Waipuka (Migration)

Waipuka (Migration) [2019] AATA 2391 (15 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Reina Mahuki Te Apatu Waipuka
[Name deleted]
[Name deleted]
CASE NUMBER:  1723143
HOME AFFAIRS REFERENCE(S):           PNJ
MEMBER:Michael Cooke
DATE:15 March 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 444 (Special Category) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 15 April 2019 at 4:22pm

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary)(Class TY) visa – Subclass 444 (Special Category) – risk to Australian community or individual – criminal charges – sexual abuse of minor children – no jurisdiction for other applicants – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 189, 348, 359A, 375A, 501
Migration Regulations 1994, Schedule 2
CASES
Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80

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

This is an application for review of a decision dated 8 September 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s (the applicant) Subclass 444 (Special Category) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(e) on the basis that ‘the presence of the visa holder in Australia 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’. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant.
The applicant appears to have mistakenly listed [named persons] on the Tribunal application form though there are no secondary applicants on the primary applicant's visa. Therefore, the tribunal finds that there is no reviewable decision for the Tribunal to review relating to them ([names deleted]).
The applicant appeared before the Tribunal on 1 February 2018 to give evidence and present arguments via video from Christmas Island.
The applicant was not represented in relation to the review. His migration agent had informed the Tribunal he no longer represented the applicant. The applicant had not formally withdrawn the appointment of his previous representative. Subsequently he advised in oral evidence that that his authorised recipient was no longer representing him (T1, f.52).
Initially a s.359A Invitation had been sent to the applicant’s authorised representative but it became apparent that as he had orally withdrawn the former authorised recipient from representing him at the hearing another s.359A Invitation was necessary.
Therefore, a repeat Invitation pursuant to s.359A of the Act was sent to the applicant on 4 April 2019 (T1, f.67):
I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a TY 444 visa.
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
·Information from Western Australian Compliance Courts Prisons indicates that you have now pleaded guilty to all five charges for which you were indicted.
This information is relevant to the review because during you hearing you indicated to the Tribunal that you were innocent of the charges and intended to fight the charges in Court.
If we rely on this information in making our decision, we may conclude that ‘your presence 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’.
This conclusion is further relevant as it could be a reason or part of the reason for affirming the decision to cancel your Subclass TY- 444 visa.
You are invited to give comments on or respond to the above information in writing.
The applicant did not response to the Invitation sent to him by the appropriate day (T1, f.70).
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
The Hearing
The Tribunal explained to the applicant that a person’s visa can be cancelled if criminal charges are made against them and such was what happened to him. He had been charged in Perth and had been moved to Christmas Island. However, he had a right of review to the Tribunal. The Tribunal asked the applicant if he had been to Court. He said he had many times but had not had his principal trial.
The Tribunal alerted the applicant to a s.375A Certificate located on the Department file. The Tribunal informed him it found it to be valid. The applicant asked the Tribunal what the Certificate meant.
The Tribunal explained that the Certificate elaborated material or information on the Department file that was contrary to the public interest to reveal. The Tribunal explained to the applicant that information in the Certificate was confidential for privacy reasons. It was related to information gathered during the processing of his matter. This information had been found by the Department to be significantly confidential. The disclosure could be contrary to the public interest. The Tribunal was not allowed to reveal the information which potentially could damage other parties or the Department or which could reveal the activities of persons. He had to be informed of this Certificate by law and that was why the Tribunal had done so now. Applicants could not see the confidential information for that reason because of the Certificate preventing same. The Tribunal added that it could not see much reason to utilise the information excluded by the Certificate in the decision.
The Tribunal asked the applicant some questions regarding information on his file. He confirmed that he went to Court in 2017. The applicant went to Rockingham Magistrates Court in July 2017. He had not yet been sent to trial. He was not sure of his trial date. He said he was not guilty.
