Watson (Migration)

[2018] AATA 4809

Watson (Migration) [2018] AATA 4809 (27 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Samuel Joseph Watson

CASE NUMBER:  1812701

HOME AFFAIRS REFERENCE(S):           BCC2018/729714

MEMBER:Ann Duffield

DATE:27 July 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 27 July 2018 at 11:48am

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 health or safety of an individual or individuals – Charged with criminal offences – Applicant’s family ties in Australia appear to be as equally strong as his ties to family in New Zealand – Grounds for cancellation exist – Decision affirmed

LEGISLATION
Migration Act 1958, ss 116, 140


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 12 April 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 found that the presence of the applicant in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals.

3. The applicant has been convicted of a number of assault and domestic violence offences and currently faces further charges relating to domestic violence and assault. The majority of these offences have occurred between himself and members of his family, particularly his brother and sister. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 24 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother. The applicant was not represented.

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

   BACKGROUND

6. The applicant is a citizen of New Zealand born on 24 July 1993. He settled in Australia in 2008 with his mother and siblings.

7. The applicant provided the Tribunal with a copy of the delegate’s decision along with his application for review. The applicant also provided a detailed statement to the Tribunal on around 30 April 2018. On 1 June 2018 the Tribunal also received a letter of support from the applicant’s mother.

8. The applicant was held in the Arthur Gorrie Correctional Centre from 30 January 2018 until 16 May 2018 when he was released on bail. The applicant told the Tribunal he was taken into immigration custody on Monday 16 August 2018 and is currently being held at the Brisbane Immigration Transit Accommodation.

9. On 22 June 2018 the Tribunal issued the Queensland Police Service with a summons to provide a Queensland “person history” for the applicant. This document contains all of the applicant’s past and present criminal charges and convictions. The Tribunal provided this document to the applicant informing him that depending upon his comments, the information contained in that document would be the reason or party of the reason for affirming the decision to cancel his visa. The Tribunal informed the applicant that it would discuss those matters with him during the scheduled hearing.

   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 has been convicted of the following offences:

    a.Assaults occasioning bodily harm on 14 October 2016 – 6 months imprisonment suspended for 2 years

    b.Contravention of domestic violence order on 3 March 2017 – conviction recorded, probation period of 15 months imposed.

    c.Breach of bail conditions on 9 October 2015 and 3 May 2015 – conviction recorded

    d.Breach of bail condition on 8 August 2016 – conviction recorded

    e.Assault occasioning bodily harm on January 2016 – conviction recorded 3 months imprisonment

    f.Wilful damage, domestic violence offence on 17 January 2016 – conviction recorded 6 months imprisonment

    g.Commit public nuisance on 24 January 2016 – conviction recorded

    h.Fail to appear in accordance with undertaking on 15 February 2016 – conviction recorded

    i.Contravention of domestic violence order (aggravated offence) on 25 November 2015 – conviction recorded

    j.Contravention of domestic violence order on 6 October 2015 – conviction recorded

    k.Common assault on 29 July 2013 – conviction recorded – sentenced 3 months imprisonment suspended for 12 months

    l.Commit public nuisance on 14 December 2013 – conviction recorded

    m.Failure to appear in accordance with undertaking on 3 December 2013 – conviction recorded

    n.Wilful damage to property without consent  19 July 2013

    o.Commit public nuisance and assault or obstruct police on 24 July 2011 – conviction recorded

14. The cumulative suspended convictions are for nine months. Those terms were all suspended.

15. The applicant has recently been charged with domestic violence against his sister on 30 January 2018. He was arrested and was remanded in custody for these offences at the Arthur Gorrie Correctional Centre. At the time of the application for review the matters had not been set down for a hearing.

16. In his response to the Notice of Intention to Consider Cancellation of his TY444 visa issued by the Department of Home Affairs, the applicant claimed that his visa should not be cancelled because the recent charges have not yet been heard and he is strongly defending them. He claims that the incident did not occur as reported.

17. The applicant also told the delegate that he received a 6 months suspended sentence for assault against his previous partner’s boyfriend, but he claims that he acted in self-defence.

