant, as was raised in documentary material, however the Tribunal accepts he would do so if able. The Tribunal accepts that Mr Adan Shaqlane, his family and the applicant will face emotional and financial hardship if the applicant’s visa is cancelled. In the view of the Tribunal, the aforementioned hardship weighs against cancellation of the applicant’s visa.

21. The Tribunal accepts the evidence of Ms Ifrah Adoonti regarding the applicant facing hardship if his visa is cancelled. The Tribunal accepts that she has offered the applicant employment and will assist him to study. The Tribunal accepts that, as she outlined, the applicant suffers from [medical] conditions. Whilst the Tribunal does not accept that the applicant himself told Ms Adoonti of his proven criminal conduct, it accepts that she was sent this information by the representative and it was discussed with her during the review hearing. The Tribunal accepts that she still supports the applicant after learning of his convictions. The Tribunal accepts that Ms Adoonti will face financial loss on account of her funding the applicant’s review application if his visa is cancelled. The aforementioned matters weigh against cancellation of the applicant’s visa.

22. The Tribunal accepts that the applicant has commenced a long distance relationship with his girlfriend in Sydney of a few months duration. The Tribunal accepts there will be some emotional hardship for both her and the applicant if his visa is cancelled. This weighs against cancellation of the Subclass 444 visa. The Tribunal accepts that the applicant has other family members resident in Australia, such as aunts, uncles, cousins and relatives of his step-grandfather and that they will face emotional hardship, as will the applicant, if his visa is cancelled. The aforementioned matters weigh against cancellation of the applicant’s visa.

23. The Tribunal accepts there is no evidence before it of adverse past or present behaviour by the applicant towards the Department of Home Affairs, nor of non-compliance with visa conditions. The aforementioned matters weigh against cancellation of the visa.

24. The Tribunal accepts that no other person is attached to the applicant’s visa who would receive a consequential visa cancellation if his own visa were cancelled. There is no evidence before the Tribunal indicating that Australia’s non-refoulement obligations would be breached as a result of the visa cancellation, as was noted by the representative. The aforementioned matters weigh neither in favour of, nor against, cancellation of the visa.

25. The Tribunal does not accept that there are extenuating circumstances beyond the applicant’s control that led to the grounds for visa cancellation existing. Whilst the Tribunal accepts that the serious charges against the applicant for armed robbery and committing grievous bodily harm were discontinued (and their discontinuance weighs against cancellation of the visa), he still faced other charges at the time of the NOICC and visa cancellation. In due course he pleaded guilty to these other charges as reflected in his proven criminal history. Whilst accepting that mitigating circumstances (such as his mental health, dispute with Mr Adan Shaqlane and homelessness) have been presented for the applicant’s proven criminal conduct, on balance, the Tribunal does not accept that his criminal convictions arose in circumstances beyond his control. It follows that the Tribunal does not accept that there are circumstances beyond the applicant’s control that led to the grounds for visa cancellation existing. As there are no such circumstances, this consideration weighs neither in favour of, nor against, cancellation of the Subclass 444 visa.

26. The Tribunal accepts that if the applicant’s visa is cancelled he would be an unlawful non-citizen, remain in immigration detention, be able to make only limited further visa applications in Australia, be liable to removal from Australia and likely face difficulties in obtaining a new Australian visa in the future. The Tribunal finds that such matters are likely to result in emotional, psychological and financial hardship for the applicant. Accordingly, the Tribunal places some weight upon the evidence pertaining to these matters and finds they weigh against cancellation of the visa.

27. As outlined previously, the applicant has resided in Australia since 2011 when he arrived aged 14 years. His purpose of stay in Australia is to maintain such residence and the Tribunal accepts he has a compelling need to remain in Australia to be with his family members. The Tribunal places some weight upon the evidence regarding these issues and finds they weigh against cancellation of the visa. The Tribunal has already described its attribution of weight in relation to family and relationship matters, which intersect with the consideration of the applicant’s submitted need to remain in Australia. The Tribunal accepts that the applicant will face emotional, psychological and financial hardship if his visa is cancelled on account of the disruption to his familial, relationship, social and professional treatment networks. The Tribunal also accepts that he has no relatives remaining in New Zealand. Some weight is afforded to the evidence in relation to the aforementioned matters and the Tribunal finds they weigh against cancellation of the visa.

1. The Tribunal accepts that the applicant has undertaken some courses with regard to [rehabilitation]. Some weight is afforded to the evidence in relation to the aforementioned matters and the Tribunal finds they weigh against cancellation of the visa. The Tribunal accepts that the applicant plans to study in Australia utilising funding provided by Ms Adoonti and that if his visa is cancelled this plan will not come to fruition. The Tribunal accepts that the applicant would like to help Muslim youth in the Australian community and re-join sporting teams here and that these plans will not come to pass if his visa is cancelled. Some weight is afforded to the evidence in relation to the aforementioned matters and the Tribunal finds they weigh against cancellation of the visa.    

2. The Tribunal accepts that the applicant has formed strong family and social ties within Australia. These matters have been previously outlined and weigh against cancellation of the applicant’s visa. For completeness, the Tribunal notes that the Subclass 444 visa is a temporary visa according to the prevailing legislation. The Tribunal accepts the applicant has previously been employed in Australia performing casual work. Some weight is afforded to the evidence in relation to the aforementioned matter and the Tribunal finds it weighs against cancellation of the visa.  

