Sili (Migration)

[2019] AATA 4539

Sili (Migration) [2019] AATA 4539 (25 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Fakaloloma Ki Aotearoa Sili

CASE NUMBER:  1915643

HOME AFFAIRS REFERENCE(S):           BCC2019/1470870

MEMBER:James Lambie

DATE:25 July 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 25 July 2019 at 2:19pm

CATCHWORDS

MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – risk to the health and safety of an individual – minor criminal record – domestic violence charges withdrawn – partner’s own domestic violence orders – decision under review set aside 

LEGISLATION

Migration Act 1958, 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 31 May 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)(ii) on the basis that the applicant’s presence in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 24 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms JP, who is the wife of the applicant.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(e)(ii). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

7. A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

8. 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.

9. The applicant is a New Zealand national who arrived in Australia with his family in 2006, at the age of 13.  He is now 26 years old.  He has a criminal record dating back to 2013.  The offences of which he was convicted between 2013 and 2016 are relatively minor, involving drunken and disorderly behaviour or failures to attend, disposed with by way of small fines.  What had been a developing pattern of minor offending ceased in 2016 when the applicant became more involved in his church and met JP.   At this time, he stopped misusing substances and concentrated on working and starting a family.

10. The convictions and charges the subject of the delegate’s decision relate to domestic violence offences over the period 2017 to 2019 against JP.  At the time of the delegate’s decision, this included a very serious charge of choking, suffocation or strangulation (domestic violence offence).  However, at the time of the Tribunal hearing, this charge had been withdrawn.   As matters stand, the applicant still faces trial in the District Court on one charge of contravention of a domestic violence order.  The trial is expected to begin in October 2019.

11. The applicant and JP were married on 16 December 2017.  It is clear from the evidence that there has been a degree of emotional volatility in the relationship.  The first domestic violence order against the applicant dates from some six months prior to the marriage and arose from an incident at the Roma Street Transit Centre when the applicant and JP had a loud and public argument.  By the time police attended, Ms JP had already boarded her bus for Toowoomba.  The applicant consented to an order to be of good behaviour to Ms JP.  Two further incidents occurred shortly after the birth of their son in early 2018.  Arguments broke out over finances and the role of the applicant’s mother in the family.  The applicant was charged with strangulation and common assault, as well as contravention of the domestic violence order.  The strangulation charge having been withdrawn (as was the case with the charge preceding the cancellation), the applicant was convicted and fined $1200 in respect of each incident.

12. At the hearing, I heard evidence from JP.  She confirmed that she had made a statutory declaration that the strangulation allegations were false and that she had been motivated by a desire to keep her son from the applicant’s mother and to spite the applicant.  She said that she was deeply ashamed of having made false allegations.  She said that, in each of the incidents the subject of the charges, she had caused more physical harm to the applicant than he had to her and that the physical contact he had made with her was to restrain her while she was ‘freaking out’.  She said she is undergoing counselling in anger management and recognises that she had postnatal depression at the time.  She volunteered that she was the subject of domestic violence orders herself, and that she had served a term of probation for violating them.  She said that the applicant has never physically harmed her and that at no time has she ever feared that he would harm her.  Under the terms of the applicant’s bail conditions, they have not been in contact since he was taken into custody and they have not discussed any aspect of her evidence.  When asked, she emphatically denied that she had withdrawn any allegations at the applicant’s instance.  She said that both she and the applicant are devoted to their son and that at no time was he at risk of harm and that he never would be.  She is anxious to resume family life with the applicant.

13. The applicant’s representative, in her submissions, included correspondence between the applicant’s criminal lawyers and the Office of the Director of Public Prosecutions which included material that corroborated the relevant parts of JP’s evidence as outlined in paragraph 12 and indicated that, for those reasons, the strangulation matter would not proceed.

14. Having regard to the fact that the pending matter will come down to a strict liability determination as to whether the applicant was of good behaviour, the matter now before me appears considerably less grave in a criminal sense than it would have presented to the delegate.  The delegate also did not have the benefit of JP’s evidence or the fact of the cross-orders that had been made in the course of the relationship.

15. In these circumstances, and with no material to contradict the evidence I heard, I do not accept that the applicant’s presence in Australia poses a risk to an individual or individuals.

16. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(e)(ii) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

17. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

    James Lambie
    Senior Member