Yohannes (Migration)

Yohannes (Migration) [2022] AATA 5264 (3 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Yonnes Yohannes
REPRESENTATIVE:  Mr Tanguy Mutumba Mwilambwe (MARN: 1570409)
CASE NUMBER:  2212357
HOME AFFAIRS REFERENCE(S):          BCC2019/3345865
MEMBER:Simone Burford
DATE:3 February 2022
PLACE OF DECISION:  Perth
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 03 February 2023 at 4:21pm
CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – Federal Circuit and Family Court remittal – ground for cancellation – risk to safety of Australian community or individual – criminal charges – drug trafficking – firearms offences – risk of reoffending – ongoing drug use – consideration of discretion – compelling reason to remain – family ties in Australia – Australian citizen wife and daughter – best interest of the child – degree of hardship – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116
CASES
EVE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC (Div2) 729
Gong v MIBP [2016] FCCA 561
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata (2021) 284 FCR 62
Tien v MIMA (1998) 89 FCR 80
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 23 September 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 (Cth) (the Act).
Background
Mr Yonnes Yohannes, the review applicant, is a 27-year-old New Zealand citizen. He first arrived in Australia on 21 September 2004 on a Subclass 444 Special Category visa (SCV). He departed Australia on 4 October 2004 and returned on 29 November 2004. He testified that he has not returned to his country of origin or left Australia since then. This is consistent with Departmental movement records.
On 23 September 2019, the Department issued a Notice of Intention to Cancel (NOICC) the applicant’s visa under s 116(1)(e)(i) on the basis that the applicant had been charged with a range of criminal offences in Victoria including trafficking cannabis and cocaine, possessing an unregistered handgun and ammunition, dealing with the proceeds of crime and possessing various illicit drugs, and that, due to his alleged behaviour, his continued presence in Australia is or may be a risk to the safety of the community.
The notice was sent to the applicant in the Marngoneet Correctional Centre. The applicant signed an acknowledgment of receipt of that document on 26 September 2019. According to the delegate’s decision he did not respond to the notice.
On 23 September 2019, the delegate cancelled his visa under s 116(1)(e)(i) on the basis that the applicant had been charged with a range of criminal offences in Victoria including trafficking cannabis and cocaine, possessing an unregistered handgun and ammunition, dealing with the proceeds of crime and possessing various illicit drugs. The delegate found that the charges and information from police supporting those charges indicated a propensity towards criminal conduct. The delegate found there were grounds for cancellation of the applicant’s visa as the delegate considered his presence in Australia is or may be a risk to the health or safety of the Australian community.
On 3 October 2019, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for a review of that decision. On 27 April 2020, the Tribunal, differently constituted, decided it did not have jurisdiction to decide the application because although the application was filed within time, the prescribed fee was not paid within the prescribed period. In the applicant’s case, according to the Tribunal’s decision, the applicant’s application was 50 cents short of the required fee (which was half of the application fee).
On 3 June 2020, the applicant sought judicial review of that decision to the Federal Circuit and Family Court of Australia. The Federal Circuit and Family Court of Australia remitted that decision, by consent, on 17 August 2022. The court noted that the Minister conceded that the decision of the Tribunal was affected by jurisdictional error because the Minister’s notification letter dated 26 September 2019 did not meet the requirements of s 127(2)(b) of the Act, in that it did not expressly state whether review was available under Part 5 or Part 7 of the Act applying the decision of the Federal Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata (2021) 284 FCR 62 at [40]–[44]. As the applicant was not notified of the delegate’s decision dated 23 September 2019 in accordance with the requirement of the Act, time, for the purposes of s 357(1)(b), had not commenced to run, and the Tribunal erred in concluding that it did not have jurisdiction. The applicant advised the Tribunal he had not been renotified of the decision as at the time of the hearing.
ISSUE
The issue in the present case is whether the grounds for cancellation of the applicant’s visa are made out, and if so, whether his visa should be cancelled.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
PROCEEDINGS BEFORE THE TRIBUNAL
The applicant initially appeared before the Tribunal via telephone conference at a case management hearing held on 17 October 2022. At that initial hearing, the Tribunal discussed with the applicant and his representative the Tribunal’s role and the evidence and submissions the applicant planned to provide in support of the application.
The applicant was represented in relation to the review. The representative attended the Tribunal hearings by telephone or videoconference.
