Thoms (Migration)

[2019] AATA 1292

Thoms (Migration) [2019] AATA 1292 (10 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Andrew Brian Thoms

CASE NUMBER:  1831532

HOME AFFAIRS REFERENCE(S):           BCC2018/1712049

MEMBER:Kira Raif

DATE:10 April 2019

PLACE OF DECISION:  Sydney

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

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Statement made on 10 April 2019 at 1:50pm

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – ground for cancellation – risk to safety of Australian community or individual – contravention of an Intervention Order – convicted and fined – extensive criminal history – consideration of discretion – social and economic ties in Australia – nature and severity of offences – risk of reoffending not insignificant – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), 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 17 October 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 national of New Zealand born in January 1969. He was granted the Special Category visa on 30 March 2006. On 18 September 2018 the applicant was issued with a 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 17 October 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 9 April 2019 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. 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.

5. 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].

6. 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.

   Does the ground for cancellation exist?

7. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

8. The applicant was granted the Special Category visa on 30 March 2006 when he last entered Australia. On 16 April 2018 Victoria Police informed the Department of Home Affairs that the applicant had been arrested and charged in relation to breaching an Intervention Order. The police subsequently informed the Department that the applicant appeared in court on 23 April 2018 and was convicted and fined $800.

9. The primary decision record indicates that the Intervention Order relates to the applicant’s former de facto partner and her daughter. The Intervention Order is in place until 12 February 2020 and the partner and child are named as the aggrieved persons in the Order.

10. The primary decision record also indicates that:

    a.The applicant had previously been charged with contravention of the Intervention Order. He was fined $500 without conviction on 28 March 2018 at the Moorabbin Magistrates Court for contravening a Family Violence Final Intervention Order.

    b.The applicant was convicted on 5 October 2015 at Melbourne Magistrates Court and fined $650 for stating a false address and failing to answer bail.

    c.On 23 August 2011 the applicant appeared before the Lismore Local Court and was fined $1,000 for common assault.

    d.On 17 October 2007 the applicant was fined $200, given four days imprisonment and disqualified from driving for one month due to driving/attempting to put motor vehicle in motion under the influence of alcohol.

    e.On his entry to Australia on 30 October 2004 the applicant declared on the Incoming Passenger Card (IPC) that he had a number of convictions. The report obtained by the Department from New Zealand police indicates that the applicant had the following convictions:

    1995 – 1996  Multiple breaches of Protection Orders

    1994, 2001  male assaults female (twice)

    2001  contravenes Protection Order

    1990, 1992  driving when disqualified, careless driving

    2001  assault child

    2001  threat to kill

    2002  common assault

    2001  contravene Protection order multiple counts

    1990-2000  multiple traffic and driving offences

    Driving offences (drink driving).

    f.The report indicates that the applicant was sentenced to several terms of imprisonment (suspended) and one term of nine months.

11. In his written response to the NOICC dated 25 September 2018 the applicant denies that his presence in Australia may be a risk to the safety of the Australian community. The applicant states that the laying of charges by the Victorian police for the contravention of an intervention order do not warrant sufficient grounds for the cancellation and his actions which resulted in the conviction do not indicate that his presence may be a risk. The applicant states that the court appearance in March 2018 occurred as a result of him entering his garage at his residence where he observed his de facto’s daughters using drugs. He attempted to intervene by asking the daughters to leave the house and they informed the police. The applicant states that his April 2018 court appearance also occurred as a result of his attempt to intervene in the daughters’ use of drugs. The breach of the Intervention Order occurred as a result of him consuming a single alcoholic beverage at his work place prior ot entering his residence. The applicant states that the October 2015 court appearance regarding the provision of a false address related to him inadvertently providing his driver license with an outadated address.

12. The Tribunal considers the applicant’s submission unpersuasive. If the applicant was subject to an Intervention Order which prevented him from attending the property or having contact with his former partner’s daughters or other forms of conduct, then the applicant was not permitted to engage in such conduct no matter what his motivations were. If the applicant was concerned about the safety and well-being of others, he could have called the police. The applicant would have been well aware of the terms of the Intervention Order and his willingness to breach the Order is of significant concern. 

