Speirs (Migration)

[2018] AATA 1399

Speirs (Migration) [2018] AATA 1399 (11 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shae Craig Thomas Speirs

CASE NUMBER:  1801561

DIBP REFERENCE(S):  BCC2017/3704259

MEMBER:Kira Raif

DATE:11 April 2018

PLACE OF DECISION:  Sydney

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

Statement made on 11 April 2018 at 10:38am

CATCHWORDS
Migration – Cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – Criminal offences – Nature of the conduct – Multiplicity of charges – No remorse of conduct – Domestic violence order – Strong links to Australia – Employment opportunities – Child’s best interest

LEGISLATION
Migration Act 1958, s 116

CASES
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 10 January 2018 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 444 (Special Category) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of New Zealand born in September 1989. He was granted the visa and last entered Australia on 2 December 2000. On 6 December 2017 the delegate issued the applicant with the Notice of Intention to Consider Cancellation (NOICC) under s.116(1)(e) of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 10 January 2018. The applicant seeks review of the delegate’s decision.

3. The Tribunal informed the applicant about the existence of the s.375A Certificate.

4. The applicant appeared before the Tribunal on 9 April 2018 to give evidence and present arguments. The applicant requested the Tribunal postpone the hearing to enable him to obtain legal representation. The Tribunal has considered the request but decided not to postpone the hearing as the applicant has not provided any evidence of having taken any steps to obtain legal representation or of being able to do so within a reasonable period. The applicant nominated his father and partner as witnesses but they were not available during the hearing. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

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

6. A visa may be cancelled under s.116(1)(e) if the Minister or the Tribunal 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.

7. 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 with the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law, or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

   Does the ground for cancellation exist?

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted the Class TY (Special Category) visa in December 2000. In October 2017 the Department received information indicating the applicant had been charged with the following offences:

   a.assault occasioning bodily harm (on 14/9/17)

   b.choking, suffocation, strangulation: domestic relationship (on 14/9/17)

   c.common assault (on 15/9/17).

9. The Department also received information that the applicant had been charged with other offences. The applicant confirmed in oral evidence that he was found guilty with no conviction recorded:

   a.assault or obstruct police officer (on 7/9/12) – no conviction recorded, fined $350

   b.assault or obstruct police officer (on 30/10/08) – no conviction recorded, recognisance $350 good behaviour period three months

   c.fraud – dishonest application of property of another (on 10/3/08), no conviction recorded, fined $600

   d.receiving stolen property or property fraudulently obtained – four charges (on 9/3/08, 16/3/08 and 17/3/08) – restitution $1,490

   e.fraud – dishonestly obtains property from another – three charges (on 16/3/08 and 17/3/08).

10. The primary decision record indicates that the applicant’s actions on 14 September 2017 have allegedly caused harm to the victim and he assaulted the victim again on 15 September 2017.

11. In his written response to the NOICC the applicant claims to have a good relationship with his partner and daughter and notes that the charges were placed by the police and not his partner and that his partner did not want the Domestic Violence Order (DVO) charges to be brought against him. The applicant argues that he is not a threat to his partner and daughter.

12. The Tribunal considers the applicant’s submission problematic. It may well be that the charges were brought by the police and not initiated by his partner. It is also possible that his partner may wish to continue to live with the applicant. That does not detract from the fact that domestic violence may have occurred, which resulted in the DVO being issued and charges being laid. The mere fact that the applicant’s partner did not wish for the charges to be brought does not negate the existence of violence, if it did occur.

13. The applicant told the Tribunal in oral evidence that he has not been in any trouble since 2012 and this was the first time. He said he had an argument with his girlfriend and even though his girlfriend was assaulting him, he was the one charged. The Tribunal finds that evidence unconvincing since it was the applicant and not his partner who had been charged with offences (acknowledging there is no finding of guilt in relation to these). The applicant told the Tribunal that he has been issued with the DVO which initially did not allow him to contact his partner but it has been changed so that he can have contact with his girlfriend and daughter.

14. The applicant told the Tribunal that he had applied for bail when he was first charged but it was refused. He has not applied since. The applicant said that he believed he was not granted bail because of the 2012 incidents. The applicant confirmed that he was found guilty but no convictions were recorded. The applicant said that at that time, he tried to break up a fight but he was charged with assault. The applicant said, in relation to the receiving stolen property and fraud charges, that his friend gave him some items which he took to the pawn shop. He believed these belonged to the friend and he thought he was helping his friend.

15. The applicant provided to the Tribunal a number of character references and employment references. The Tribunal is prepared to accept that those who provided references believe the applicant to be a good person.

