Tomerop (Migration)

[2018] AATA 5231

Tomerop (Migration) [2018] AATA 5231 (15 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chell Akim Tomerop

CASE NUMBER:  1703367

HOME AFFAIRS REFERENCE(S):           BCC2016/4225107

MEMBER:Antoinette Younes

DATE:15 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 15 October 2018 at 3:08pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – 572 Vocational Education and Training Sector visa – presence of the applicant in Australia is or may be, or would or might be, a risk to the former partner – criminal charges – decision under review affirmed

Practice and procedure – valid s357A certificate

LEGISLATION
Migration Act 1958, ss 48, 116, 140, 375A,
Crimes (Sentencing Procedure) Act 1999, s 10

CASES
Gong v MIBP [2016] FCCA 561

Tien & Ors v MIMA (1998) 89 FCR

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 February 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e) on the basis 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; 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.

3. The applicant appeared before the Tribunal on 11 October 2018 to give evidence and present arguments.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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.

   Does the ground for cancellation exist?

6. 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].

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 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.

   Section 375A Certificate

8. In the course of the hearing, the Tribunal advised the applicant of the existence of a s.375A Certificate in relation to documents in the Departmental file. The Tribunal is satisfied that the s.375A Certificate is valid because the documents subject to the Certificate contain confidential information relating to third parties and consequently the disclosure of that information may result in breach of privacy. The material subject to the Certificate contained limited information about the applicant’s charges, a summary of which is located in the decision record.

9. The Tribunal discussed with the applicant information contained in the delegate’s decision record which the applicant provided to the Tribunal. Specifically, the Tribunal indicated that it appears that on 11 December 2016, he was charged with two offences relating to common assault (domestic violence) inflicted on Ms [A]. The Tribunal further noted the existence of an Apprehended Violence Order (AVO) against the applicant naming Ms [A]  as the person in need of protection. The applicant agreed with this information and advised the Tribunal that Ms [A] is a former partner.

10. Prior to the commencement of the hearing, the applicant provided to the Tribunal a copy of documents dated 19 May 2017 from the Local Courts in New South Wales relating to Court outcomes. The Tribunal discussed the contents of those documents with the applicant. The Tribunal referred to the guilty verdicts, and to the information that although he entered a plea of not guilty in relation to 2 offences, the Court found that the offences were proven. The Tribunal noted that as well as making an Apprehended Domestic Violence Order for the protection of the former partner, and although the applicant was found guilty in relation to 2 offences, without proceeding to convictions, he was directed to enter into a good behaviour bond for 15 months in accordance with s.10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, to commence on 19 May 2017.

11. The Tribunal referred to the New South Wales Police Facts Sheet of 1 January 2017 which the applicant provided to the Tribunal and noted that the incident involved violence towards the former partner, including pushing her against the wall, using one hand around her throat and the other hand to cover her mouth and nose, taking a swing towards the former partner whilst holding the beer bottle but missing.  The Tribunal indicated that it considered violence to be serious.

12. The Tribunal asked the applicant if there have been any further offences. The applicant advised the Tribunal that on 9 July 2018, there was another incident relating to his former partner and a further Apprehended Violence Order has been issued against him. The Tribunal expressed concerns about this further incident and suggested that there might be an issue in this regard in terms of risk. The Tribunal further indicated that it appears that as soon as the period relating to the good behaviour bond had expired, a significant incident occurred raising concerns.

13. The applicant explained to the Tribunal that he has a tendency to lose his temper “very quickly”. He said the former partner was mad at him and had exaggerated the events. He however agreed with the above facts.

14. In a letter to the Tribunal, the applicant indicated that the assault incident happened because his former partner saw a text message on his mobile telephone and she was really mad and called the police. Similarly in an email to the Department on 17 January 2017 and in relation to the charges, the applicant indicated that his former partner saw on his mobile phone a text message which resulted in an argument. He stated that she was really mad, they had a fight and she contacted the police.

15. The applicant gave evidence that he was midway through his course and he was interested in completing his studies because in PNG, there is no aviation college which means that he would be unable to complete his course. He said it was his dream to become a pilot.

16. The Tribunal does not look behind the Court’s orders and the Tribunal gives significant weight to the Court’s findings that two offences were proven.  On the evidence before it, the Tribunal finds that the applicant has been charged with serious violent offences and despite pleading not guilty in relation to 2 offences, the offences were proven and he was directed to enter into a good behaviour bond for 15 months commencing 19 May 2017.

17. Moreover and on his own admission, a further incident occurred as recently as 9 July 2018 which led to another AVO in relation to the same protected being issued against the applicant. The Tribunal considers the recent incident to be significant and indicative of a pattern of conduct suggesting that the applicant remains to be a risk. The Tribunal notes that although the applicant was not convicted, he was directed to enter into a good behaviour bond.