As the applicant had not responded to the NOICC and some time had passed since the visa cancellation, at the case management hearing, the Tribunal requested the applicant file evidence and submissions addressing whether the grounds for cancellation were met and, if so, whether the visa should be cancelled. The applicant’s representative indicated that it would be able to provide submissions and material by the third week of November 2022.
Notice of Intention to Cancel (NOICC)
As noted above, the Department issued a Notice of Intention to Cancel (NOICC) the applicant’s visa on 23 September 2019. The notice was sent to the applicant in the Marngoneet Correctional Centre. The applicant signed an acknowledgment of receipt of that document on 26 September 2019. In this case, the fact of the applicant’s imprisonment appears to have become known to the Department via another Commonwealth agency. The details of that information were the subject of an s 375A certificate.
As the NOICC was provided to the applicant in prison and there is no information before the Tribunal to suggest that address was provided to the Minister by the recipient for the purposes of receiving documents when the NOICC was issued, it appeared, following the decision in EVE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[1], there was likely a defect in the Departmental procedure with respect to the NOICC.
[1] [2022] FedCFamC (Div2) 729.
However, the case law suggests that with respect to an s 116 cancellation, the Tribunal can cure such a defect by applying its own procedural fairness rules.[2] This is not confined to curing a lack of procedural fairness but would extend to curing a failure to follow mandatory procedures under ss 119–121.[3]
[2] See Zubair v MIMIA (2004) 139 FCR 344 at [32]; MIMIA v Ahmed (2005) 143 FCR 314 at [3]; Uddin v MIMIA (2005) 149 FCR 1 at [55]–[58]; Krummrey v MIMIA (2005) 147 FCR 557. See also Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116 and Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 at 219.
[3] Alam v MIMIA [2004] FMCA 583 at [42], referring to Zubair v MIMIA (2004) 139 FCR 344 at [28], [32].
Mindful of the need to provide procedural fairness to the applicant, the Tribunal sent the applicant an invitation to comment on or respond to the issues raised in the NOICC and to provide any information relevant to the exercise of the discretion to cancel the visa if the grounds for cancellation were made out. In response to that invitation the applicant provided the following information on 9 December 2022:
·Written submissions dated 9 December 2022;
·Copies of course certificates for the applicant; and
·A report from Dr Palk dated 5 December 2022.
Additional information the applicant provided is detailed below.
The issue of the potential defect in the NOICC and the Tribunal’s understanding of the capacity to cure the defect were discussed with the applicant’s representative at the second hearing. The applicant’s representative was invited to make submissions with respect to those matters at the hearing or in post hearing submissions. However, the applicant’s representative indicated he agreed with the Tribunal’s assessment and had no submissions to make with respect to that issue.
Summons material
As the Tribunal initially had limited information before it regarding the applicant’s circumstances including the status of charges which had been pending at the time of the cancellation decision, the Tribunal issued summons with respect to the applicant’s charges and any subsequent disposition of those charges to the Magistrates’ Court of Victoria and to Victoria Police.
Upon receipt of the material from the Magistrates’ Court of Victoria, the Tribunal wrote to the applicant pursuant to s 359A of the Act putting the information to him and inviting him to make submissions in response to it. The letter included copies of the record of court outcomes provided by the court.
The applicant responded to that invitation on 13 January 2023. In broad terms, the applicant accepted that the record of court outcomes provided by the Magistrates’ Court of Victoria was accurate. The other information provided by the applicant was directed towards the exercise of the discretion to cancel the visa and is discussed further below.
The Tribunal notes that the material from Victoria Police was provided to the Tribunal later and covered similar information to that put to the applicant under s 395A. As discussed with the applicant at the subsequent hearing, the Tribunal did not consider that information added anything to its consideration of the application, and having regard to the applicant’s acceptance that the records were accurate, the information would not be the reason or part of the reason for affirming the decision under review.
Applicant’s submissions and evidence
On 16 January 2023, the applicant attended a Tribunal hearing in person to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, Ms Fayo Youssuf, the applicant’s mother, Mrs Fartun Muketar, the applicant’s sister‑in‑law, Ms Adjabo Rashid, and Dr Gavan Palk, a clinical psychologist, who prepared a report for the proceedings.