The Tribunal asked the applicant whether he had signed a document allowing him to be removed to New Zealand. He said he had done so. He did not know if he was being sent to New Zealand until the Court case had completed. He had been forced to stay because of the Court matter and would not go back until it was resolved. He said he would do a video link for his Court appearance and would not return to Perth. If he was found guilty he would be imprisoned in Perth and then he would be relocated (pursuant to s.501 of the Act) to Christmas Island and then removed. If found guilty he would be removed after imprisonment on the mainland.
The Tribunal then explained to the applicant the nature of s.116 cancellations and that cancellations could be set aside or affirmed following a brand new review at the Tribunal. The Tribunal had certain Departmental information but also had its own discretion and needed to review his situation from a brand new direction. If the grounds were not present then the discretion was there to set aside the cancellation and to put his visa back. The alternative was to uphold or affirm the cancellation. The Tribunal had to re-examine the whole of his case including hardship circumstances.
The Tribunal then examined the applicant’s situation and observed that he had not breached any visa conditions. It then explored his history and work and family status. He informed that was a landscaper by profession.
The Tribunal observed that he had initially suggested he had no family in New Zealand. Having seen some names on the file the Tribunal asked the applicant about his New Zealand family. He indicated that (the named persons) were his step-family. He said he had lived together in Perth with his half-brother and did not contribute to his family as he had earlier stated. His only financial commitments were his phone and to a family charity.
The Tribunal noted that the applicant was worried that he would not have the opportunity to defend himself and prove his innocence. The Tribunal noted that he was getting that opportunity even from Christmas Island by audio visual link. He indicated in reply that any paperwork representing himself from Christmas Island was “too risky to be seen”. He stopped appealing because he realized that if people at Christmas Island saw his charges it would be difficult to hide them so he ‘threw away the paperwork’ requesting appeals.
When asked about his various charges he informed at first that it involved one child in the charges. The Tribunal observed from information on file where the charges referred to two children. When asked which answer was correct regarding whether the charges pertained to two children or to one - he said ‘he thought so’. He said he was questioned about two so he was ‘pretty sure’ it was about two.
The Tribunal noted that there was no evidence of adverse personal behaviour since he had been detained or towards the Department. There were no further cancellations which could be caused as a by-product of cancellation - such as to his parents.
The Tribunal referred to a possible outcome ensuing from cancellations such as PIC4013. He could be given a possible three year ban as a consequence of the Tribunal upholding the cancellation. As a New Zealander he could return to New Zealand. There was no indication of breach of obligations present under the relevant international agreements.
The Tribunal then revisited the applicant’s submission to the Department in response to the charges. The Tribunal read out his rebuttal of the principal accusations. In his submission he had insisted that as he was bailed these conditions prevented him from doing anything adverse.
The applicant in his submission to the delegate had said that the allegations against him had not been prosecuted. He would fight the allegations vigorously. He had a passive nature towards Australia and had a clean criminal record. He had been charged as an adult as soon as he had turned 18. He was always around people and near children and he worked privately and publicly as a landscaper. He lived with his father. He would not be able to offend for these reasons and he did not approach the family where he was accused of offending. The applicant replied with ‘yes’ in commenting on the points read out from the submission.
The Tribunal asked him when he was due to go to trial. He said the probability was June 2018.
The Tribunal asked the applicant would he like to make a personal statement.
He asked why his visa had been cancelled. The Tribunal said it was because the nature of his charges indicated he might pose a threat to Australia. He responded that he did not offend in the six months he had been at liberty on bail. The Tribunal asked him whether he was at home on bail in Perth. He said he was actually at home for six months and working normally. He was asked whether he had spoken to his parents regularly when detained. He responded that his mother was trying to help him but doing paperwork was dangerous when sent from Christmas Island. His representative (Mr Stokes) no longer represented him. He said he had not told the Tribunal formally. He agreed to inform the Tribunal. He said a Malcolm Ayoub represented him in the trial.
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(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?
Particulars of the ground for cancellation:
Section 116. Power to cancel
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she Is satisfied that:
(e) the presence of Its holder in Australia is or may be, or would or might be, a risk to:
(i) the health, safety or good order of the Australian community or a segment of the Australian community.
On 15 March 2017; the Western Australian Police charged the visa holder with the following:
·2 x Sexual Penetration of a Child under 13 years — s. 320(2) Criminal Code WA
·3 x Indecent Dealing of a Child under 13 years — s. 320(4) Criminal Code WA
·1 x Persistent Sexual conduct with Child Under 16 years — s. 321A(4) Criminal Code WA
Subsequently the Tribunal was informed that as at 1 March 2019 one charge of Sexual Penetration of a Child under 13 years had been dropped. The Tribunal understands the applicant is presently located in Casuarina Prison in Western Australia.
The initial Police Statement of Material Facts alleges the offences occurred at different times during the period 23 May 2012 to 1 August 2016 in relation to minor children entrusted to the visa holder's care.
The visa holder has subsequently pleaded guilty to five charges (T1, f.58).
s.116(1)(e) - risk to Australian community or individual
A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].
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.
The visa holder's response to the Notice Of Intention to Consider Cancelling (NOICC) letter included the following claims:
·The allegations have not been prosecuted and he intends to fight the case vigorously. He has a passive nature towards the Australian society and has never been charged before and has a clean criminal record.
·On 27 July 2017, the prosecution has to present at the Court the evidence they are relying on against him, the date of the first alleged act was on his 18th birthday. He is not sure why the prosecutors chose that exact date specifically, because any earlier would mean he would have been a minor.
·In relation to his risk of offending, he is always around people. At no time is he left alone with children. He lives with his parents. He works as a landscaper in a three man team, maintaining suburbs, parks, properties and land sales offices. His brother drives him to and from work. He is at home with his father.
·His bail conditions eliminate any possibility of him offending and he never leaves the house unless needed. He always has to be aware of the people around him, making sure he is not near the prosecuting family, airports or the workplaces and schools of that family.
The visa holder stated this was the first time he has been charged with criminal offences which he intended to defend and he has a clean criminal record.
At the hearing (which was held by audio visual means at Christmas Island) the visa holder insisted on his innocence and that he would fight the charges.
The Tribunal has considered the claims made by the applicant initially in oral evidence and to the Department. The information indicates the visa holder has been charged with offences relating to inflicting sexual, physical and psychological harm on minor children.
He insisted in oral evidence that he was innocent of the charges. The applicant had claimed separately to the delegate that he was not a risk to the community and to bolster his argument he raised the fact he was allowed bail and to work for six months in Perth whilst awaiting his Court outcome - without incident.
Subsequently the Tribunal became aware of reliable information from Western Australian Compliance Courts Prisons regarding the applicant and which indicates that he has pleaded guilty to five offences - elaborated in the Invitation pursuant to s.359A of the Act.
This fact has convinced the Tribunal that the applicant’s continued presence in Australia may pose a risk to the safety of a segment of the Australian community, namely minor children in the community where he lives or where may live in the future (T1, f.58).
DECISION WHETHER TO CANCEL
For these reasons, the Tribunal satisfied the ground for cancellation under subparagraph 116(1)(e)(i) of the Migration Act exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
Consideration of discretion
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
Consideration of any relevant factors, including matters raised by the applicant and the Departmental guidelines which cover matters such as:
·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
The purpose of the visa holder's initially was to travel to Australia. He last arrived in Australia on 12 August 2012 (on a Subclass 444 Special Category visa) which allowed him to work and study and stay indefinitely In Australia with his family.
The applicant argued that he had a compelling need to remain in Australia because of his family ties to Australia (his family in Perth) and his lack of family ties in New Zealand. Subsequently it has been disclosed that the applicant has step-family in New Zealand and he confirmed this in oral evidence.
The Tribunal gives this consideration some positive weight in the visa holder's favour.
·the extent of compliance with visa conditions
The visa holder did not have any conditions attached to his visa. The Tribunal gives this consideration no weight in the visa holder's favour.
·degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Departmental records show the visa holder first arrived in Australia on 13 May 2008, on a Subclass 444 Special Category visa. He was nearly 14 years old at the time. He has since stayed in Australia apart from four overseas trips which formed a total period of approximately nine months out of his lengthy stay in Australia since 2008.

