Te Rangi (Migration)

Te Rangi (Migration) [2019] AATA 6883 (19 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jahdae Topia Te Rangi
CASE NUMBER:  1924566
HOME AFFAIRS REFERENCE(S):          BCC2018/6028844
MEMBER:Antoinette Younes
DATE:19 December 2019
PLACE OF DECISION:  Sydney
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 19 December 2019 at 4:28pm

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – ground for cancellation – risk to safety of Australian community or individual – convicted of offences which the Tribunal considers to be serious – public nuisance – assault or obstruct police officer – wilful damage – consideration of discretion – – degree of hardship – genuine relationship with an Australian citizen – valuable contributions to employer – steps taken to address alcohol consumption – best interest of child – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 116
CASES
Gong v MIBP [2016] FCCA 561
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 26 August 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).
The delegate cancelled the visa under s.116(1)(e) on the basis 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. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 21 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from two witnesses.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. 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.
Does the ground for cancellation exist?
Section 116(1)(e) - risk to Australian community or individual
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].
In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record, a copy of which the applicant provided to the Tribunal in support of the application for review.
Relevantly, the Tribunal noted that information from Queensland Police indicates that on the evening of 13 April 2018, the applicant was at the Black Nugget Hotel. He was intoxicated and security staff got involved. He was asked to leave the premises but the applicant remained. He engaged in a physical altercation with security staff. He was restrained and police were called. When the police arrived at the hotel, the applicant was aggressive and abusive. The police handcuffed him and he was not complying with instructions as they moved him towards the police vehicle. When police attempted to put him into the police vehicle, he placed his feet on both sides of the car door and straightened his legs in an attempt to prevent police from getting him into the vehicle. He was yelling abuse at the police and continued to resist and struggle as they were restraining him. Once inside the vehicle, the applicant continued to yell at the police to let him out and he was kicking the door of the car. The applicant was transported to Moranbah Watch House. He was released on conditional bail and had to appear at Moranbah Magistrates Court on 5 June 2018.
The Tribunal referred to another incident on the evening of 16 December 2018, when the applicant was involved in a physical altercation with his brother in Moranbah. They were intoxicated and a member of the public attempted to stop the altercation. The applicant and his brother approached in a threatening manner which caused the person to fear for his safety. The person attempted to leave the scene but the applicant jumped onto the bonnet of the person’s vehicle which caused major damage to the windscreen and roof of the vehicle. Police and ambulance attended but the applicant became aggressive and violent with paramedics and the police.
The applicant was charged with multiple offences. On 17 December 2018, at McKay Magistrates Court, he was convicted of: Commit public nuisance licensed premises or in the vicinity of licensed premises (on 13 April 2018), Assault or obstruct police officer licensed premises (on 13 April 2018), Common assault (on 13 April 2018), Failure to appear in accordance with undertaking (on 5 June 2018), Commit public nuisance (on 16 December 2018), Obstruct police officer (on 16 December 2018), Wilful damage (on 16 December 2018), Obstruct/hinder ambulance officer (on 16 December 2018), and Fail to leave licensed premises (on 13 April 2018). The outcomes were convictions recorded, probation for 18 months, Compensation of $500, Fines of $500 (x2), Banning order remain in force to and including 16 December 2019 unless amended or revoked.
On 27 March 2019, the Department sent to the applicant a Notice of Intention to Consider Cancellation. In his response of 11 April 2019, he stated that:
·He moved to Australia intending to find full-time work to be able to support himself. In New Zealand, he faced many hardships that provoked him to make a significant change to move to Australia. He struggled to find work and support himself to the extent where he was homeless at one stage in his youth. He did not have support from his family or friends. Whilst living in Australia, he found work and earned an income. If he were to return to New Zealand, he would re-experience the hardship. He will not receive any help from his family and he would not have anywhere to go. Since offending, he has reconsidered his actions and he has regrets.
·A number of people rely on him and they would face serious hardship if he were forced to leave Australia. He moved to Australia intending to find work not just for himself but in order to support his daughter. He did not have a great upbringing and he became a father at the age of 16 which was hard. His family disowned him and he struggled to support his daughter and mother of his child. In Australia, he has been earning an income that has allowed him to support his daughter as well as set up a life to assist his daughter to live in Australia eventually.