Prior to the hearing, the applicant submitted the following documents:
i.    Submissions received 9 December 2022
·Report from Dr Gavan Palk, forensic psychologist, Australian Psychological Society, dated 2 December 2022.
ii.    Submissions received 12 December 2022
·Submission from representative “Statement of Facts, Issues and Contentions” dated 9 December 2022.
iii.    Submissions dated 15 December 2022
·Certificates of training programs completed by Mr Yohannes:
o Certificate of Completion “6 Hour Managing cravings program” Caraniche training dated 1 October 2019;
o Certificate of Completion “Atlas Mapping a way forward” Caraniche training dated 22 July 2019;
o Statement of results – Box Hill Institute – Certificate II in Construction Pathways dated 30 August 2019;
o Certificate of Completion “6 Hour AOD & Stress Management Program” Caraniche training dated 18 September 2019;
o Certificate of Completion “Atlas Take Stock A” Caraniche training dated 10 September 2019;
o Certificate of Completion “Atlas Take Stock B” Caraniche training dated 25 September 2019.
iv.    Submissions dated 13 January 2023
·Statutory declaration by Mr Yonnes Yohannes, review applicant (note the signed and dated version was submitted on 16 January 2023);
·Statutory declaration by Ms Fayo Youssuf, wife of the review applicant (note the signed and dated version was submitted on 16 January 2023);
·Statutory declaration by Mrs Fartun Muketar, mother of the review applicant (note the document is unsigned and undated);
·Statement from Mr Sallam Yohannes, brother of the review applicant;
·Statement from Mr Yaheya Yohannes, brother of the review applicant;
·Statement from Mr Elias Yohannes, brother of the review applicant.
v.    Submissions dated 16 January 2023
·Statement from Ms Adjabo Rashid, sister-in-law of the review applicant.
Following the hearing, the applicant’s representative submitted a “Supplementary Statement of Facts, Issues and Contentions” on 23 January 2023.
Certificates
At the initial hearing, the Tribunal also informed the applicant that the Department file included material which was the subject of certificates issued under ss 375A and 376 of the Act. The Tribunal indicated that as the hearing was being held remotely, the Tribunal would write to the applicant providing copies of the certificates and inviting him to make submissions with respect them following the hearing. This was done by letter dated 17 October 2022. That letter provided copies of the certificates and invited the applicant to make submissions with respect to the validity of the certificates and, with respect to the s 376 certificate, to make any submissions on whether the Tribunal should exercise its discretion to release the information covered by the certificate. No submissions were received.
The Tribunal notes that the certificate issued under s 375A of the Act covered the information contained in document number CLD2019/48574674 of folder BCC2019/3345865. The certificate states that disclosure of the information contained in the identified folios would be contrary to the public interest because:
the information contained within this document was provided ‘in confidence’, the provider of the information has not consented to the disclosure of the information to the review applicant. Further, release of such information may prejudice a current or pending investigation of a possible breach of the law or enforcement of the law in a particular instance.
The Tribunal notes the information was provided by another Commonwealth agency and includes sensitive information relating to third parties. The Tribunal is satisfied that a public interest reason has been specified, that the reason specified is a public interest reason, and that the material the subject of the certificate falls within the stated public interest reasons.
As a result, the Tribunal is satisfied the s 375A certificate is validly issued and prevents it from disclosing information specified in the documents covered by the certificate. The Tribunal considered the material covered by the certificate was largely historical and was covered by other material elsewhere on the file. Accordingly, the Tribunal did not consider the information covered by the certificate to be relevant to the outcome of the review.
Information contained in file number CLD2019/39510054 of TRIM folder reference number BCC2019/3345865 was subject to a non-disclosure certificate that had been issued by the Department under s 376 of the Act. The certificate states that disclosure of the information contained in the identified document would be contrary to the public interest because:
File number CLD2019/39510054 contains information provided from a third party which pertains to other individuals and parties not related to the applicant.
Disclosure of this information would or may be prejudicial to the privacy of these parties/individuals.
This information related to the applicant’s offences. The Tribunal is satisfied that a public interest reason has been specified, that the reason specified is a public interest reason, and that the material the subject of the certificate falls within the stated public interest reasons.