3. The Tribunal accepts that the applicant suffers from [Medical Condition 1], [Medical Condition 2] (which resulted in surgery many years before), and has a history of [Medical Condition 3] (from which, according to the submitted reception medical report from the immigration detention centre indicates, he is ‘not unwell currently’). There is no evidence before the Tribunal to suggest the applicant requires further treatment with respect to his hearing or that any further treatment for [Medical Condition 3] beyond monitoring is required. However, the Tribunal accepts that the presence of these health conditions weighs against cancellation of the visa.

4. The Tribunal has previously referred to the medical reports regarding the applicant’s mental health and accepts he suffers from the conditions described. The Tribunal also accepts that the medical evidence suggests the applicant would benefit from the support of his family with respect to the management of these conditions. On balance, the Tribunal affords some weight to the evidence in relation to the applicant’s medical conditions (both physical and mental) and finds they weigh against cancellation of the visa.

5. The Tribunal has carefully considered the matter of the applicant’s basic living standards if his visa is cancelled and he returns to New Zealand. The Tribunal notes that the applicant became homeless in Australia when he fell into dispute with his father (Mr Adan Shaqlane) around the time he argued with a nurse and refused to take medication for his mental health due to its side effects. The Tribunal considers that there remains a real risk of the applicant having his basic living standards (including accommodation, finances and subsistence) threatened even if he remains in Australia where family support is available, given the history of his strained relationship with Mr Adan Shaqlane and his past refusal to take medication. The Tribunal notes that the submitted evidence suggests the applicant is not entitled to some Australian Government support services (for example, financial support as outlined in the PAH report dated 4 January 2018, and for health and study assistance as cited by the representative) given he has not resided in this country for the requisite period (cited as 10 years by the representative). This heightens the risk of the applicant having his basic living standards threatened in Australia in the medium term, given he is not yet eligible for the full range of Australian Government benefits and services as are available to Australian nationals in this country.  

6. The Tribunal is satisfied that the applicant is entitled to any New Zealand Government service and benefit available to New Zealand nationals if he returns to his country of nationality. The Tribunal also notes the applicant accepted that he could obtain medication in New Zealand if required. However, the Tribunal accepts that the applicant’s medical management is in an improved position if he remains in location with family support in Australia. On balance, the Tribunal accepts there is a risk that if the applicant does not avail himself of New Zealand Government services if he returns to his country of nationality, then his basic living standards (including accommodation, finances and subsistence) may be threatened. Further, the Tribunal accepts that if the applicant returns to New Zealand with no family support, there is a higher risk that his basic living standards will be threatened than if he remains in Australia near family, where there is also a risk of this situation occurring. Following careful consideration, the Tribunal finds that the consideration of the applicant’s basic living standards weighs against cancelling his Subclass 444 visa.

7. The Tribunal is concerned that the applicant appeared to downplay the severity of his proven criminal conduct at times during his oral evidence as previously outlined. This tends to weigh in favour of the visa cancellation. For completeness, the Tribunal has carefully considered the medical reports which indicate the applicant’s mental health condition can impact upon cognitive ability, memory and concentration. However, the applicant and the representative confirmed to the Tribunal that the applicant was able to proceed with the review hearing and the Tribunal had the benefit of observing him provide his oral evidence in person. Following careful consideration, the Tribunal is satisfied that the applicant was lucid and fully understood the proceedings, notwithstanding that some questions were repeated to him on account of his hearing impediment.

8. The Tribunal has also carefully considered all relevant circumstances pertaining to the applicant’s case and does not consider there is any other circumstance weighing either in favour of, or against, cancellation of his visa.

   CONCLUSION

9. The Tribunal must balance the factors both against, and in favour of, the cancellation of the applicant’s visa. The Tribunal has carefully reflected upon the aforementioned factors and it has considered the applicant’s claims individually and cumulatively. Multiple factors have been found by the Tribunal to weigh against the cancellation of this visa, as outlined above. The hardship faced by the applicant and his family members if the visa is cancelled, including their rights to remain as a family unit, weighs significantly against such cancellation. Similarly, ‘the best interests of the child’, which is a primary consideration, weighs significantly against cancelling the visa on account of the applicant’s siblings and cousins.

10. However, the following combination of factors presents considerable concern for the Tribunal and weighs strongly in favour of cancelling the applicant’s Subclass 444 visa. The applicant’s proven criminal conduct, which includes the damage caused to the 7 Eleven store and his concealed carriage of a machete in a busy entertainment precinct, is serious in the view of the Tribunal. His proven criminal conduct displays a disregard for the laws of Australia. Whilst the Tribunal has paid due regard to the submission advanced on behalf of the applicant that the Court imposed non-custodial punishments which suggest the offending is at the lower range of gravity, a supervisory Probation Order was imposed and he has expressed remorse, it is not satisfied that the applicant is no longer a risk to the Australian community as a result. Rather, the Tribunal is satisfied the applicant presents a real risk of reoffending and he might be a threat to the safety of the Australian community if he remains in this country. That is because the applicant has [Medical Condition 1] and is placed in situations of stress or comes into contact with drugs and alcohol, even with family support available, and he has committed criminal offences in these circumstances.

11. The Tribunal has given the present review application the utmost attention given the ramifications for the applicant and his family members if the Subclass 444 visa is cancelled. On balance, following much consideration, the Tribunal finds that the factors in favour of cancelling the applicant’s visa outweigh those factors to the contrary.

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.

    K. Chapman
    Member