13. The applicant states that the other incident related to a consumption of only a single alcoholic drink (in oral evidence the applicant referred to two beers). However, again, the applicant would have been aware that the Order prevented him from using alcohol so it is of little significance whether he consumed one drink or multiple drinks. The applicant behaved in a way that contradicted the requirements of the Order. He did so knowingly. The applicant’s conduct indicates his willingness to breach the law.

14. Significantly, the applicant’s written submission fails to address the much more problematic aspect of the evidence, and that is the existence of the Intervention Order. The fact that a formal Family Violence Intervention Order was issued indicates that an assessment was made that such an order was necessary to prevent the possibility of violent conduct by the applicant towards the protected persons. This is in addition to the assault conviction in 2011 and multiple repeated breaches of the driving laws in Australia and New Zealand. The information from New Zealand police indicates that an Intervention Order was issued in relation to the applicant in New Zealand and that there were multiple instances when it was breached.

15. In oral evidence, the applicant stated that in Australia, he moved in with his partner and her two children. They were using drugs. He saw them using drugs and had an argument with his partner. The daughter called the police and the police would not even listen to him. At the time he breached the Order as he had two beers at work before he went home. There was another argument and the police were called. Because he had alcohol on his breath, he was deemed to have been drinking and that was the breach of the Order. In relation to the offences in New Zealand, the applicant states that he was stupid and it all boils down to alcohol. He cannot explain his actions otherwise.

16. The applicant repeatedly told the Tribunal that his past convictions were all related to alcohol. He has now done alcohol counselling and no longer drinks. The applicant said that he has made mistakes in life but since giving up alcohol, he finds it easier to get on in life. The applicant states that he attended two alcohol and drug meetings. The applicant states that he had attended a rehabilitation course since his last conviction. He completed two sessions but he did not complete the course as he moved to Sydney to avoid the situation and he felt he could give up alcohol and do it on his own.

17. The existence of multiple Protection or Intervention Orders and the assault convictions indicate that there was violence or threats of violence by the applicant towards others. The numerous breaches of the Protection Orders indicate that the applicant is incapable or unwilling to abide by the laws while his explanation about the reasons for the breaches suggests that he is not appreciative of his actions.

18. Having regard to the applicant’s criminal history, the Tribunal finds that the applicant had engaged in criminal, offensive or anti-social behaviour over a lengthy period of time. He has shown a significant disregard for the law and his legal obligations. The applicant presented in his submission to the delegate a letter from Ms Verdins who states that the applicant approached her for help and guidance regarding drinking and she saw the applicant about once a fortnight in the past 12 months. Ms Verdins states that the applicant had identified personal issues which had a triggering effect and educated himself in the risks of ongoing drinking, and he has made progress in addressing his alcohol issues. It states that his daily consumption has decreased and he no longer engages in risky behaviour. The Tribunal notes that the applicant’s own evidence to the Tribunal is that he had attended two sessions on alcohol use and has not attended any other sessions.

19. The Tribunal is also mindful that the most recent conviction occurred after the applicant claims to have started his dealings with Ms Verdins. That is, the Tribunal is not satisfied that the applicant’s behaviour has changed, or will change in any meaningful way, despite his work with Ms Verdins. There is also no relaiable evidence before the Tribunal, other than the applicant’s own assertions, to demonstrate that the applicant’s past criminal conduct was caused solely by alcohol abuse, so that any risk would be removed if the applicant reduced or completely ended the use of alcohol.

20. The Tribunal is mindful that the first convictions occurred in 1995 and there had been multiple convictions since that time. The applicant claims his conduct was caused by alcohol. The Tribunal finds it problematic that over so many years the applicant had not engaged in any rehabilitation programs or any conduct to help him avoid such conduct. The applicant states that he was feeling worthless and had bad relationships. Since he was facing removal from Australia, he realised how serious it was. It is of some concern to the Tribunal that the convictions occurred over a lengthy period of time, representing a pattern of violent or anti-social behaviour, yet the applicant had not taken any steps until very recently to change his conduct or to engage in programs that could assist him in changing his conduct. That may suggest that the applicant’s offending was of little concern to him.

