Wirangi-Hardiman (Migration)

[2021] AATA 1177

Wirangi-Hardiman (Migration) [2021] AATA 1177 (25 January 2021)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Te Ahu Karamu Hoani Ihimaira Anthony William Saiin Wirangi-Hardiman

CASE NUMBER:  2000836

HOME AFFAIRS REFERENCE(S):          BCC2018/4074124

MEMBER:  Kira Raif

DATE:  25 January 2021

PLACE OF DECISION:  Sydney

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

Statement made on 25 January 2021 at 3:48pm

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) – Subclass 444 visa – applicant’s presence in Australia is or may be a risk to the safety of the Australian community –criminal convictions – applicant has a young child – factors in favour of cancelling the applicant’s visa outweigh those factors to the contrary– decision under review affirmed

LEGISLATION
Migration Act 1958, s 116

CASES
Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80
Wan v MIMA (2001) 107 FCR 133

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 2 January 2020 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).

1. In June 2019 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC, the Notice) because the delegate formed the view that on the basis that the applicant’s presence in Australia may be a risk to others, for the purpose of s.116(1)(e). it is stated in the decision record that the applicant did not respond to the NOICC and his visa was cancelled in January 2020. The applicant seeks review of the delegate’s decision.

1. The applicant appeared before the Tribunal on 25 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s father and a family friend Ms Burton. 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 affirmed.

Relevant law

1. 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. under 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.

1. 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].

1. 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?

1. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the Department received advice from Queensland Police Service that the applicant had been convicted of several offences at Southport Children’s Court, as set out below

Date of conviction	Date of offence	Offence	Order / comment
27/01/16	30/12/15	stealing	No conviction recorded

22/06/16	11/06/16 04/04/16 30/04/16 24/4/16 – 27/4/16 02/06/16 26/04/16 15/06/16	·     Enter dwelling with intent by break in company ·     Enter promises and commit indictable offence ·     Unlawful use of motor vehicle ·     Unlawful use of motor vehicle ·     Burglary and commit indictable offence ·     Burglary and commit indictable offence ·     Wilful damage of police property	On all charges: no conviction recorded. Probation period 9 months
07/09/16	03/08/16 15/11/16	·     Burglary and commit indictable offence ·     Burglary and commit indictable offence	On all charges with traffic matters no conviction recorded Probation period 10 months
08/03/17	17/11/16 15/11/16 18//11/16 07/09/16 31/10/16 22/06/16	·     Burglary and commit indictable offence ·     Burglary and commit indictable offence ·     Possess utensils or pipes etc for use ·     Issue of warrant for child in particular circumstances – contravention of a supervised released order ·     Burglary and commit indictable offence ·     Breach of probation order (x 2)	As a result of reopening of sentence – on all charges no conviction recorded. Sentence to detention period 6 months. Cumulative declare that time spent in pre- sentence detention be deemed as time already served under this sentence: 110 days.
17/03/17	Reopening of sentence imposed on 8/3/17. In all charges no conviction record. Sentence to detention period 3 months cumulative. To be served by way of a conditional release order
05/02/18	15/05/17 31/5/17–3/6/17 15/05/17 02/06/17 23/02/18	·    Unlawful possession of suspected stolen property ·     Receiving tainted property (x2) ·    Failure to appear in accordance with undertaking (x2) ·    Unlawful possession of suspected stolen property ·    Unauthorised dealing with shop goods	On all charges with other matters dealt on this date, no conviction recorded. Sentenced to detention period 2 months concurrent.
08/03/18	01/05/17	Unlawful use of motor vehicle	In all charged dealt with on this date, no

conviction recorded. Sentenced to detention period 2 months.
18/07/18	03/04/18 19/07/16	·     Unlawful use of motor vehicle ·    Burglary and commit indictable offence ·     Receiving tainted property ·    Burglary and commit indictable offence ·     Unlawful use of motor vehicle ·    Burglary and commit indictable offence (x 2) ·     Receiving tainted property ·    Attempted fraud – dishonest application of property of another	on all charges no conviction recorded.
18/7/16-	Sentenced to detention
22/7/16	period 4 months
12/5/17
17/3/18
20/03/18
2/4/18 – 5/4/18
3/4/18
21/3/18 4/11/18	·     Unlawful use of motor vehicle ·     Possession of a knife in a public place or school ·     Failure to appear in accordance with undertaking	On all charges, no conviction recorded. Good behaviour bond period 6 months

