Te Moananui (Migration)

[2018] AATA 2614

Te Moananui (Migration) [2018] AATA 2614 (1 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aaron Te Moananui

CASE NUMBER:  1809770

HOME AFFAIRS REFERENCE(S):           BCC2018/247335

MEMBER:Ann Duffield

DATE:1 June 2018

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 01 June 2018 at 1:13pm

CATCHWORDS
Migration – Cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special category) – Risk to Australian community or individuals – Criminal charges – Applicant’s remorse – Steps to rehabilitation – Financial and psychological hardship – Strong incentives to be of good behaviour – Best interest of children – Forthcoming birth of child – Decision under review set aside

LEGISLATION
Migration Act 1958, s 116

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 20 March 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 444 (Special Category) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a citizen of New Zealand born on 21 August 1985 (32 years old). He first arrived in Australia in 1988 and has not departed since that time.

3. The delegate cancelled the applicant’s visa under s.116.(1)(e)(i) on the basis that the applicant’s extensive and serious record of offences indicates that his continued presence in Australia may or might be a risk to the safety 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.

4. The applicant appeared before the Tribunal on 1 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from his partner, [Ms A].

5. The applicant was represented in relation to the review by his registered migration agents who attended the hearing.

6. 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

7. 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)(i). 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?

8. 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].

9. 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.

10. The applicant’s history of offending, began in July 2008 when he was charged with [Criminal offence 1]. In 2010 he was charged with [Criminal offence 2]. In 2010 he was charged with [Criminal offence 3] and again with [Criminal offence 2] in the performance of the officer’s duties. These offences are at the lower end of the scale of seriousness.

11. In May 2017 the applicant was charged with possess utensils or pipes for use and possession of [other items] in a public place or a school. During the Tribunal hearing he said that he was sitting on the side of the road with his pushbike waiting for a friend. It was very early in the morning in Kingston and the police patrol drove past and stopped. It was on this occasion that he was found with the utensils. He also had [a tool] in his bag which the police confiscated. He told the Tribunal that it was a bad area to be around and he had the [tool] for self-defence. The Tribunal opined that defending himself with [the tool] seemed excessive. He claimed that it was very late at night and it was a bad area. He said that he had no intention of actually using it as a weapon, but more as a threat.

12. In June 2017 he was further charged with [another offence] and later that month was charged for failing to surrender into custody. The applicant offered no excuse for these matters only saying that he was on Ice and making a lot of very bad decisions.

13. These series of unfortunate decisions continued when in October 2017 he was charged with [another offence]. The applicant was incarcerated on remand from December 2017 until February 2018 when he was released on bail. After his release he moved back with his partner [Ms A] and their children. He remained there for around five weeks before he was subsequently detained by Border Force officials. His visa was cancelled on 20 March 2018. He claims he is innocent of these charges and intends to defend them vigorously.

14. The department sent the applicant a notice of intention to cancel his visa on the basis of the above charges to which he responded on 26 February 2018. The applicant claimed that the charges were not an indication of his character but that he became associated with people who caused him to deviate from his normal and respectful family life. He has since disassociated himself from those people and lives with his fiancé and two children. All his family reside in Australia and he has nothing in New Zealand to return to. He expressed deep remorse for his behaviour.

15. In his submission to the Tribunal the applicant claims that his family, including his fiancé (who is currently pregnant with their third child) and two children are entirely dependent upon him. He has no family to go to in New Zealand if he is deported as they have all been living here since he was three years old. Due to the applicant’s incarceration and now detention the family are experiencing significant hardship and strain. He has a job lined up should he be released and will be able to support them.

16. The applicant submits that if he remains in detention whilst his pending criminal charges progress through the court he would be detained for more than 18 months, thus causing himself and his family significant further financial hardship and distress. The applicant’s partner has not worked in over nine years, deciding instead to remain at home to look after the children and is wholly dependent upon the applicant.

17. The applicant claims that his more serious offending in 2017 occurred at a time when he and his partner separated and he became depressed and was associating with the wrong group of people. The applicant states that he has begun his rehabilitation process and is committed to its continuation if he is released from detention.

18. The applicant also provided the Tribunal with 14 letters and statements of support from friends and family attesting to his good character and the hardship that would be faced by the applicant’s family should he be required to depart Australia. He also submitted two decisions from differently constituted Tribunals relating to matters, he claims, are similar to his own where those Tribunals reversed the cancellation.

19. The applicant submits that he does not present a risk to the Australian community.

20. The applicant presented at hearing with his representatives and his partner, [Ms A]. He was heard via a video-link with Yonga Hill Detention Centre in WA whilst the others attended the Brisbane Registry in person to give evidence.

21. The applicant did not deny the charges, however he strongly asserts his innocence of those charges, claiming that he was not even in the vicinity of the events at the time. The Tribunal reminded him that he did not need to be convicted of offences in order for his visa to be cancelled. The applicant indicated that he was aware of that.

22. For these reasons, the Tribunal is 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 visa should be cancelled.

    s.116(1)(e) - risk to Australian community or individual

23. The parties evidence at the hearing was compelling, consistent and persuasive. The Tribunal is satisfied that the applicant will not be a risk to the Australian community or any individual within the community should his visa not be cancelled and he is released from detention for the following reasons.

    Consideration of discretion

24. 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’.

25. The applicant arrived in Australia as a three year old child with his family. He has never departed the country and has travelled out of Queensland on only one occasion to visit Western Australia. He has a long term partner of some [number of] years who is pregnant with their third child. She is an Australian citizen as are his children. He has no family in New Zealand.

