VAAFUSUAGA (Migration)

[2019] AATA 2422

VAAFUSUAGA (Migration) [2019] AATA 2422 (28 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jimmy Siagigi VAAFUSUAGA

CASE NUMBER:  1912037

HOME AFFAIRS REFERENCE(S):           BCC2018/5316977

MEMBER:Kira Raif

DATE:28 June 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 28 June 2019 at 7:23am

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – ground for cancellation – risk to safety of Australian community or individual – pending criminal charges – pleaded not guilty – robbery – aggravated enter dwelling – DNA found at location of alleged crime – pleaded guilty to wounding with intent – awaiting sentencing – grant of bail – consideration of discretion – grew up in Australia as a child – strong family connections in Australia – degree of hardship – immigration detention – inability to work – capacity to fund legal representation – provision of care and support to parents in Australia – emotional hardship – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116
Migration Regulations 1994 (Cth), r 2.43

CASES
Fu (Migration) [2018] AATA 732
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 14 May 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).

2. The applicant is a national of New Zealand, born in November 1997. He was last granted a Special Category Class TY visa on 22 March 2018. On 6 February 2019 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 14 May 2019. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 26 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s family members. 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 be set aside.

   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 Department received information that on 27 January 2019 the applicant was charged with the following offences by NSW Police:

   a.Robbery in company.

   b.Aggravated enter dwelling with intent to commit a serious indictable offence of knowing people there.

9. The applicant was due to appear at Mt Druitt Local Court in relation to these charges on 13 February 2019.

10. The primary decision record refers to the following information from NSW Police:

    a.On 27 January 2018 the applicant allegedly engaged in violent and threatening behaviour in the company of three males, against four victims who were unknown to him, and included an 11 year old child who witnessed the incident.

    b.The applicant and his accomplices allegedly entered the alleged victims’ premises by force, assaulted and threatened them and stole valuable items in their possession.

    c.It is alleged that one of the male victims was hit in the back of the head with a red vodka cruiser bottle and threatened with retaliation and death before the applicant and his accomplices left the premises.

    d.On 2 August 2018 the police obtained the visa applicant’s DNA by way of buccal swab for forensic analysis. Forensic analysis results indicated the visa applicant’s DNA profile matched the DNA profile obtained from the bottle and the crime scene, which confirmed he was present at the time of the offence.

    e.On 28 September 2018 the visa applicant was arrested and conveyed to a police station where he participated in an electronically recorded interview. During the interview, the visa applicant stated he did not know the alleged victim, denied attending their premises and all knowledge of the incident and provided vague answers when questioned about his accomplices and alibi at the time of the offence.

    f.The alleged victims live in fear of reprisal and some of the victims have been forced to relocate out of fear for their safety.

11. In July 2018 the applicant was charged by NSW Police with the following offences:

    a.Affray.

    b.Assault occasioning actual bodily harm in company of others.

    c.Wound person with intent to cause grievous bodily harm (GBH) (2 counts).

12. The applicant told the Tribunal that he pleaded guilty to wounding with intend to cause GBH and another charge of causing actual bodily harm on Form 3 and he is due for sentencing in October 2019. The applicant said that all the other charges relating to the same incident have been withdrawn. The robbery charge and aggravated enter dwelling charge remain outstanding and he pleaded not guilty to these charges. The trial is expected in 2020.

13. In his written response to the NOICC dated 20 February 2019 the applicant agrees that he has been charged with several offences but states that the delegate must consider the situation as it exists at the time of the cancellation decision and the mere existence of criminal charges does not by itself suffice to create the ground for cancellation. The applicant states that the presumption of innocence applies. The applicant states that there is no evidence that the police acted reasonably in charging the applicant, and many individuals who are charged have cases dismissed or found not guilty or there is a finding of wrongful arrest. In this case, the matter is at the very early stages of proceedings and the applicant pleaded not guilty. A statement from the applicant’s criminal lawyer, provided to the delegate, indicates that the case againsat the applicant is ‘purely circumstsantial and extremely weak’.

14. The applicant subsequently provided to the Tribunal a letter from his criminal lawyer stating the offence of ‘aggravated enter dwelling and robbery in company’ was listed for 21 June 2019 for mention. It is stated that the charges are denied and will be defended and the prosecution case is weak and the lawyer expressed belief that the charges will be dismissed and that the applicant will be acquitted. It is stated that the offence of ‘wound with intent to cause grievous bodily harm’ was listed for sentence, after a guilty plea, on 11 October 2019. It is stated that the offence of wounding with intent to cause grievous bodily harm, affray and assault occasioning actual bodily harm in company have been withdrawn. It is stated that the applicant has complied with bail conditions and that, because of his guilty plea to one charge, he is unlikely to receive a sentence of 12 months or more.