18. The delegate also found that a number of other charges and convictions related to violent behaviour of the applicant against another person, including members of his family. The delegate found that the applicant’s offences were repetitive, serious and violent in nature and was satisfied that the visa holder’s presence in the community may pose a risk to the safety of individuals.

19. The delegate proceeded to cancel the applicant’s visa on 12 April 2018.

20. At the Tribunal hearing the applicant told the Tribunal that the current charges against him had been withdrawn. He provided a notification from the District Court of Queensland at Brisbane that the charges against him had been withdrawn resulting in a Nolle Prosequi on 16 July 2018.

21. The Tribunal has proceeded to consider whether the applicant’s previous offences constitute a ground for cancellation in the absence of the charges which resulted in his visa being considered for cancellation in the first place.

22. The Tribunal discussed with the applicant his long list of offences and the applicant told the Tribunal that he and his twin brother fought a great deal over the years. The Tribunal put to him that the fights must have been serious for his brother to want to proceed with charges against him and the issuance of a restraining order. The applicant claimed that their fights were not serious and did not result in any significant harm to either himself or his brother. The applicant told the Tribunal that his brother had his visa cancelled and he was removed from Australia earlier in the year for a conviction of armed robbery. The applicant said that it was best that they remained separated, although later in the discussion the applicant told the Tribunal that if he had to depart Australia he would stay with his brother.

23. The Tribunal notes that the applicant had not been incarcerated for any of his previous convictions but had received sentences totalling around 9 months, all of which were suspended. The applicant told the Tribunal that he was not given bail on the last charges because he was already on a suspended sentence.

24. The Tribunal put to the applicant that given his brother’s recent deportation from Australia he must have been aware of the consequences of his continued criminal behaviour. The applicant admitted that he did but he was in a “bad place” psychologically when his misconduct occurred.

25. The applicant and his mother told the Tribunal that the applicant had found it hard to get full time employment. He could not utilise the services of an employment agency because his status as a New Zealand citizen did not entitle him to Centrelink. He turned to alcohol and marijuana as a way of coping.  His mother has worked full time for the past nine years and has supported him for the best part of three of those years during which he was unemployed. She told the Tribunal that she did at times become resentful at having to support the applicant and there was frequently a lot of tension in the house. Asked if the applicant had been violent in any way towards her, the applicant’s mother said that sometimes they argued.

26. The Tribunal put to the applicant’s mother that it seemed that she would be better off financially and emotionally if the applicant was returned to New Zealand. She agreed that she may well be but even so would not be happy if the applicant was returned. She said that despite their arguments, he was a good boy and helped her around the house. She said that whilst he had been incarcerated he had become a changed person. She said that his alcohol and drug abuse had emaciated him and left him incoherent and he was in a deep depression most of the time. She told the Tribunal that he had gained weight since he was incarcerated, taken some advanced literacy courses as well as anger management and others. She said that he was now speaking in complete sentences and could organise his thoughts. She said that he was deeply remorseful for his past behaviour and had begun to understand and deal with why he behaved in those ways.

27. The Tribunal asked the applicant’s mother if she believed the applicant’s account of his altercation with his sister. She said that she believed that both were capable of violence towards each other though it was rarely significant. She said that her daughter (the applicant’s sister) was also abusing drugs and alcohol and frequently came to the house drunk and abusive. The applicant’s mother told the Tribunal that her daughter had moved out of their home some time ago and was living with her partner.

28. The Tribunal put to both the applicant and his mother that the circumstances of the applicant, if allowed to remain in Australia, would appear to be the same as those that existed prior to his incarceration in that he would be unemployed with few prospects. The Tribunal put to them that those circumstances may lead him to return to drugs and alcohol and hence more violence towards his family. The Tribunal put to them both that these circumstances gave rise to a concern in the Tribunals mind that the violence may escalate or involve others. The Tribunal put to the applicant that he may find himself in a worse position than he is now.