26. Apart from a period of around twelve months when the applicant and [Ms A] lived apart from one another, they have been in an ongoing and apparently successful relationship. They are not married but the applicant told the Tribunal that he had asked [Ms A] to marry him and she had agreed. They just haven’t got around to it yet. The evidence before the Tribunal is that the applicant was a loving father and husband who provided for his family until around the middle of 2016 when he became involved with some people outside his usual circle and was introduced to drugs. The applicant told the Tribunal that his best friend had committed suicide at the beginning of the year and he had been negatively affected by that event. He said that it was no excuse but he nevertheless allowed himself to become more involved with drugs and bad influences.

27. The applicant told the Tribunal that towards the end of 2016 [Ms A] threw him out because his drug taking was affecting their relationship. She told the Tribunal that he began to stay away at night, usually “crashing’ at his mother’s or brother’s house. She said that he would do this if he was using drugs. She denied that there was any violence or that there was any other reason that she decided that she no longer wanted to live with the applicant. She said that he never brought drugs into the house or was affected by drugs in front of the children. She claimed that during the year that they were separated he continued to support the family and paid for half of everything. She told the Tribunal that he never went for more than two days without seeing herself or the children. She said that she wouldn’t take him back unless he stopped drug use.

28. After applicant was arrested he spent around three months incarcerated before being detained and spending a further two months in detention. Both the applicant and [Ms A] told the Tribunal that for the five weeks in between his incarceration and his detention, they lived together again as a family. She said that the man who came back to her was the man she married in that he was clean and acutely aware of the mess he had made of his life through drugs and bad decision making. Both told the Tribunal of their confidence that the applicant would not revert to his drug taking ways and that his time in jail had been a “wake up call”. The applicant said that being away from his family, missing their birthdays and Christmas and spending time with them was the worst punishment he could have. He said that alone would ensure that he would not revert to his previous behaviour. Asked if he would continue with his rehabilitation and counselling if released, [Ms A] told the tribunal that they were committed to counselling, together and separately.

29. The Tribunal accepts the oral and documentary evidence (including statements from family and friends) that the applicant’s partner and children, as well as other family members would suffer emotional and financial hardship if the applicant’s visa is cancelled. The Tribunal finds that this evidence weighs against the cancellation of the visa.

30. There is no indication before the Tribunal the seriousness of the crime the applicant is alleged to have committed or what sentence would be imposed if he were found guilty. The applicant himself claims that he does not know as he did not commit the crime of which he has been accused. The Tribunal does note however that it appears to be a [type of] crime and no person was assaulted or otherwise harmed. Be that as it may, it seems to the Tribunal that the applicant has some very strong incentives to be of good behaviour if he is released from detention and he will, of course, remain on strict bail conditions until his trial commences towards the end of 2019. Be that as it may, the Tribunal finds no extenuating circumstances beyond the applicant’s control that led to the grounds for visa cancellation existing. The Tribunal finds this evidence weighs in favour of cancelling the applicant’s visa.

31. The Tribunal accepts the evidence that the applicant has undertaken some steps towards rehabilitation and that he proposes to continue with the support of family and friends. The Tribunal notes the applicant’s genuine remorse for his behaviour and the very strong expressions of support from [Ms A] and other members of his family, as well as work colleagues and friends. The Tribunal gives this evidence positive weight in the applicant’s favour.

32. There is no evidence before the Tribunal that the applicant has been non –compliant with any visa conditions that may have been imposed. Equally, there is no evidence before the Tribunal that anyone else would receive a consequential visa cancellation if the applicant’s visa is cancelled.

33. The Tribunal notes that if the applicant’s visa is cancelled he would be an unlawful non-citizen and liable to remain in detention until the outcome of his court case and eventual removal from Australia. The Tribunal finds that these matters would result in emotional and financial hardship for the applicant, his partner and his children and that they weigh against the cancellation of the visa.

34. The Tribunal has carefully considered the application to this matter of the United Nations Convention on the Rights of the Child (CROC). The Tribunal acknowledges that the best interests of the child must be treated as a primary consideration by administrative decision makers. The Tribunal has done so in this matter and elevates the weight afforded to the evidence which suggests significant emotional, financial and psychological hardship to the applicant, his children and his partner if the applicant’s visa is cancelled.

35. The evidence before the Tribunal is that the applicant has been a present and supportive father to his two children. The Tribunal also notes that his partner, [Ms A], is pregnant with their third child. The couple have been together for around [a number of] years and were separated for a period of around 12 months when the applicant was indulged in a drug habit. He nevertheless continued to support them financially and visited them frequently during his separation from [Ms A]. The applicant’s eldest child made affecting handwritten representations on his behalf as did other members of the applicant’s family, especially [Ms A].

36. The Tribunal has carefully reflected upon the factors in favour of and against the cancellation of the applicant’s visa. The factors that weigh heavily in favour of cancellation is the applicant’s history of drug use and [crimes]. Both could be properly considered as risks to the safety of the Australian community. The factors weighing most heavily against cancellation are the best interests of the applicant’s children, the applicant’s remorse and steps towards rehabilitation and the forthcoming birth of his third child with a long term partner.

37. The Tribunal considers, on balance, that the discretionary factors against cancellation of the visa outweigh those factors against. Any further criminal activity by the applicant would have shifted the balance the other way.

38. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    DECISION

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

    Ann Duffield
    Senior Member