As a result, the Tribunal is satisfied the s 376 certificate is validly issued. As discussed with the applicant at the second hearing, the Tribunal considered the material covered by the certificate was largely historical and was covered by other material elsewhere on the file. The applicant did not seek access to the documents at the hearing, and given public interest raised in the certificate the Tribunal decided not to exercise its discretion to release the information. In any event, the Tribunal did not consider that the information covered by the certificate added anything to its consideration of the issues arising on review or that it would be the reason or part of the reason for affirming the decision under review.
The Tribunal informed the applicant at the next hearing that it considered the certificates were valid, but as the material covered by the certificates had been overtaken by subsequent events and information (discussed below) the material did not add anything to the Tribunal’s determination of the application and it would not be relying on that information in making its decision. The applicant’s representative did not raise any concerns with this approach and made no submissions in favour of exercising the discretion to release the information, where available.
CONSIDERATION
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)(i). 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
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.[4]
[4] 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 delegate’s decision indicated the applicant was the holder of a Special Category visa granted to him on 29 November 2004. This was consistent with Departmental records and the applicant’s evidence and was not at issue before the Tribunal.

According to the delegate’s decision, the applicant was charged with the following offences on 29 May 2019:
·Traffick Methylamphetamine
·Possess Cocaine
·Possess Cannabis
·Possible unregistered general category handgun
·Deal property suspected proceed of crime
·Possible cartridge ammunition without licence / permit
·Commit indictable offence whilst on bail
·Traffick Cannabis
·Traffick Cocaine
·Negligently deal with proceeds of crime
·Traffick Methylamphetamine
·Possess Methylamphetamine (2 charges)
·Negligently deal with proceeds of crime
·Commit indictable offence whilst on bail.
Prior to that, the applicant had been charged with the following offences on 3 February 2019:
·Theft of motor vehicle
·Negligently deal with proceeds of crime (7 charges)
·Possess cannabis.
The delegate’s decision noted that on 3 February 2019 the visa holder was charged with the above offences and bailed from Melbourne North Police station. On 11 February 2019 police executed a search warrant at a storage unit of Kennards Storage, Maribyrnong, and allegedly located 60 grams of Methylamphetamine and A$17,000 in cash. The applicant was allegedly listed as an alternate contact for this unit. At a later stage, police reviewed the surveillance footage for the facility between 11 February 2019 and 29 May 2019 which allegedly depicted the visa holder attending the storage unit on a total of 51 occasions.
The delegate’s decision went on to note that on 29 May 2019 police executed a search warrant at the storage unit and allegedly located A$600 in cash believed to be proceeds of crime. In addition to this, police allegedly located A$12,000 in cash; 60 grams of Methylamphetamine; a handgun; and a combination of 100 bullets and shotgun shells. On the same day, police executed a search warrant of the visa holder’s premises and allegedly located A$2,850 in cash; 20 grams of cannabis; 2 grams of cocaine; and a key matching the lock of the storage unit. Police charged the visa holder with the above noted charges dated 29 May 2019 and placed the visa holder on remand. At the time of his arrest, the visa holder was on bail for the pending charges dated 3 February 2019. The decision noted the applicant had recorded prior offences for ‘dealing in property suspected the proceeds of crime’ and offences as a juvenile.
The applicant was issued with the NOICC which referred to grounds for cancelling the visa under s 116(1)(e)(i). It is stated that the applicant did not respond to the NOICC and his visa was cancelled.
As noted earlier, significant time had lapsed between the cancellation and the Tribunal’s consideration of the application for review.
According to information provided to the Tribunal on summons by the Magistrates’ Court of Victoria, on 8 October 2020 the applicant was convicted and sentenced to an imprisonment term of 500 days. This was part of an aggregate sentence, concurrent with other State sentences imposed.
As part of the court proceedings, several charges were withdrawn. The Tribunal notes that Mr Yohannes plead guilty to the remaining charges.
A summary table of the charges and court results taken from the material produced by the Magistrates’ Court of Victoria and the delegate’s decision is included as Attachment A.
In his response to this information, the applicant conceded the records were accurate, noting that he had been convicted of several offences including trafficking methamphetamine, possessing cannabis and cocaine, dealing property suspected proceeds of crime and weapons and ammunition offences. Due to the timing of his conviction, his entire prison term was on the basis of time served (as he had already spent 500 days in custody at the time of sentencing).
At the hearing, the applicant acknowledged that he had committed the offences. He said that he accepted he was guilty and did not seek to minimise the serious nature of his offending. He acknowledged that his family, including his wife, infant daughter and mother had suffered as a result of his offences and conviction.