·His current partner is also dependent on him financially. He is in a de facto relationship and his partner lives with him. She is a full-time university student but only works minimal hours. She does not earn enough income to live on her own. She is not in contact with any members of her family so if he were to leave, she would not be able to afford housing. He would really like to prevent his partner from becoming homeless or struggling to the point where she could no longer finish her university degree. His partner was born in Australia and has lived here since that time.
·He understands the seriousness of his actions and he assures that he does not intend to reoffend ever again. He understands the way in which he has impacted others and he apologises to those people. He is genuinely sorry. He did not mean to hurt anyone. He is a very positive and caring individual however at the time of his offending, he was intoxicated. He understands that this behaviour is unacceptable and he has learned not to touch alcohol since that time. He does not view himself as a threat to the community and he has a number of people speaking on his behalf in regards of his behaviour and attitude. He has made mistakes. He was young and naive and did not know any better because of the kind of upbringing that he has had. He has recently been promoted within his work and he does not plan on ruining the current position.
In support, the applicant provided submissions, references from Tammy Midson (Supervisor, GMS Wholesale Stationers has known the applicant for two months), Rani Grewal (19 years of age, applicant’s partner), who states that she is reliant on the applicant as her main source of income, Leilani Tulifau (close friend), Victoria Sitia (friend), Thomas Roberts (work colleague), Keith Russell (colleague and friend), Mereana Los’e (mother of the applicant’s daughter), and Danny Corcoran (Warehouse Manager). He also provided the birth certificate for his daughter, probation orders, Verdict and Judgement record, payslips, and National Police Check.
In a Statutory Declaration dated 11 November 2019, the applicant provided the following background:
·He was born in Levin in the North Island of New Zealand and he lived there until he came to Australia initially in 2017.
·Throughout his life, his parents had issues with drugs and alcohol. He experienced neglect, violence, trauma, homelessness and a transient life for much of his childhood. He had a terrible childhood and suffered depression. On multiple occasions, he attempted suicide. He has never been treated or counselled for his childhood upbringing which has impacted on him as an adult. At the age of 12 or 13, his auntie took him and showed him a better life. She was an excellent role model and she helped him see a better future. At the age of 16, he had his daughter who is now five years old. He had to leave school to work and earn money to support her so he was not able to complete his high school certificate. Once he had his daughter, he dreamt of a better life for her. Employment opportunities in New Zealand were limited for him and he knew there are better opportunities in Australia so he decided to come to Australia. To his knowledge, he has no criminal history in New Zealand.
·He arrived in Australia in 2017 and went to Moranbah in Queensland to live with his brother. On his first day, he got a job at the Black Nugget hotel in the bottle shop. He was appreciated by his employers. On 13 April 2018, he got into trouble at the Black Nugget hotel while drinking there that night. He was intoxicated and the police became involved. His memory of the night is a bit blurry. He has apologised to his employer and kept his job at the Black Nugget hotel after the incident which is a reflection of the high level of esteem in which the employer held him. They valued his strong work ethic, and were happy to allow him to keep working there. He feels remorseful and grateful that they were able to see his strength as an employee.
·He moved to Sydney from Queensland in mid-2018. He checked with the authorities about any outstanding issues from April 2018 and he was advised by the Mackay Courthouse that there was nothing outstanding for him. As he heard nothing subsequently he thought he was free to leave. He did not know there was a June Court date but he got into trouble for not showing up. When he moved to Sydney he worked with a job agency at a range of client sites.
·Since the end of September 2018, he has been in a relationship with Rani Grewal, an Australian citizen. They lived together and she is financially dependent on him while finishing a Bachelor of Nursing degree at Western Sydney University.
·In December 2018, on a trip back to Queensland to see his brother, he got into trouble again. He and his brother got into an altercation while intoxicated. He does not consider the record of the incident with the car as an accurate reflection of what occurred but he was instructed by his solicitor to plead guilty to all charges so he did. He got hit by a car during the time of his fight with his brother. Both he and his brother were then charged with obstructing police and ambulance who attended afterwards. He denies aspects of what occurred during that incident but he has accepted the charges and the punishment imposed. He was personally injured during that incident and had a fractured pelvis and leg. He had to remain in Queensland for some time and was later given permission to return to New South Wales. He obtained full-time employment and he is currently working. He loves his job and he believes he is a dedicated employee. His daughter and her mother have recently moved to Australia to be closer to him. In Australia, he is able to earn enough money to provide for his daughter.