1. Further, the primary decision record indicates that the applicant has been charged with the following offences in Southport Children’s Court:

Date of conviction	Date of offence	Offence
19/07/17	28/05/17	Attempted Robbery – use / threaten violence
18/03/19	22/12/18	·     Burglary and Commit indictable offence Receiving tainted property ·     Serious assault police officer ·     Dangerous operation of a vehicle ·     Unlawful use of a motor vehicle
08/08/19	06/04/19	·     Assaults occasioning bodily harm while armed / in company ·     Stealing ·     Possessing dangerous drugs
10/04/19	09/04/19	·     Unlawful use of motor vehicles ·     Enter premises and commit indictable offence
27/05/17	Attempted robbery – use / threaten violence
18/03/19	27/11/17	·     Enter dwelling with intent by break
·     Deprivation of liberty – unlawfully detain / confine
·     Robbery armed / in company / wounded / used personal
Between 16/11/18 and	violence ·     Unlawful use of motor vehicle
2/12/18
Between 25/11/18 and	·     Unlawful use of motor vehicle
28/11/18

1. The primary decision record indicates that after the NOICC was issued, the applicant had been found guilty of the above offences:

a.Burglary and commit indictable offence

b.Receiving tainted property

c.Serious assault police officer

d.Dangerous operation of a vehicle

e.Unlawful use of motor vehicle

f.Assault occasioning bodily harm whilst armed / in company

g.Stealing

h.Possessing dangerous drugs.

The charge of burglary and commit indictable offence (on 22 December 2018) has been discontinued.

1. The primary decision record sets out the following allegations in relation to the applicant’s conduct.

   ·On 27 November 2018 the applicant entered rental accommodation where a 14 year old child was present. It is stated that the applicant produced a machete while his co-offender produced a knife and threatened to kill the child. It is alleged that the applicant and his co-offender stole a number of items.

·On 22 December 2018 the applicant entered a dwelling, obtained the keys from a car and drove the car away with his co-offender. The car was located on the following day and was approached by a police officer. It is stated that the applicant drove the car away while the police officer was still holding to him and the officer was dragged along the vehicle.

·On 6 April 2019 it is alleged that the applicant and his co-offender started a verbal argument with another person. The applicant’s co-offender punched the victim and the applicant also punched the victim and continued to kick him after he fell on the ground.

·On 9 April 2019 it is alleged that the applicant was involved in a theft of a car from an elderly victim’s home. It is alleged that the CCTV shows the applicant leaving the car.

1. In oral evidence the applicant confirmed the convictions stated above although he claims he is not sure about some of the conduct described above. The applicant told the Tribunal that he has now changed and the cancellation of his visa has ‘woken him up’. However, the applicant also told the Tribunal that since late 2019 or early 2020 he has been charged with other offences including arson and assault but he is defending these charges. The applicant notes that it has been about a year since he has been released from jail and he has not re- offended since that time. The applicant states that the conduct leading to most recent charges occurred prior to his detention. It was his first time in an adult jail and it had given him a chance to think. The applicant states that when he was younger, he thought he could do anything but now he wants to support his family as he has a three months old son. The

Tribunal acknowledges that evidence but notes, however, that some of the charges are very recent. On the applicant’s own evidence, the most recent charges were laid in late 2019 or early 2020, after his release from jail.

1. The applicant told the Tribunal that he has been involved in rehabilitation by attending counselling sessions. He states he saw a psychologist twice and he is waiting for a rehabilitation program to start and he also saw another local psychologist a couple of times. The applicant states that he no longer uses drugs. There is no evidence before the Tribunal to show that he has participated in any drug or alcohol rehabilitation programs. The Tribunal does not consider the few sessions with psychologists to be sufficient to evidence the applicant’s change of attitude or his desire to alter his behaviour, given the extent of his past offending. Further, the Tribunal does not consider that sufficient time has passed since the most recent offending to determine that the applicant will not engage in similar conduct in the future.