16. The Tribunal finds that the applicant has been charged with a number of very serious offences which involve violence towards another person. The fact that the DVO was issued for a period of five years indicates that an assessment has been made that there is a need for a formal order to protect another person. The charges and the earlier convictions suggest that the criminal and antisocial conduct may have occurred over a period of time. The recent charges are very serious in nature. The applicant appears to have no remorse for his conduct. His evidence to the Tribunal is that in the most recent incident, his girlfriend assaulted him; in the earlier incident he was breaking up a fight or helping a friend.

17. In the Tribunal’s view, the nature of the conduct, the multiplicity of charges and the seriousness of these indicate the applicant’s disregard for the law and the welfare and well-being of others. The Tribunal finds that the applicant’s presence in Australia is or may be a risk to the safety or good order of the Australian community or the health or safety of an individual or individuals (the applicant’s partner).

18. 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 power to cancel the visa should be exercised.

    Consideration of discretion

19. There are no matters specified in the Act or Migration Regulations 1994 that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual, PAM3 ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

20. The applicant has been living in Australia since 2000 when he entered the country with his parents and siblings. The applicant’s parents and two siblings live in Australia. He also has a partner and a young child in Australia, as well as other relatives and friends. The applicant told the Tribunal hat he has not been to New Zealand for a long time and has nothing to go back to. The Tribunal accepts that the presence of family and friends, as well as employment in Australia, may give rise to a compelling need for the applicant to remain in Australia.

    The extent of compliance with visa conditions

21. Nothing adverse is known to the Tribunal about the applicant’s compliance with visa conditions.

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

22. In his written response to the NOICC the applicant refers to the presence of his partner, child, friends and family in Australia. He states that if he is deported, it would affect his partner and daughter, his family and close friends and he will lose his job. The applicant presented written evidence concerning his employment. The Tribunal accepts that the applicant has been living in Australia for a significant period of time and is settled in Australia. The Tribunal accepts that the applicant has not returned to New Zealand since his family migrated to Australia and his evidence is that he has nothing to go back to. The Tribunal accepts that the applicant has strong links to Australia and that such links may be greater than his links in New Zealand.

23. The applicant claims that he suffers from depression, anxiety and PTSD. He has not presented any medical evidence to support this claim but the Tribunal is prepared to accept that the applicant has been diagnosed with a number of conditions and his evidence to the Tribunal is that he takes medication but no other treatment. The applicant told the Tribunal that he believes it would be better for him to continue with the treatment in Australia, however there is nothing to suggest that the applicant would be unable to obtain adequate and appropriate medical care in New Zealand. The Tribunal is satisfied the applicant will have access to adequate health care in New Zealand.

24. The applicant claims that before his imprisonment, he was working as an apprentice mechanic and he is concerned that if he is deported, he would not find a job. The applicant told the Tribunal that he needs to provide for his partner and daughter. However, he also told the Tribunal that he has not explored job opportunities in New Zealand. The Tribunal is not satisfied the applicant would be unable to find employment in New Zealand. In the Tribunal’s view, the applicant’s skills as a mechanic are quite transferrable and there is no reason the applicant should be unable to find employment in New Zealand. The applicant also stated that he would not have a car or a licence in New Zealand but there is no reason he could not obtain these. The Tribunal is of the view that the applicant will be able to find employment in New Zealand if he were required to leave Australia and that he will be able to continue to provide financial support to his partner and child, if he wishes to do so.

25. The applicant claims in his written submissions that he planned to apply for Australian citizenship. He states he helps his partner with housework and to look after their child and with paying the bills. They have a good relationship and support each other. He claims his partner has struggled since his imprisonment and it would be hard if he is deported and she has also been diagnosed with depression and needs his help. The Tribunal acknowledges that evidence but is mindful that, according to the applicant’s own evidence, the present DVO does not permit the applicant to live with his partner and the DVO is in place for five years. Although the applicant claims they plan to vary the orders, there is no evidence before the Tribunal that any steps have been taken to do so.

26. The applicant told the Tribunal that he has ongoing employment and that the job is still open despite his detention. The Tribunal accepts that if the visa is cancelled, the applicant would have to give up his employment.

27. The applicant refers in his written evidence to his love for his partner and daughter and states it would be hard not to be with them. He notes that his daughter will lose her dad if he is deported. The applicant’s oral evidence to the Tribunal is that the present DVO allows him to contact his partner and child but not to live with them. In the Tribunal’s view, the contact can continue whether the applicant lives in Australia or elsewhere. The Tribunal acknowledges the applicant’s evidence that if he is removed from Australia, his partner and child may not be able to visit him often, although they should be able to maintain electronic communication.

28. The Tribunal accepts that a considerable degree of hardship may be caused to the applicant and others by the cancellation of his visa.

    Circumstances in which the ground for cancellation arose

29. Circumstances in which the ground for cancellation arose are because the Tribunal has formed the view that the applicant’s presence in Australia is or may be a risk to the safety or good order of the Australian community or the health or safety of an individual or individuals. The applicant has been convicted of some offences and charged with others.