·He is deeply sorry for the trouble he had with the law in 2018 and he has matured. It has been a massive learning curve and a big wake-up call. He is aware of the privilege of being in Australia and he wants the opportunity to redeem himself. He has complied with all the terms of conditions of his probation and he has been advised that he no longer needs to report as he is deemed a low risk. He no longer gets intoxicated, although he continues to drink a couple of beers. He does not want to risk his future or that of his daughter. There is nothing for him in New Zealand. He is committed to remaining in Australia on a long-term basis. He and his partner have recently had a miscarriage and they are devastated by the incident. They would like to have children in the future. Her siblings rely on her so she cannot go to New Zealand. He feels that his criminal record is not a reflection of who he is today. The person in those documents is not the person he is now.
In submissions dated 14 November 2019, the representative essentially argued that there is no indication that the applicant is or may 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. The representative submitted that in any event, there are discretionary factors to mean that the visa should not be cancelled.
Summary of the evidence at hearing
The applicant gave evidence that he grew up in New Zealand and that he has 14 siblings. He stated that he has not seen his mother for approximately 10 years and that when he was about 12 years old, his auntie cared for him. He was homeless at times but managed to complete the majority of his secondary schooling. He enjoyed playing rugby.
He gave evidence that his daughter is now five years old and that both the former partner and the daughter are currently in Australia. He explained to the Tribunal that when he was in New Zealand, his relationship with his former partner deteriorated. They tried to reconcile and on occasions did but eventually the relationship ceased. Currently, his former partner is in a relationship with a person in Australia. He sees his daughter every weekend and there are no formal custody arrangements.
The applicant indicated to the Tribunal that he is currently in a relationship with Ms Grewal who is highly supportive of him. She is currently studying a Bachelor of Nursing degree and they intend to marry but waiting for the resolution of his visa cancellation.
In relation to the convictions, the applicant expressed his remorse and at the fact that he has hurt other people. He explained to the Tribunal that his father had just died but expressed the view that alcohol played a significant role in his offending. The Tribunal asked him if he has taken any action in relation to the alcohol issue and he stated that he went to counselling but only once or twice. He stated that he does not wish to return to New Zealand because there is nothing for him to go back to. He stated that he would be homeless and without his family in Australia. He stated that his partner relies on him for both emotional and financial support.
Ms Rani Grewal, the applicant’s current partner is an Australian citizen. She gave evidence that she and the applicant have been living together since the beginning of 2019 and that previously, she was living with her mother. She explained to the Tribunal that she is undertaking nursing studies and anticipates to complete her degree in about two years’ time. She is aware of the convictions and she indicated that there was a sense of unfairness in relation to the way the applicant was treated during the incident of 16 December 2018. She indicated that she works part-time and earns approximately $400 a week net but is reliant on the applicant for financial support including the payment of rent. She stated that she would not know where to stay if the applicant had to leave Australia. She gave evidence that she has recently had a miscarriage about which she expressed great sadness.
Mr Craig Taylor, is the applicant’s current work supervisor. Mr Taylor spoke highly of the applicant’s leadership qualities as well as the enthusiastic attitude that he displays. Mr Taylor is aware of the applicant’s conviction and expressed the view that he would not want to lose the applicant as he considered him to be of great value to the business.
FINDINGS & REASONS
On the evidence, the Tribunal finds that on 17 December 2018, at McKay Magistrates Court, the applicant was convicted of: Commit public nuisance licensed premises or in the vicinity of licensed premises (on 13 April 2018), Assault or obstruct police officer licensed premises (on 13 April 2018), Common assault (on 13 April 2018), Failure to appear in accordance with undertaking (on 5 June 2018), Commit public nuisance (on 16 December 2018), Obstruct police officer (on 16 December 2018), Wilful damage (on 16 December 2018), Obstruct/hinder ambulance officer (on 16 December 2018), and Fail to leave licensed premises (on 13 April 2018). The outcomes were convictions recorded, probation for 18 months, Compensation of $500, Fines of $500 (x2), Banning order remain in force to and including 16 December 2019 unless amended or revoked.
The Tribunal has noted the applicant has a different version of events although he does accept that he has been convicted and he has taken responsibility. He has expressed remorse and apologised. The Court’s finding is that the applicant has committed the offences with which he was charged. It is not open to this Tribunal to go beyond the findings of the Court. In Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, the Full Federal Court held that a conviction and the sentence imposed as a result of a conviction, are matters for the criminal law and its procedures are not for an administrative tribunal. Their Honours Branson, Lindgren and Emmett held:
[45] To impugn the sentencing process in that way is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures. If a sentence, like a conviction, is otherwise than in accordance with the law, a right of appeal is available to remedy any miscarriage of justice. If new or fresh evidence comes to hand, again criminal procedures can be availed of.