The visa holder provided no supporting evidence in his response to the Department. He stated that his family was in Australia. He had been employed as a landscaper for the past two years in a job he wanted to keep. He claimed he had no employment prospects or immediate family in New Zealand to help him. He provided no details of the amount he contributes to his parents' household expenses or his own personal expenses.
Subsequently in oral evidence he has indicated he does not support his parents as he co-shared a house with his half-brother. He has indicated that he has family members in New Zealand - but they are step-family. His personal expenses are basically rent, utilities, his phone and a charity.
If his visa were cancelled, the visa holder will no longer hold a visa enabling him to continue to work and stay in Australia. The Tribunal accept this may cause him and his parents, financial and emotional hardship as it might result in the loss of his own employment and livelihood plus family care and companionship.
The visa holder at first expressed his 'sadness people think he is a risk to their safety’. However, he has pleaded guilty to five serious sexual offence charges for which he was indicted.
The cancellation of his visa would prevent him from staying In Australia long-term and being near his immediate family. He claimed he has no family support in New Zealand or immediate job prospects. This would be a significant potential hardship to him if the visa were cancelled.
The Tribunal give this consideration some positive weight in the visa holder's favour.
·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.
The circumstances in which the ground for cancellation arose were that the Department received information that the Western Australia Police had charged the visa holder with six alleged offences that involved sexual abuse of minor children. He was charged after turning 18. Subsequently on 1 March 2019 the visa holder plead guilty to a total of five sexual offences performed on a child under 16.There is no information before the Tribunal to indicate the offences which occurred during the period 23 May 2012 to 1 August 2016 resulted from any extenuating circumstances ‘beyond the visa holder's control’.
The Tribunal give this consideration maximum weight in favour of cancellation of the visa holder’s Subclass 444 visa.
·past and present behaviour of the visa holder towards the Department
There is no evidence before the Tribunal that the visa holder has been untruthful or uncooperative with the Department and he responded within the timeframe required by the NOICC.
The Tribunal gives this consideration some weight in favour of not cancelling his visa.
·whether there would be consequential cancellations under s.140
Not applicable.
·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
If the visa were cancelled under this ground the visa holder would be subject to the following mandatory legal consequences under the Migration Act:
·He would become an unlawful non-citizen and may be detained under section 189, and removed under section 189, if he were not granted another visa to remain in Australia and he does not voluntarily leave Australia.
·Section 48 of the Act would prevent him from making a valid application in relation to certain visas while he is in Australia and require him to leave Australia and apply overseas.
·He would incur the Public Interest Criterion 4013 which may be a reason for not granting him certain temporary visas for three years from the visa cancellation.
These are the intended legislative consequences for a visa cancelled under this ground. The Tribunal is satisfied indefinite detention is not a possible consequence for the visa holder if the visa were cancelled. The visa holder is a citizen of New Zealand with a valid passport and in the event he is sentenced to a term of imprisonment he would be able to leave Australia and return to New Zealand at the end of his prison term.
The Tribunal gives this consideration minimal weight in favour of not cancelling his visa.
·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
The Tribunal has made an assessment as to whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia's responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CROC), and the International Covenant on Civil and Political Rights (ICCPR).
There is no Information before the Tribunal to indicate Australia would be in breach of its international obligations to the visa holder including those obligations pursuant to any of these international agreements - were his visa to be cancelled.
The Tribunal gives this consideration neutral weight in exercising its discretion to cancel the visa.
·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
Not applicable
·any other relevant matters
The Tribunal has been informed that the applicant has pleaded guilty to 5 sexual offences performed on a minor. He is presently located in Casuarina Prison in Western Australia. The Tribunal is satisfied that the applicant has been involved in criminal behaviour of a sexual nature involving children.
The Tribunal gives these relevant matters maximum weight in favour of cancelling the applicant’s visa.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled
DECISION
The Tribunal affirms the decision to cancel the first named applicant’s Subclass 444 (Special Category) visa.
The Tribunal has no jurisdiction with respect to the other applicants.
Michael Cooke
Senior Member

[2019] AATA 2391

15 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Charge

Remedies