1. The Tribunal finds that the applicant had engaged in criminal and anti-social conduct over a period of time. Despite multiple convictions resulting in detention, the applicant has not changed his conduct in the past and the Tribunal is not satisfied that his detention in an adult facility would be any different. The Tribunal acknowledges the applicant’s evidence that the birth of his son has changed him but there is little evidence, so soon after the most recent offending, to satisfy the Tribunal that this is the case. Essentially, the Tribunal is not satisfied that the applicant has rehabilitated, changed his environment and his conduct and the Tribunal considers there is a real risk that the applicant will again engage in criminal or anti- social behaviour in the future. As the Tribunal considers there is a real risk of re-offending, the Tribunal finds that the applicant’s presence in Australia may be a risk safety of the Australian community.

1. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

Consideration of discretion

1. 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’.

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

1. The applicant told the Tribunal that he came to Australia with his family at the age of 7. Since that time he had lived in New Zealand for four months with his aunt but otherwise he has lived in Australia. The Tribunal accept that the applicant fulfils the purpose of his visa by staying with his family in Australia.

1. The applicant told the Tribunal that he has a three months old child and he sees the child regularly. The Tribunal accepts that the presence of a child in Australia may constitute a compelling need for the applicant to remain in Australia.

The extent of compliance with visa conditions

1. There is no evidence of any non-compliance with visa conditions.

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

1. The applicant told the Tribunal that the cancellation of the visa has been ‘mentally wrecking’ as it stopped him from making a change. The applicant states that he has not lived in New Zealand for a very long time and he does not want to go back to New Zealand. The applicant states that it would affect him mentally if the visa is cancelled as he does not know anything there and his life is in Australia. The applicant told the Tribunal that he has family in New Zealand with whom he will be able to live and he had previously lived with an aunt for four months.

1. Given the length of time the applicant has lived in Australia and the presence of his immediate family and a child in this country, the Tribunal accepts that considerable hardship would be caused to the applicant and his family if the visa is cancelled.

Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

1. The grounds for cancellation arise because the Tribunal has formed the view that the applicant’s presence in Australia is or may be a risk to the safety of the Australian community.

1. The Tribunal has considered the particular circumstances of the offending, as set out in the primary decision record. The Tribunal places weight on the fact that several of the convictions involve violence and threats of violence towards others. There are also convictions relating to the fraud / dishonesty, burglary and handling of stolen goods. The applicant told the Tribunal that he is not a violent person generally ad even though he has been charged or convicted, ’it has not been like that’. The Tribunal does not accept that argument because the Tribunal is of the view that a conviction can be taken as evidence that the offensive conduct had taken place.

Past and present behaviour of the visa holder towards the department

1. Nothing adverse is known about the applicant’s behaviour towards the Department.

Whether there would be consequential cancellations under s.140

1. There are no persons in Australia whose visas will be subject to cancellation under s.140.

Whether there are mandatory legal consequences

1. 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 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, although there are very limited options for the applicant to seek a visa in Australia. The Tribunal accepts that in relation to some visa categories, the applicant may be subject to an exclusion period if he was to make an application offshore. There may also be limitations on a future Special Category visa applications if the applicant is removed from Australia.

Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

1. There is no evidence, and the applicant does not claim, that he would be subjected to any form of harm or persecution if returned to New Zealand. The Tribunal does not consider that Australia’s non-refoulement obligations arise in this case.

1. The applicant told the Tribunal that when it comes to family, he is a ‘different person’. The applicant states that he was not living at home and was not with the family before and that is the reason he had offended, but it is different when it comes to his family. The applicant states that when he offended in the past, he was a different person and thought he could offend without consequences but now he has had time to think about it more. The applicant claims he has changed. The applicant’s immediate family reside in Australia and the Tribunal acknowledges that the principles of family unit would require that the visa is not cancelled.

1. The applicant told the Tribunal that he has a three months old child. He lives separately from the child’s mother and they are trying to ‘work things out’. The child lives with him for four days at a time and there are no formal court orders. The applicant states that if he is removed from Australia, the child will grow without a father. The applicant states that if he has to leave, the child’s mother would remain in Australia and he cannot be certain that she will bring the child to see him in New Zealand. The applicant stats that he does not want his child to grow up in New Zealand.