[46] While it stands, the conviction and sentence must be conclusive, so far at least as concerns tribunal reviewing a decision that takes the conviction and sentence as its starting point.

It is not open to the Tribunal to critically evaluate or question the conclusions and the findings of the Court. The Tribunal must accept those findings as evidence of guilt. Accordingly, the Tribunal finds that the applicant has been convicted of offences which the Tribunal considers to be serious.
The applicant has stated that he would not reoffend but he has also acknowledged that he continues to consume alcohol, albeit at a limited level. On balance, the Tribunal is satisfied that the offences are reasonably serious, the convictions, and the sentence imposed support a finding that the applicant may be a risk to the community or individuals as contemplated by s.116(1)(e). The standard in that section only requires that the applicant may or might be a risk rather than requiring that the applicant is or would be a risk.
In consideration of the evidence as a whole, the Tribunal is satisfied that the presence of the applicant 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 and consequently the ground under 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.
Consideration of discretion
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
·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
On 25 January 2018, the applicant was granted a Special Category (Class TY subclass 444) visa, valid until departure from Australia. Under the 1973 Trans – Tasman Travel Arrangement, New Zealand citizens can enter and leave Australia freely and live in Australia indefinitely upon grant of that visa.
The applicant has stated that he came to Australia for a better life, including better employment and financial opportunities. The applicant is a young person (date of birth 26 January 1998) and he has a daughter who is about five years old. At the time of his arrival in Australia, his daughter and former partner were living in New Zealand. Currently, they are both in Australia. The applicant has claimed that he has had a tough and challenging upbringing. He saw Australia as providing opportunities for a better life, both economically and personally.
The applicant is currently working, consistent with his stated purpose of coming to Australia. In the course of the hearing, his employer spoke very highly of the applicant, of his skills and that the employer would not want to lose the applicant as an employee. The employer expressed the view that the applicant would be a massive loss to the business.
The Tribunal is satisfied that the applicant’s travel and stay in Australia are consistent with the purpose of the applicant’s travel and stay in Australia.
The Tribunal gives this consideration significant weight in the applicant’s favour.
·the extent of compliance with visa conditions
There is no evidence before the Tribunal of non-compliance with visa conditions on the part of the applicant.
The Tribunal gives this aspect weight in favour of the applicant.
·degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal accepts the evidence that the applicant is in a genuine relationship with an Australian citizen.
Ms Grewal gave evidence of the emotional and financial support which the applicant provides. She spoke with sadness of the recent miscarriage but also of the plans for the future which have been put on hold due to the applicant’s visa cancellation. They plan to marry.
The Tribunal was impressed with Ms Grewal and the authenticity of the manner she gave evidence. The Tribunal is satisfied that in case of cancellation, there would be significant financial, emotional, and practical hardship to Ms Grewal. She is currently undertaking a Bachelor of Nursing degree and has approximately two more years of study remaining. In case of cancellation, separation of the couple would be a likely outcome as she is keen to continue her studies. She is an ambitious young woman who wants to have a career in nursing. She also needs the financial support of the applicant in order to enable her to continue with her studies. Although she works part-time, her earnings would not be sufficient for her to support herself whilst she is a full-time student.
The applicant has a five-year-old daughter and she and her mother who is the applicant’s former partner, are currently in Australia. The former partner is now in a relationship with another person in Australia. The Tribunal is satisfied that there would be significant hardship faced by the applicant in case of cancellation if he had to depart Australia, leaving his young daughter behind. The Tribunal acknowledges that the applicant did leave his daughter in New Zealand when he first came to Australia but that does not necessarily mean that the hardship is acceptable or minimised.
The applicant is currently working in Australia and his employer values his contributions. The Tribunal acknowledges that in case of cancellation, there would be hardship to both the employer and the applicant who would lose a position. The applicant is a young person and he has faced challenges in his life as he was growing up. He was homeless at various stages in his life and this could potentially happen if he had to return to New Zealand.
There are adverse legal consequences in case of cancellation including becoming unlawful, being involuntarily removed from Australia, and being barred under s.48 from making further applications for any visas. Although those are intended legislative consequences, they do present particular hardship to the applicant given his family situation, particularly having his daughter in Australia.