30. In his written submission to the delegate the applicant notes that it has been five years since he has been in trouble with the police. The applicant claims he was told he would serve six months in jail and this would be the first and the last time he would be in jail. The applicant told the Tribunal that he is not a violent person and has never been violent. He never had a DVO or anything of that nature placed on him. The Tribunal is mindful, however, that the applicant had been convicted of two counts of assault or obstructing a police officer in 2008 and 2012. The applicant claims it was obstruction and he did not assault the police and the incidents did not involve any violence. The Tribunal places weight on the fact that the offences are multiple and spanning over a period of time.

    Past and present behaviour of the visa holder towards the Department

31. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

    Whether there would be consequential cancellations under s.140

32. There are no persons in Australia who would be affected by the consequential cancellations.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

33. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be an unlawful non-citizen and subject to detention and possible removal from Australia and he may be subject to an exclusion period. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention.

34. The applicant told the Tribunal that he would like to apply for another visa to be with his family. The Tribunal is mindful that he may be able to apply for some visas in Australia and he would not be precluded from applying for visas from overseas, even though an exclusion period may apply in relation to some. 

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

35. There is no evidence, and the applicant does not claim, that he would be subjected to any form of harm if he is required to leave the country.  The Tribunal does not consider that Australia’s non-refoulement obligations would be breached as a result of the cancellation.

36. The applicant has an Australian citizen child who is about one year old. The applicant told the Tribunal that it is in the best interests of the child to be raised by two parents and he wants to be able to stay in Australia and help his partner and child.

37. The Tribunal acknowledges that in many circumstances it would be in the best interests of a child to be raised by both parents. However, the Tribunal is not satisfied it is so in the present case.

38. The applicant has been charged with assault occasioning bodily harm, choking/suffocation/strangulation in a domestic relationship and common assault in relation to the mother of his child. The applicant’s evidence to the Tribunal is that there was an ‘argument’ with his partner, although he denies that he has assaulted his partner; the applicant refers to being assaulted by her. The applicant told the Tribunal that the child was present in the house when the argument occurred. The Tribunal is not satisfied it is in the best interests of any child to witness violence of one parent in relation to the other.

39. The Tribunal is mindful that the applicant is unable to live with his partner and child due to the present DVO, although he is able to maintain contact, but the Tribunal is of the view that the applicant will be able to maintain contact with his daughter by electronic means whether or not he remains in Australia.

40. The applicant told the Tribunal that his child is an Australian citizen and that he wants his daughter to be raised in Australia as there is nothing in New Zealand for her. However, his evidence to the Tribunal is that his partner will not travel to New Zealand with him. The child can grow up in Australia whether or not the applicant remains in Australia. The applicant also states that he wants to provide for his child but the Tribunal is not convinced that the applicant can only do so if he remains in Australia.

41. In the circumstances of this case, the Tribunal does not consider that the child’s best interests require the applicant’s presence in Australia or that these would be adversely affected by the cancellation of the applicant’s visa.

1. The Tribunal has considered the applicant’s circumstances. The Tribunal has formed the view that there are grounds for cancelling the visa under s.116(1)(e) of the Act. The Tribunal has formed the view that the applicant’s presence in Australia is, or may be, or would or might be, a risk to the safety or good order of the Australian community.

2. There are reasons why the visa should not be cancelled. The applicant has been living in Australia for a very lengthy period of time since he was a child. His immediate family, including parents and siblings, partner and child, reside in Australia and the applicant has very few connections in New Zealand. The Tribunal accepts that he is settled in Australia and may find it difficult, at least initially, to re-establish his life in New Zealand. The cancellation of the visa would result in the applicant giving up his employment, his family links and being away from his family and what he is used to. While the Tribunal has formed the view that the applicant will be able to find employment and access health services in New Zealand, the Tribunal acknowledges that doing so will involve a degree of hardship.

3. The Tribunal also accepts the applicant’s evidence that the cancellation of the visa would result in the applicant being separated from his partner and daughter. The Tribunal is not necessarily convinced that it is in the best interests of the child to live with her father, given the nature of the allegations and the ongoing DVO.

4. Against these considerations, the Tribunal notes that the applicant had engaged in criminal and antisocial conduct for a number of years. The earlier incidents relate to the 2008–2012 period and the most recent charges relate to the alleged incident that took place in September 2017. The allegations are very serious and the applicant admits there was an argument with his partner. The applicant appears to lack remorse for his conduct and while he refers to making arrangements to see a psychologist, there is no evidence that the applicant has engaged in any rehabilitation programs to help him in the future.

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

   DECISION

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

   Kira Raif
   Senior Member