1. The Tribunal would normally find that it is in the best interests of a child to be with both parents. However, in this case, the Tribunal does not consider this to be the case, given the applicant’s multiple convictions and, in particular, convictions involving drugs and violence or threats of violence. The applicant claims the violence was always towards others and did not involve his family but his violent conduct would have affected other families. Thus, threatening a 14 year old child with a knife suggests violence or threat of violence towards a child and in the Tribunal’s view, this is a very serious consideration that may suggest that it is not in the best interests of the applicant’s child to grow up with the applicant. Essentially, given the extent and the nature of the offending, the Tribunal is concerned that the presence of the applicant in the child’s life may expose that child to anti-social or violent behaviour. The Tribunal is concerned that the applicant’s presence would be detrimental, rather than helpful to the child. It may be that with the passage of time, if the applicant is able to demonstrate his rehabilitation, these considerations would be different and the best interests of the child would be different but at present, given the extensive offending, including quite recently, and the nature of the offending, the Tribunal has formed the view that it is not in the best interests of the child to be with the applicant.

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

1. The visa in question is not a permanent visa, although it allows permanent stay in Australia. The applicant has been living in Australia since a young age and has his immediate family in Australia. The Tribunal accepts that the applicant has strong family ties in Australia and that his removal from Australia may lead to the breach of family unity obligations. The applicant told the Tribunal that he has worked at a Subway store for a few weeks or a few months and he helps his aunt and a family friend with their business but had not worked otherwise and the Tribunal is not satisfied the applicant has business ties in Australia.

Any other relevant matters

1. The Tribunal took oral evidence from Ms Burton, who referred to the applicant making ‘poor decisions’ for which he is regretful. Ms Burton states that the applicant has a young child and it would be detrimental to the family and the child if the visa is cancelled. Ms Burton states that the applicant has made poor choices and he has expressed regret. Ms Burton expressed her belief that the applicant is on a ‘new path’ now that he has a child. Ms Burton referred to the applicant volunteering in her nursery and refers to his good character. The Tribunal acknowledges that evidence.

1. The applicant’s father told the Tribunal that the applicant had done rehabilitation in the past which did not work but more recently since the birth of his child, his has changed mentally and he has moved away from the circle of friends and spends more time with the family. The applicant’s father told the Tribunal that the birth of his son was a catalyst for the applicant to change and he now wants to make the change.

1. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant’s presence in Australia may be a risk to the community and that there are grounds for cancelling the visa.

1. The Tribunal considers that there are strong reasons why the visa should not be cancelled. In particular, the Tribunal places greatest weight on the length of time the applicant has spent in Australia and the presence of his immediate family in this country. The principles of family unity play strongly against the cancellation. The Tribunal acknowledges that considerable hardship may be caused to the applicant and his family if his visa is cancelled, and if the applicant is required to return to a country where he has not lived for any significant period of time since he was a child. The Tribunal also places weight on the applicant’s desire to be with his newborn son, although for the reasons stated above, the Tribunal has formed the view that the applicant’s presence in this child’s life, at least at present, may not be in the best interests of the child. The Tribunal is also mindful of the applicant’s evidence that he has volunteered and wants to ‘give back’ to the community. The Tribunal acknowledges there are strong reasons why the visa should not be cancelled.

1. However, the Tribunal also considers that there are stronger reasons in favour of the cancellation. Most significantly, the Tribunal places weight on the circumstances in which the ground for cancellation arose. Many of the offences, as described above, involve violence towards others, including a threat of violence towards a 14 year old child. In the Tribunal’s view, any conduct involving a threat of violence towards a child is reprehensible. The Tribunal places weight on the fact that the offences are numerous and occurred over a period of time and while the applicant claims he has now rehabilitated, there is very little evidence of that. There is some, but very limited engagement by the applicant in rehabilitation since the most recent offending and the Tribunal does not accept his evidence that he has had time to appreciate the seriousness of his conduct given his detention in an adult facility, given the multiple periods of detention in the past, albeit in juvenile facilities. There is little evidence that the applicant is no longer associating with his old ‘friends’ or that his future conduct would be different to his pact conduct. Essentially, the Tribunal considers that insufficient time has passed since the most recent offending to test the applicant’s resolve and ability to abide by the Australian laws.

1. The Tribunal also notes the applicant’s and his father’s evidence that they have family in New Zealand and that the applicant will be able to live with his family, which would to some extent minimise the hardship.

1. Overall, the Tribunal has formed the view that the circumstances in which the ground for cancellation arose outweigh other considerations. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

DECISION

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

Kira Raif Senior Member