15. The Tribunal accepts the applicant’s submission that the charges on their own do not establish a ground for cancellation. The Tribunal also acknowledges that the presumption of innocence applies and that the matter is yet to be heard and determined through the criminal process. The Tribunal also acknowledges the applicant’s submission that he may have been charged ‘in error’ and accepts the possibility that he could be found not guilty of the charges. However, it is well established that a finding of guilt is not required to establish a ground for cancellation under s.116(1)(e). Thus, in Gong v MIBP [2016] FCCA 561, Smith J considered that as s.116(1)(e) is engaged where the Minister is satisfied that a visa holder’s presence ‘may be a risk’, it can arise on the possibility that some event occurred in the past. In this case, that possibility was supported by the laying of a number of charges against the visa holder. The court held, at [45], that there is no requirement that there be a determination of the guilt of a visa holder.

16. The applicant states that upon arrest, he was refused bail but he was granted bail in October 2018 following a contested hearing. The applicant argues that bail eliminates any risk to the community. The Tribunal notes, however, that the considerations for the grant of bail are quite different to those that arise under s.116(1)(e). The Tribunal notes that s.116(1)(e) is very broad in its application. A ground for cancellation is made out not only if it is determined that the applicant’s presence in Australia is a risk to others, but also if his presence ‘may’ or ‘might’ or ‘would’ be a risk to others. This provision offers, in the Tribunal’s view, a very low threshold for establishing a ground for cancellation.

17. The applicant states that he has been living in the community, working and supporting his family and has not been accused of any attempt to contact or associate with the alleged victim and co-accused. There has been no offending since the applicant was granted bail and no charges have been laid since July 2018 as since that time he has met all bail requirements and has not engaged in any adverse conduct. The Tribunal accepts that the applicant has not been charged with any offences since he was granted bail and nothing adverse is known about his behaviour. That in itself is not enough, in the Tribunal’s view, to negate the existence of risk, if such a risk was found to exist. What is relevant is the totality of the applicant’s behaviour and not only the applicant’s behaviour since the grant of bail.

18. The applicant’s criminal lawyer notes that the applicant has been granted bail in relation to the offence of ‘enter dwelling and robbery in company’ because of the weak prosecution case and delay in the proceedings and the magistrate indicated that the prosecution case is weak. It is stated that the alleged victims are not known to the applicant and they have changed address, which is not known to the applicant and therefore the risk to the alleged victims are nil and there is no risk to the community. The Tribunal does not accept that argument. If a person engages in violent and criminal conduct in relation to one victim and that victim is no longer available, the risk of such conduct being repeated in relation to others may still exist. The Tribunal does not consider that the fact that the alleged victims in this case have changed address is in itself sufficient to establish that the risk has been entirely removed.

19. The applicant argues that the bail conditions are enough to ameliorate any risk. The applicant states that he complied with bail conditions and has no knowledge of the alleged victims being scared of him. As noted above, the bail considerations are different to those that apply under s. 116(1)(e). As for the alleged victims, the Tribunal’s considerations extend beyond the applicant’s interactions with the alleged victims and whether his presence in Australia may pose harm to them. The Tribunal must also consider whether there is a risk of harm to others. That is, the fact that the alleged victims may not be scared of the applicant, even if that is the case, does not negate the possibility that the applicant may be a risk to others.

20. In his submission to the Tribunal of 24 June 2019 the applicant argues that the delegate‘s assessment of risk was erroneous. The applicant states that on 21 July 2018, on the date of the incident at the pub, he was arrested and cautioned and evidence shows that he required medical treatment for the injuries inflicted on him. After receiving treatment in hospital, he was arrested on 2 August 2018 and charged with the offences of ‘aggravated enter dwelling’ and ‘robbery in company’ following the provision of a DNA sample during his arrest. The applicant submits that the delegate had misconstrued the chronology of events and made findings not supported by the material.  The applicant submits that the delegate erred in finding that the July 2018 incident amount to the escalation of criminal conduct after being charged for the January offence and that error infected the decision.

21. The applicant states that he always acknowledged his involvement in the July 2018 fight that led to the wounding offence charges and he was in fact wounded and required medical care as a result of an assault on him and he did not instigate the incident. The applicant submits that his actual actions will be determined by the court during sentence in October 2019 and his criminal solicitor expressed an opinion that the applicant will not receive a sentence of 12 months and will not be subject to a mandatory cancellation. (The Tribunal notes that as the present cancellation does not engage s.501 of the Act, there is no significance to the sentence being of at least 12 months or a lesser duration.) The applicant states that the Police fact sheet does not constitute the finding of the court as to his conduct. The Tribunal accepts that it is so and does not base its decision on the fact sheet alone. The weight to be given to the information in the fact sheet is, however, a matter for the Tribunal.

22. The applicant refers to the Tribunal’s decision in Fu [2018] AATA 732. The Tribunal is mindful that the factual circumstances of that case were quite different to the present one and the Tribunal does not consider that decision to be binding, nor necessarily helpful in this case. The Tribunal must have regard to the applicant’s own circumstances and on the basis of the facts specific to the applicant determine whether the ground for cancellation exists.

23. The applicant states that he is not a risk and the attribution of responsibility to him for the January offence is a finding that he engaged in criminal conduct, which can only be made by the court. Again, and with respect, the Tribunal does not accept that argument because a finding that the applicant is or may be a risk to others does not in any way equate to a finding that the applicant engaged in criminal conduct or committed an offence.

24. The applicant told the Tribunal that he is not a threat to anyone. The applicant said that it has been almost two years since the incident happened and he has not done anything wrong in that time and has complied with his bail conditions. He continued to work and reported every day. The applicant states that he has learned from his mistake and is remorseful for his actions. The applicant states that he met with the people who were involved in the August incident to apologise to them.

25. The applicant told the Tribunal that he attends church regularly but has not participated in any rehabilitation programs or counselling. He states that his mind is clearer and he is regretful for his actions.

26. The applicant said that when the incident happened, he was in the company of friends but he has not had any contact with these friends since the incident. The bail does not allow such contact but he states that even without the bail conditions, he would not have contact with these friends.

27. The applicant said that he used to live with his parents prior to detention and would live with them again if released from detention. He was also working in a fencing company and the job is still available to him. He has six siblings and has a good relationship with his parents and siblings. The applicant’s brother gave oral evidence about the applicant’s good character and his support for the applicant.

28. Evidence before the Tribunal indicates that the applicant pleaded guilty to an offence of wounding with intent. The applicant’s evidence is that he was involved in a spontaneous fight (even though weapons were carried and used), that he did not start the fight and that he was also wounded in that fight and required medical treatment. The Tribunal acknowledges that evidence but finds that a guilty plea and a conviction are prima facie evidence of the offence being committed.

29. The Tribunal finds that the applicant engaged in conduct that involved violence towards others (even if it also involved violence towards himself). Although the applicant claims the fight was spontaneous, he also told the Tribunal that weapons (hammers) were used, which might suggest some degree of planning. The other charges also relate to very significant offences of aggravated break and enter involving violence. The Tribunal acknowledges that the applicant pleaded not guilty and denied having committed these offences, but the Tribunal is also mindful of the evidence that his DNA was found at the location of the alleged crime.

30. The applicant claims he has changed, has learned from his mistakes and is remorseful. He claims he has not committed any further offences, nor engaged in any adverse conduct, while in the community and complied with bail undertakings. The Tribunal acknowledges that there is no evidence of the applicant engaging in further criminal conduct but the Tribunal places weight on the fact that the applicant had not completed any rehabilitation programs and has not engaged in any professional programs that could help with his behaviour.

31. Overall, given the nature of the offence, and placing some weight on what the outstanding charges relate to, the Tribunal cannot be satisfied that the applicant’s conduct in the future would be different. The Tribunal notes the applicant’s evidence that he has not had any contact with those friends who participated in that conduct in the past, but the Tribunal is mindful of his evidence that this was, at least in part, due to bail conditions. Despite the applicant’s assurances, the Tribunal cannot be satisfied that the applicant will not make such contact in the future, once he is no longer subject to bail restrictions and, if such contact is made, that the applicant’s conduct will not be repeated. Similarly, while the Tribunal accepts that the applicant had complied with bail conditions and has not breached the law in any way since the incident in question, the Tribunal is mindful that such conduct may be due to the bail limitations, rather than the change in the applicant’s character.

1. Having regard to these circumstances, the Tribunal has formed the view that there is at least a possibility of the applicant engaging in criminal and anti-social behaviour in the future and that such behaviour may again involve violence. The Tribunal finds that the applicant’s presence in Australia may be a risk to the safety of the community or to the safety of an individual or individuals. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) exists.

2. 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

3. 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

4. The applicant states in his response to the NOICC that he came to Australia in 2010 when he was 12 years old and has lived in Australia since. He attended an Australian school and is part of the Australian community. The primary reason for his travel to and stay in Australia was to live and work with his family and his partner. He has grown up in Australia as a child and is seeking to be a productive and successful member of the Australian community.

5. In oral evidence the applicant told the Tribunal that he has all his family in Australia. His parents and siblings are in Australia and he has no family in New Zealand. He has a cousin in Samoa but does not communicate with him. His partner also lives in Australia. The Tribunal accepts that the applicant has strong family connections in Australia and such connections are stronger than his connections to any other country.  The Tribunal also accepts that the applicant is fulfilling the purpose of his travel to and stay in Australia.

   The extent of compliance with visa conditions

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

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

7. With respect to hardship, the applicant states in his submission to the delegate that the cancellation of the visa would cause extreme financial and emotional hardship to him and his family.

8. The applicant states that the cancellation of his visa would lead to detention and cause extreme financial hardship to his family and his partner, as well as emotional hardship to himself and his family. The Tribunal accepts that if the visa is cancelled, the applicant may not able to maintain his employment in Australia and, unless he is granted another visa, he may be required to leave Australia. The applicant has not satisfied the Tribunal that he would be unable to find employment in New Zealand and provide financial support to his partner and family, if such support is needed.  The applicant also refers to emotional hardship to the family and the Tribunal accepts that such hardship may arise.

9. The applicant states that he is not an Australian citizen and does not have an unconditional entitlement to legal aid. It is stated that he is funding his legal fees with the support of his family and partner and the cancellation of the visa may cause the loss of his income and affect his ability to obtain legal representation. The Tribunal does not accept that argument. Firstly, the applicant has not presented evidence concerning his entitlement to Legal Aid or other pro bono representation. Secondly, the applicant has not presented probative evidence that his family or his partner would be unable to continue to fund his legal representation.

10. The applicant states that the decision to cancel he visa would cause him to forfeit his freedom for a period exceeding 12 months, which will cause exceptional hardship, particularly if he is found not guilty or if he is not required to spend time in custody. The Tribunal acknowledges that if the applicant’s visa is cancelled, and unless he is granted a bridging visa or another visa, the applicant may be detained.

11. The applicant’s criminal lawyer states in the statement to the Tribunal that the applicant is employed and is a productive member of society. His detention would render him unable to finance his legal fees and he may potentially become unrepresented. He is unable to receive expert treatment in detention and unable to efficiently instruct his lawyers and gather exculpatory evidence or subjective material, which are his basic legal entitlements. The Tribunal does not accept that evidence. There is little probative evidence before the Tribunal as to what treatment the applicant is unable to receive while in detention that he would have otherwise sought, and why such treatment would not be available to him in detention. There is no supporting evidence that the applicant will be unable to finance his defence if he is detained and not permitted to work as the applicant has not presented evidence as to whether he is able to obtain financial support from other sources, such as family or friends or other organisations. The Tribunal does not accept that as a result of his detention, the applicant will be unable to gather evidence and the Tribunal is mindful that in criminal matters, it is not unusual for the accused to be in detention and the Tribunal is not satisfied that in the applicant’s case, it would affect his capacity to defend himself in court.

12. The applicant provided to the Tribunal evidence of his employment prior to detention and states that his employer is willing to have him back. The Tribunal accepts that if the applicant remains in detention, he would be unable to engage in employment and the Tribunal acknowledges that this may cause some degree of hardship to the applicant and his employer.

13. The applicant claims that if he is required to remain in Australia to await the criminal trial, such detention may be lengthy and the Tribunal accepts that a lengthy period of detention may cause hardship to the applicant.

14. The applicant states that his ongoing detention has caused ‘devastating financial and emotional hardship’ to his family, himself and his partner. The applicant states that if he is not released from detention, he cannot fund his defence for the pending charges subject to a hearing in 2020. There is little documentary evidence before the Tribunal concerning the applicant’s financial circumstances, for example, bank statements showing any savings, there is no evidence of any funds that may be available to the applicant from family or friends, or whether there are other sources of funds that may be available to him. There is also no evidence as to whether the applicant may be eligible for Legal Aid representation in relation to his criminal case. The Tribunal is not prepared to accept the applicant’s claim that his ongoing detention would result in him not being able to fund his defence, although the Tribunal accepts that if the applicant does not work, he will have limited or no income and that may cause financial hardship.

15. The applicant provided to the Tribunal medical reports relating to his parents. These indicate that the applicant helps care for his parents. Dr Lee states in the report dated 22 May 2019 that he is ‘worried that if [the applicant] is not present, Mr Fiaalii Vaafusuaga’s condition will worsen’. The Tribunal acknowledges that evidence, although it is not clear from that report to what extent Dr Lee is familiar with the family’s circumstances and whether alternative care arrangements have been explored or discussed. Dr Huang also states in relation to the applicant’s mother that she would benefit from family members looking after her health. There is no specific reference to the applicant performing that duty. The Tribunal considers these reports inadequate but the Tribunal is prepared to accept that the applicant may provide some care and support to his parents, which would be unavailable if the applicant were to leave Australia. The Tribunal accepts that if this were to happen, it may cause hardship to the applicant’s family.

16. The applicant told the Tribunal that prior to his detention, he worked from 6 am to 5 pm, five days a week and half a day on Saturday. In the Tribunal’s view, that would not have left the applicant with much time to provide care to his family and the applicant agreed that he shared these responsibilities with his brother. The Tribunal is prepared to accept that the applicant did provide care and support to his parents and sister but the Tribunal has formed the view that such support may also be available from other sources.

17. The applicant states that if his visa is cancelled, he will remain in detention until 2020, which is a substantial period prior to the determination of guilt and reversal of the grant of the bail. The Tribunal does not consider that the cancellation of the visa is a ‘reversal of the grant of the bail’. The two processes are entirely independent and if the visa is cancelled, the decision made under the Act would be the result of a finding that there are grounds for cancelling the visa and that the discretion should be exercised to cancel the visa. It is not in any way a reflection on the applicant’s guilt or innocence in relation to the criminal charges and does not in any way affect his bail. As noted above, the Tribunal accepts that if the visa remains cancelled, and if the applicant is not granted another visa or removed from Australia, he may remain in detention for a lengthy period and the Tribunal accepts that this may cause considerable hardship to the applicant.

18. In oral evidence, the applicant told the Tribunal that when he was working, he had provided financial support to the family. One of his brothers also supports the family financially but other siblings have study or family commitments. The applicant states that it has been hard for the family since he has not been able to work.

19. The applicant states that his sister has a heart condition and he would help his sister and remind her to take medication. However, the Tribunal is mindful of the applicant’s evidence that five of his siblings live at home with their parents. While the applicant states that they have other responsibilities, the Tribunal is not satisfied that the requisite assistance cannot be provided to his sister by other members of the household.

20. The Tribunal took oral evidence from the applicant’s father. He said that he misses his son, who was the primary caregiver for him. Mr Vaafusuaga referred to his deteriorating health and said that the applicant used to help him with hygiene and around the house. He stated how much he misses his son. He said that while the applicant has been in detention his wife and daughters have been providing help to him but he feels it is inappropriate for them to care for him and he believes it is better for his son to provide the care. Mr Vaafusuaga said that he feels the separation from his son is affecting his health. His court hearing is in October and he wants to spend this time to encourage his son and help him get away from what has happened in the past. Mr Vaafusuaga said that his son’s future is in Australia and he has nobody overseas.

21. The applicant’s mother gave oral evidence to the Tribunal. She spoke of her desire to spend time with her son and to encourage him and support him. She hopes that her son would change, if he has strong family support and states that her son’s future is in Australia. He feels very remorseful about what happened but she hopes that they can be with their son and encourage him and move forward.

22. The Tribunal took oral evidence from the applicant’s eldest brother. He said that when the applicant was growing up, there was no bad behaviour from him. They were brought up with good morals and he believes his brother to be a good person. He referred to the applicant’s employment, stating that he has been a big loss to the company. They believe the applicant deserves another chance and he does not see his brother to be a threat to the community. Since the crime, he has complied with bail conditions and has done all that was required of him. He had taken a wrong turn as a teenager but he has learned from his mistakes. Mr Sopaga states that the applicant’s absence has affected the whole family

23. The Tribunal accepts that the applicant has strong family connections in Australia and that considerable hardship, including emotional hardship, would be caused to the applicant, his family and his partner if the applicant was required to leave Australia as a result of his visa being cancelled.

    Circumstances in which ground of cancellation arose

24. The applicant states in his submission to the delegate that he has been found not guilty and has not been required to enter a plea. The applicant presented a statement from his criminal lawyer who said that the alleged offences occurred in circumstances where there is no judicially tested direct evidence with respect to the DNA and the July 2018 offences are charges that involve alleged conduct by others. It is stated that alleged facts do not place the applicant as part of a criminal gang and the untested view of the police is that the applicant was present when the offences occurred.

25. The Tribunal acknowledges that at present, the charge of break and enter has not been proven and the applicant is defending that charge. He pleaded guilty to another offence.

26. In relation to the incident, the applicant states that he was involved in a fight and was injured. He was taken to hospital to get stitches to his lip and treat the injury to his head. The applicant said that the fight was started by another person but he also engaged in it and also hit another person. The applicant said that there were weapons used in the fight but he did not have any weapons. As noted above, whatever the circumstances of the fight, the Tribunal considers the offence proven.

    Past and present behaviour of the visa holder towards the Department

27. Nothing adverse is known about the applicant’s past and present behaviour towards the Department. The applicant states in his submission to the delegate that he has not sought to hide, obfuscate or hinder the actions of the Department, which shows that he is not a threat to the community and will not act to deceive the Department. It is unclear to the Tribunal how the applicant’s actions in relation to the Department, in particular, his failure to obfuscate, establish that he is not a risk to the community.

    Whether there would be consequential cancellations under s.140

28. There are no persons who would be affected by mandatory cancellation under s.140.

    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

29. 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

30. In his submission to the delegate the applicant claims that it would be unfair and potentially unlawful if the court process is truncated by the ‘uncontested’ decision-making by the Department and the applicant is unfairly punished and detained. The Tribunal notes that should the applicant be unsuccessful in this process, he has the opportunity to seek judicial review in relation to the cancellation of the visa that would ensure that the decision is lawful.

31. The applicant refers to the International Covenant on Civil and Political Rights (ICCPR) and the presumption of innocence and a right to a fair trial. The applicant states that the cancellation of the visa would usurp the powers of the Australian courts and second-guess the decision of the court granting bail to the applicant. The applicant states that the cancellation of the visa would result in him being treated unequally and would be in breach of the ICCPR. These issues have been addressed above. As noted in Gong, a finding of guilt is not required for the cancellation power to be established and a cancellation of the visa on this basis does not interfere with the presumption of innocence. The Tribunal does not accept that the cancellation of the visa would affect the ability of the applicant to have a fair trial. The Tribunal does not accept that the trial would in any way be affected by the applicant’s visa status. 

32. The applicant told the Tribunal that there are no children affected by the cancellation. The applicant does not suggest that Australia’s protection obligations arise in this case.

    Any other relevant matters

33. The applicant told the Tribunal that he is a better person and he has learned a lot by going through the process. It has been difficult for him and his family but his family support him because they know he is a better person. The applicant states that he is remorseful and sorry for what he has done.

34. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant’s presence in Australia may be a risk to the safety of others and that there are grounds for cancelling his visa. The Tribunal has found that the applicant has engaged in conduct that involved violence towards others and has been charged with a very serious offence which also involves a significant degree of violence, although the applicant denies any participation in the offence. In the Tribunal’s view, the circumstances in which the ground for cancellation arises form a strong reason why the visa should be cancelled.

35. However, the Tribunal has given consideration to other factors. The Tribunal acknowledges that the applicant has been living in Australia since a young age and has spent his formative years in this country. His entire family lives in Australia and the Tribunal accepts that he has a close relationship with his parents and siblings. The Tribunal is prepared to accept that he applicant had some caregiving responsibilities towards his father, although in the Tribunal’s view, the applicant’s evidence had been exaggerated. Nevertheless, the Tribunal accepts that the applicant provided support to his parents and siblings and acknowledges the medical evidence relating to his parents, in particular, the opinion of the doctor that the father’s heath may be adversely affected by his separation from the applicant. The Tribunal also accepts that the applicant is presently in a relationship with an Australian citizen. Overall, the Tribunal accepts that considerable hardship would be caused to the applicant and his family in Australia if the applicant was required to leave the country. The Tribunal also accepts that as the applicant’s trial is not due to start until 2020, there is a real possibility that the applicant will remain in detention for a lengthy period if his visa is cancelled and that would also cause considerable hardship to the applicant and his family.

1. The Tribunal places weight on the fact that the applicant’s conviction relates to a single incident when he was involved in a fight, while the second, more serious, charge remains undetermined. Should the applicant be found guilty of the aggravated break and enter offence, commit any other crimes or engage in other anti-social behaviour, consideration can again be given to the cancellation of his visa in the future.

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

   DECISION

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

   Kira Raif
   Senior Member