29. Both the applicant and his mother gave compelling evidence that the applicant had developed self-awareness into his behaviour and had made significant efforts to change. His involvement in activities to deal with his substance abuse and anger management supports that claim. The applicant has also told the Tribunal that he has a mental health plan to which he adheres and to which he is committed to persevering with if allowed to remain in Australia.

30. The Tribunal accepts that the applicant is both remorseful of his previous behaviour and has made attempts to reform. However given the repetitive and increasingly violent pattern of his behaviour over a number of years, plus the fact that he was aware that his continued misconduct would result in his visa being cancelled, the Tribunal is not satisfied that the applicant does not pose a risk to the Australian community or to individuals in the community.

31. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(ii) 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

32. 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’.

33. The Tribunal has he has a compelling need to travel to or remain in Australia. The applicant came to Australia to settle in 2008 with members of his family including his mother and siblings. His father, a brother and other extended relatives live in New Zealand and whilst not his preference, the applicant has told the Tribunal that he could receive assistance and support from these family members if he had to return. The applicant’s mother gave evidence that it was also her preference that the applicant remains in Australia even though she and the applicant had occasionally been at odds over his inability to get meaningful and full time employment.

34. The applicant does not have a partner or children in Australia. He does not have a full time job or a regular employer who would suffer hardship should he be returned to New Zealand.

35. The Tribunal does not give these circumstances any positive weight in favour of the applicant.

36. The Tribunal has considered the extent to which the applicant has complied with visa conditions and has found that this does not apply to a TY444 visa.

37. The Tribunal has considered the degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the applicant and/or his family members if he is removed from Australia.

38. As in paragraphs 32-34 above, the applicant has few meaningful connections in Australia and some close and extended family members in New Zealand. The Tribunal accepts that it is the preference of the applicant and his mother for the applicant to remain so that he has the best opportunity to fulfil his promise to reform his character and behaviour. However, the applicant and his mother have both given evidence that neither the applicant nor she would suffer any financial hardship if he were removed; indeed, the applicant’s mother would appear to be in a better financial position without the applicant. The applicant and his sister, his only other relative in Australia have a volatile relationship at best and do not currently have anything to do with each other. The Tribunal notes that order restraining the applicant from approaching his sister has ceased.

39. The Tribunal does not give these circumstances any positive weight in favour of the applicant.

40. The Tribunal has considered the circumstances in which ground of cancellation arose and notes that the applicant has been violent towards his family and others on several occasions and ignored orders of the courts. His violence appears to have escalated and whilst the Tribunal notes that the latest charges against him have not been pursued, his previous behaviour cannot be ignored. The Tribunal notes that he has expressed remorse and attempted to reform. However that change has only occurred over a period of several months and as a result of his forced incarceration.  The Tribunal is not satisfied that these changes are something to which the applicant would remain committed. As the Tribunal noted during the hearing, the applicant would be facing the same strains if he is released as he faced when he turned to alcohol and drugs; and that is unemployment, lack of access to services because of his status as a non-citizen, no money and a volatile relationship with his family members.

41. The Tribunal does not give these circumstances any positive weight in favour of the applicant.

42. The Tribunal has considered the past and present behaviour of the applicant towards the department and does not find any evidence that he has not been cooperative.

43. The Tribunal has considered that there are no consequential cancellations under s.140.

44. The Tribunal has considered 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.

45. The Tribunal put to the applicant that his opportunities of returning to Australia in the event that his visa was cancelled and he was deported would be significantly reduced. The applicant told the Tribunal that in the event his visa was cancelled he would depart Australia voluntarily. The Tribunal informed him that he may still face a bar to re-entry for some years.

46. The Tribunal has considered 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 and finds that there are no children associated with the applicant whose rights or interests would be breached.

47. The Tribunal has considered the extent of the applicant’s has strong family, business or other ties in Australia. As noted above, the applicant’s family ties in Australia appear to the Tribunal to be as equally strong as his ties to family in New Zealand. He is unemployed and has no partner or children in Australia to consider.

48. The Tribunal does not consider that there are any other relevant matters.

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

    DECISION

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

    Ann Duffield
    Senior Member