21. The applicant’s evidence to the Tribunal is that such conduct will not occur again. The applicant states that he no longer drinks, as he had attended two sessions since his last conviction. The Tribunal accepts that the applicant’s last conviction occurred about one year ago and there is no evidence before the Tribunal that the applicant has re-offended since then. However, on the very limited evidence before it, the Tribunal is not satisfied that the applicant had effectively dealt with whatever underlying factors that had caused him to consume alcohol in the past. There is inadequate evidence of his rehabilitation and the Tribunal is not satisfied that the risk of the applicant engaging in the same conduct in the future is minimal. 

22. The Tribunal finds that the multiple protection orders that have been put in place to protect others against the applicant demonstrate that the applicant may pose a risk of harm to others. Several breaches of these orders show that the applicant is either unable or unwilling to change his behaviour in a way that avoids harm to others. The Tribunal notes that some of the convictions that occurred in New Zealand relate to very serious offences, such as assault and threat to kill and the fact that the applicant was sentenced to terms of imprisonment underlies the seriousness of these offences. The Tribunal has found the applicant’s evidence of rehabilitation inadequate and the Tribunal is not satisfied that there is a low risk of reoffending.

23. The Tribunal finds that for these reasons, the applicant’s presence in Australia may be a risk to the safety of other individuals. Further, the multiple other convictions, including driving offences, demonstrate the applicant’s persistent disregard for the law. Having regard to the number and the nature of the offences and the length of time over which these occurred, the Tribunal finds that the applicant’s presence in Australia may be a risk to the safety or good order of the Australian community.

24. 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 visa should be cancelled.

    Consideration of discretion

25. There are no matters specified in the Act or Migration Regulations 1994 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

26. The applicant told the Tribunal that he travelled to Australia for the weather and warmth and for better opportunities. When he left, it was hard to make good money in New Zealand. The applicant said that he was working as a carpet layer in New Zealand but he said it was harder to do that job in New Zealand.

27. The applicant states that there is a compelling need for him to remain in Australia because he has a lot of support in Australia and he is now starting to enjoy life for the first time. In the past, he was always stressed out but now he is enjoying life. If the applicant’s evidence is that he is enjoying life because he no longer uses alcohol (rather than because of his residence in Australia), the Tribunal is not satisfied that the applicant would be unable to enjoy life in New Zealand.

28. The applicant states that he is feeling better in a warmer climate and he might be unable to continue with his work in New Zealand. The Tribunal accepts that the applicant prefers the warmer climate and employment opportunities in Australia but, in the Tribunal’s view, that does not constitute a compelling reason for remaining in Australia.

    The extent of compliance with visa conditions

29. There is no evidence that the applicant failed to comply with any visa conditions.

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

30. In his written submission to the delegate the applicant refers to having economic ties in Australia. He states that he has lived in Australia since 2004 and works as a carpet layer. He has not returned to New Zealand since his arrival in Australia and has no family, economic or social ties in New Zealand. The applicant provided an employment reference letter. The Tribunal accepts that the applicant is gainfully employed in Australia and that he may lose that employment if he is not able to remain in Australia. The applicant has not satisfied the Tribunal that he would be unable to obtain employment in New Zealand, despite the length of his absence from that country. The applicant’s evidence to the Tribunal is that he used to do the same work in New Zealand, although it was harder to work as a carpet layer due to the cold weather.

31. Contrary to the applicant’s claims, the Tribunal does not consider that the absence of family, social or economic ties would preclude the applicant from obtaining employment in New Zealand. The applicant has not presented any evidence of having made any attempt to find a job in New Zealand or of having been unable to do so. The Tribunal has formed the view that the applicant would be able to do the same work he did prior to his entry to Australia and that he has continued in Australia, even if he may not be able to work as much as he does now.

32. The Tribunal is prepared to accept that due to the period of his absence, the applicant may have limited ties in New Zealand. However, he also told the Tribunal that he has no family in Australia. Despite that, the applicant has been able to settle well in Australia and the Tribunal is not satisfied he would have any difficulties re-settling in his home country.

33. The applicant refers to ‘enormous’ hardship if his visa is cancelled, as he had spent over $35,000 on furniture and rental bond and will have to forfeit the expenditure. The applicant explained to the Tribunal that he was supporting his partner and her children and bought things when they were in the relationship. After the relationship broke down, he left the family home but his partner calls him some time to taunt him. The applicant’s evidence is that the financial loss is due to the breakdown of the relationship and not because of the visa cancellation. The applicant has no access to his old home and the furniture because he is no longer in a relationship with his partner.

34. The applicant told the Tribunal that he has no family in New Zealand. However, he also told the Tribunal that he has no family in Australia and from that perspective, the Tribunal does not accept that lack of family in New Zealand would cause greater hardship in New Zealand than in Australia.

1. The applicant states that has attended a doctor in Australia and has been given anti-depressant medication. There is little evidence before the Tribunal concerning the applicant’s medical condition and the applicant has not satisfied the Tribunal that he would be unable to obtain relevant treatment in New Zealand. The applicant conceded in oral evidence to the Tribunal that there is no reason he could not obtain the treatment in New Zealand.  

2. The applicant states that he has good friends in Australia and has formed close connections. The Tribunal accepts that evidence and accepts that the applicant has strong social links and support from the community and his employer. The Tribunal accepts that evidence.

3. Overall, the Tribunal accepts that some hardship would be caused to the applicant if he was required to leave Australia as a result of his visa being cancelled.

   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

4. The grounds for cancellation arise because the Tribunal has formed the view that the applicant’s presence in Australia is or may be a risk to the safety or an individual or individuals and may be a risk to safety or good order of the Australian community. The applicant’s evidence is that the multiple convictions occurred due to his use of alcohol.

   Past and present behaviour of the visa holder towards the Department

5. The applicant states in his submission to the delegate that he has been honest in his behaviour and disclosed all criminal convictions upon his arrival in Australia. The Tribunal acknowledges that nothing adverse is known about the applicant’s behaviour toward the Department.

   Whether there would be consequential cancellations under s.140

6. There are no persons in Australia whose visas will be subject to cancellation under s.140 of the Act.

   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

7. 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. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention. The Tribunal accepts that in relation to most visa categories, the applicant may be subject to an exclusion period.

   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

8. There is no evidence, and the applicant does not claim, that he would be subjected to any form of harm in New Zealand and the Tribunal does not consider that Australia’s non-refoulement obligation would be breached as a result of the cancellation.

9. There are no children who would be affected by the cancellation.

   Any other relevant matters

10. The applicant’s evidence to the Tribunal is that all his offending is due to alcohol and he feels he has addressed that problem and he can promise he would not engage in such behaviour again.

11. The Tribunal has considered the applicant’s circumstances. The Tribunal has formed the view that there are grounds for cancelling the applicant’s visa. The Tribunal acknowledges that the applicant has been living in Australia for many years and that he had close ties to Australia. The Tribunal accepts that the applicant has been gainfully employed in Australia and that he has the support of his employer and members of the community. The Tribunal accepts that the applicant has no family in New Zealand and has been absent from the country for some time. The Tribunal accepts that a degree of hardhip may be caused to the applicant by the cancellation of the visa. The Tribunal acepts that if the applicant was required to leave Australia, he is likely to lose his employment and remove himself from the social connections that he may have formed in this country. The Tribunal is mindful, however, that the applicant lived in New Zealand until he was about 35 and in the Tribunal’s view, there is no reason why the applicant would not be able to re-establish himself in his home country.

12. The Tribunal accepts that there are reasons that favour the applicant. However, the Tribunal has also had regard to the nature and the severity of the applicant’s offences. The Tribunal places weight on the fact that the offences are numerous and took place over a lengthy period of time. The Tribunal has formed the view that the applicant has shown disregard for the law by persistently engaging in criminal and anti-social conduct. Many of the convictions relate to offences that involved violence towards others. While the applicant claims he no longer uses alcohol and will not reoffend again, the Tribunal finds the applicant’s claims unpersuasive, partly because the applicant continued to offend despite his ongoing sessions with Ms Verdins and partly because, on his own evidence, the applicant completed only two rehabilitation sessions and has not completed the program. The Tribunal has formed the view that the risk of re-offending is not insignificant and if the applicant does reoffend again, his conduct may involve risk to others. The Tribunal has formed the view that such matters outweigh other considerations.

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

    DECISION

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

    Kira Raif
    Senior Member