18. In the course of the hearing, the Tribunal discussed with the applicant what appear to be anger management issues.  He stated that he loses his “temper very quickly” and apart from speaking to the pastor, he has not sought any professional assistance.  The applicant’s own admission that he has issues with his temper suggests that he remains to be a risk to the former partner, as evidenced by the current AVO.

19. On the evidence before it, the Tribunal finds that the presence of the applicant in Australia is or may be, or would or might be, a risk to the former partner.

20. For these reasons, 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

21. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion.

22. 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

23. The applicant travelled to Australia as the holder of a student visa which was granted on 21 August 2015 with an expiry date of 13 July 2017. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to, and stay in Australia was to study.

24. In response to the Department and in the course of the hearing, the applicant advised that he would like to complete his course in aviation and that there is no such course in PNG. However, he also advised the Tribunal that because he was unable to obtain the relevant clearance from the aviation authorities, he was unable to continue studying.

25. The applicant provided the Tribunal with an Aviation Security Identification Card from the Australian Civil Aviation and Safety Authority, which was apparently issued prior to the recent AVO of July 2018. He explained that in order to be able to undertake the aviation course and flying lessons, he needs clearance which was previously refused because of the assault incidents.  The applicant agreed with the Tribunal that had the AVO of July 2018 incident occurred prior to the issuing of the aviation clearance, the Authority might not have issued the clearance.

26. There is no evidence before the Tribunal that the applicant had misled the Authority but that the AVO incident was subsequent to him obtaining clearance and on his own evidence, he might not have been able to obtain the clearance following the AVO.

27. The Tribunal has carefully considered the evidence before it and the Tribunal is satisfied that although the applicant came to Australia to study and the Tribunal has given weight in favour of the applicant, the Tribunal is not satisfied that the applicant has a compelling need to remain in Australia.

    ·the extent of compliance with visa conditions

28. There is no evidence before the Tribunal that the applicant has not complied with a visa condition and the Tribunal gives this aspect weight in the applicant’s favour.

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

29. In the course of the hearing, the Tribunal discussed with the applicant his current circumstances. The applicant gave evidence that he has no family in Australia and that his parents and siblings all live in PNG. He stated that he is not working and that his father supports him. He stated that he has not returned to his studies because he needs to apply for another college and needs to undertake further flying lessons.

30. The Tribunal acknowledges that the cancellation of the visa would mean that the applicant would not be able to continue his studies in Australia and that this would cause him a degree of financial, psychological and emotional hardship. The Tribunal has given favourable weight to those aspects.

31. The Tribunal is mindful that the cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 and consequently he would have limited options to apply for further visas in Australia.

32. However, those are due to intended consequences of the legislation and in the applicant’s case in the circumstances, any hardship would not mean that the visa should not be 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

33. The applicant’s visa was cancelled as a result of charges of common assault relating to domestic violence. He entered a guilty plea in relation to 2 charges and although he entered a plea of not guilty in relation to 2 others, those offences were proven and he received a good behaviour bond for 15 months.  He is currently the subject of another AVO relating to the same person. 

34. The Tribunal does not consider the charges to be beyond the applicant’s control. He has acknowledged that he loses his temper very quickly but the Tribunal does not consider this to be beyond his control. The applicant is an adult, responsible for his conduct.

35. The Tribunal considers the applicant’s offending to be serious and the Tribunal has given this aspect weight in deciding that the visa should be cancelled.

    ·past and present behaviour of the visa holder towards the department

36. The applicant has cooperated with the Department and the Tribunal has given this favourable weight.

    ·whether there would be consequential cancellations under s.140

37. There is no evidence before the Tribunal that there would be any consequential cancellations 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

38. As previously mentioned, the cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Act as well as Public Interest Criterion (PIC) 4013 and would consequently have limited options for applying for a visa.

39. However, those are due to intended consequences of the legislation and in the applicant’s case in the circumstances, do not mean that the visa should not be cancelled.

    ·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

40. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia’s breach of international obligations. The applicant does not have any children.

    ·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

41. The subclass 572 is not a permanent visa.

    ·any other relevant matters

42. There is no evidence before the Tribunal of any other relevant matters.

    Concluding remarks

43. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal is satisfied there are certain aspects in the applicant’s case that weigh in his favour, on balance however, the Tribunal is satisfied that the considerations weigh heavily against the applicant.

44. The Tribunal is satisfied that the ground for cancellation in s.116(1)(e) exists and having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled

    DECISION

45. The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

    Antoinette Younes

    
    Senior Member