The Tribunal gives the consideration of hardship significant weight in favour of the applicant
·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
The applicant’s visa was cancelled on the basis of the convictions which gave rise to the ground for cancellation under s.116(1)(e)(i). The applicant has been convicted of offences that the Tribunal considers to be serious and significant involving inappropriate conduct towards the police and paramedics.
In submissions to the Tribunal, it was contended that there are several factors to be given significant weight against cancellation, particularly the fact that the applicant was not subject to any term of imprisonment, the applicant has been given permission to move states and is no longer required to report to probation “due to good behaviour and being deemed a low risk of reoffending. He has complied with all conditions of his probation”. The applicant has expressed “sincere contrition for his offences”.
It was submitted that the applicant has made significant changes to his lifestyle in terms of alcohol consumption and that he acknowledges the impact of alcohol on his behaviour. He has moderated his consumption to minimal or occasional, avoiding all levels of intoxication.
The Tribunal has noted those submissions but the Tribunal remains concerned that the applicant has not addressed the alcohol issue in a long term manner.
The Tribunal notes that the applicant gave evidence that he has seen a counsellor on a couple of occasions but the Tribunal is of the view that the applicant needs to give this issue further consideration in order to ensure a lifestyle free of offending. The Tribunal does not wish to overstep its role but the Tribunal considers the alcohol intake to be a vulnerable point for the applicant.
The consumption of alcohol is within the applicant’s control and the relevant charges related to incidents during which he was intoxicated. Accordingly the Tribunal does not consider that those matters were beyond his control.
The Tribunal gives this consideration weight in favour cancellation.
·past and present behaviour of the visa holder towards the department;
The applicant has been cooperative with the Department and responded to the NOITCC.
The Tribunal gives this aspect weight in the applicant’s favour.
·whether there would be consequential cancellations under s.140;
There is no evidence of any consequential cancellation.
The Tribunal gives this aspect neutral weight.
·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;
The Tribunal has dealt with this issue under the consideration of hardship.
There are adverse legal consequences including becoming unlawful, being involuntarily removed from Australia, and being barred from making further applications for any visas.
Although those consequences are intended legislative consequences to give power to detention and removal from Australia, given the hardship as outlined above, the Tribunal has given this aspect weight in the applicant’s favour.
·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
Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). Non-refoulement obligations are not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103].
Although it was submitted that there are no non-refoulement obligations in this matter, on the evidence, the Tribunal finds otherwise. The applicant has a five-year-old daughter currently living in Australia with her mother.
As a signatory to the Convention on the Rights of the Child (CROC), Australia has an obligation concerning the applicant’s daughter. The CROC applies to children under 18 years of age. By being a signatory, Australia has agreed to act in a manner consistent with the Convention, recognising the best interest of the chid. The CROC sets out the rights of children in 54 Articles and two Optional Protocols. It spells out the basic human rights that children everywhere have: the right to survival, to develop to the fullest, to protection from harmful influences, protection against abuse and exploitation, to participate fully in family, cultural and social life. The four core principles of the Convention are non-discrimination, devotion to the best interests of the child, the right to life, survival and development, and respect for the views of the child. The CROC sets out standards in relation to health care, education, legal and civil rights.
Article 3 of the CROC states:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
The Tribunal needs to consider how the best interests of the applicant’s daughter would be affected by a decision to cancel the applicant’s visa. It is reasonable to assume that it is in the best interests of children to be with their parents. The Tribunal accepts the evidence that the applicant sees his daughter once a week and in case of cancellation, she would be deprived of that connection and of an ongoing relationship with her father. The Tribunal is satisfied that it is in the daughter’s best interests that the applicant’s visa is not cancelled. In these circumstances, the Tribunal is satisfied that Australia would be in breach of the CROC in case of the visa cancellation.
The Tribunal has carefully considered all relevant material before it and although the Tribunal found that the ground for cancellation exists, on consideration of all the discretionary factors, the Tribunal is satisfied that the cumulative evidence and on balance, the applicant’s visa should not be cancelled. The most significant favourable matters include the hardship that the applicant, his partner, his employer, his daughter would face in case of cancellation. The other significant matter relates to the best interests of the applicant’s daughter who is currently living in Australia. The considerations can be given as much weight as the Tribunal considers to be appropriate in the circumstances and it is not a set or formulaic exercise. The best interest of the applicant’s daughter is a significant consideration in this case.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.
Antoinette Younes
Senior Member

[2019] AATA 6883

19 December 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction