Vaaulu (Migration)

[2018] AATA 5453

Vaaulu (Migration) [2018] AATA 5453 (16 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Peni Vaaulu

CASE NUMBER:  1823953

HOME AFFAIRS REFERENCE(S):           BCC2018/986362

MEMBER:Ann Duffield

DATE:16 October 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 16 October 2018 at 12:18pm

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) – Subclass 444 visa – Whether the applicant is or may be, or would or might be, a risk to the safety of an Australian community or a segment of the community – applicant does not have a violent history – incident was an aberration and one off – Decision under review set aside

LEGISLATION
Migration Act 1958, 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 7 August 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 delegate cancelled the visa under s.116(1)(e)(ii) on the basis that the delegate formed a view that the applicant may or might be, or would or could be a risk to the health, safety or good order of the Australian community or a segment of the Australian community, or to 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 16 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife and sister in law.

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

   BACKGROUND

5. Dthe applicant provided the Tribunal with a copy of the delegate’s decision along with his application for review. The applicant is a citizen of New Zealand born on 25 June 19723 in Samoa. He is 46 years old.

6. The applicant and his immediate family arrived in Australia in June 2013, following his parents and other siblings who had arrived some 20 years earlier. The applicant and his wife have two children together and la elder son of the applicant’s wife. They are aged between six and seventeen years. The applicant’s parents, aunties, uncles, cousins and friends all reside in Brisbane.

7. The applicant was convicted of the following offences committed on 7 May 2017l.

   a.Enter dwelling with intent at night uses/threatens violence;

   b.Assaults occasioning bodily harm – domestic violence offence

   c.Common assault

   d.Wilful damage

   e.Dangerous operation of a vehicle

8. The applicant was sentenced to a period of 18 months imprisonment for those offences. The sentence was suspended for four years on all charges.

9. These are the applicant’s first and only offences and convictions. The victim in these matters was the applicant’s wife.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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)(ii). 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?

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

11. 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].

12. 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.

13. The applicant and his wife, along with his sister in law attended the Tribunal hearing. Their evidence was consistent and compelling and for the following reasons the Tribunal is of the view that grounds for cancellation have not been made out.

14. The account given by both parties at the hearing of the incident in question was consistent with the police report and the applicant’s written submissions.

15. The applicant had discovered that his wife had left a party which they jointly attended and was concerned for her welfare as she was severely intoxicated. He discovered that she had gone to the apartment of a man who was known to them both and who lived close by. The attended that man’s address on foot and confronted him and his wife, who was asleep on the couch at the time. There was a lot of pushing and shoving and the applicant, in a distressed state grabbed his wife off the couch and hit her with an open hand. The flatmate of the man then called the police who attended the house after the applicant had departed.

16. About a week after the incident the applicant discovered that he had been sought by the police so he attended the police station voluntarily to talk to them.

17. At no point has the applicant’s wife, or any other individual, ever had the need to report the applicant to the police for violent or aggressive behaviour. The applicant’s wife told the Tribunal that the applicant was the kindest and most decent man she had ever met and the other man involved in the incident was “nothing but trouble”. She said that they had talked through the matter several times and at no point has she, or does she, have any concerns about the applicant’s behaviour towards her or the children. She said, and witness statements have confirmed that the applicant is not a violent man. She said she felt responsible for what happened that evening and was extremely remorseful for her behaviour.

18. The parties told the Tribunal that they had discussed what had happened with the elder son and the younger boys, although not in detail. The applicant said that he had taken some courses whilst in detention, including anger management, and found them useful.

19. The Tribunal accepts the applicant’s and his witnesses’ evidence as truthful. The Tribunal has formed a view that the incident itself was the result of a high tension situation. The Tribunal notes that neither of the two victims reported the applicant to the police or had thought to do so. Neither of the victims required medical attention. The Tribunal also notes that the applicant was not required to serve a prison sentence for the offences with which he was convicted.

20. The Tribunal takes domestic violence seriously and does not believe that there are any circumstances that warrant violence towards a woman, in particular. Both parties admit that they were significantly intoxicated and that their mutual behaviour was an aberration and decidedly out of character.

21. The Tribunal accepts that the applicant does not have a violent history and the incident was an aberration and one off. The circumstances surrounding the incident are unlikely to be replicated and the parties appear to be in a loving and supportive relationship, raising a family of three boys.

22. The applicant’s wife is employed as cabin staff with an airline and the applicant has a job to return to once he is released from detention. The applicant has provided the Tribunal with a copy of a letter from his employer confirming his re-employment. The applicant also provided the Tribunal with a number of character references attesting to the applicant’s good character. The Tribunal accepts these.

23. The Tribunal does not believe that the intention of the cancellation provisions under s.116 in the Migration Act was intended to be applied in the circumstances of the present case. In the Tribunal’s mind they are not enlivened at this time.

    CONCLUSION

24. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(ii) exist. It follows that the power to cancel the applicant’s visa does not arise

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

    Ann Duffield
    Senior Member