However, he also sought to explain his offending by refence to his need to support his drug use at the time which he said he understood now arose from depression and unresolved trauma he suffered when he was younger. His statutory declaration and the evidence of Dr Palk referred to the applicant suffering sexual abuse as a child at the hands of a lineal relative with whom he is not longer in contact and who resides in New Zealand.
The applicant indicated he planned to deal with his mental health issues by seeking regular counselling in the community and potentially entering a drug rehabilitation program. He acknowledged he was “not sure how easy it would be” to stay off drugs in the community. However, he also stated he was determined to turn his life around now that he had a daughter.
The Tribunal has also considered the evidence of Dr Palk, a clinical psychologist, who interviewed the applicant in November 2022. Dr Palk assessed “there was evidence of unresolved psychological trauma due to childhood sexual abuse” and that the applicant “meets the DSM-5 for posttraumatic stress disorder (PTSD) and substance use disorder as well as adjustment disorder with features of anxiety and depression.” Dr Palk reported that the applicant was remorseful and acknowledged the harm and potential harm his offending caused the community.
With respect to his risk of reoffending, Dr Palk notes:
He impresses as being determined and committed to rehabilitating himself. There were no indications of current aggressive or violent tendencies or elevated psychopathic traits.
Mr. Yohannes’ risk of reoffending currently seems low considering his personality and overall lifestyle, remorse, and attitudes to improving his employments skills and rehabilitation as well as his desire to remain in Australia so as not to be separated from his wife and young daughter.
In summary, he noted that:
He accepts his offending was serious and regrets the offending and is determined to not re-offend.
He appears genuinely remorseful and is committed to not re-offending and living a pro-social life. Mr Yohannes has been assessed as being a low risk of re-offending.
The Tribunal also considered the evidence of the applicant’s wife, mother and sister-in-law and the written statements of his brothers. All the witnesses acknowledged the applicant’s offending and expressed their willingness to support the applicant reintegrating to the community in Australia and living a prosocial lifestyle. The applicant’s wife indicated the applicant would live with her and their daughter and that she would be in a position to support him financially on his release. She testified that she was suffering from depression herself and would benefit from his support and that they had discussed his plans for work and treatment.
The applicant’s sister-in-law testified that she and her family were ready to support the applicant including in identifying appropriate treatment programs and that she had spoken to him about this. She testified that his imprisonment had impacted her sister (the applicant’s wife) and that she was struggling to cope and this had resulted in her withdrawing from the family but that she was confident his release would help her sister recover.
The Tribunal has considered the evidence provided by the applicant as well as his witness that he is remorseful and has worked on understanding the underlying causes of his offending and dealing with his mental health challenges.
The Tribunal, however, is not persuaded on the basis of the evidence before it that the applicant’s risk of reoffending could be considered to be non-existent or so low as to be discounted. The applicant conceded he has continued to use drugs while in the controlled environments of prison and detention. He told the Tribunal he stopped using drugs about a year prior to the hearing. This was confirmed by the evidence of his wife who had expressed concern over his ongoing drug use. His drug use was sustained and persistent across a number of years and on the psychological evidence was driven by complex mental health issues which the applicant concedes he has only begun to address. It also appeared he had minimised his drug use in his interview with Dr Palk who recorded he admitted using drugs while in prison but had been clean and indicated he had been drug-free for at least the last 2 years. Further, while he has taken some general offending and improvement courses, including one short course on managing cravings, the applicant has not undertaken any programs specifically addressing drug dependency. Dr Palk’s evidence identified this as an unmet treatment need in this evidence. While the Tribunal accepts the lack of such treatment thus far is at least in part due to the limited availability of those programs to people on remand and in immigration detention, in the Tribunal’s view, this evidences unmet treatment needs with respect to underlying factors in the applicant’s prior offending which in the Tribunal’s assessment contributes to a risk of reoffending. The applicant’s commitment to abstaining from substance use and to not reoffending is untested in the community, and on previous occasions when he was on bail he reoffended.
While the evidence indicates the applicant has the ongoing support of his family which is a protective factor against reoffending, those prosocial supports were insufficient to prevent his offending previously. Further, he was able to conceal his drug use and criminal activity from those closest to him, casting some doubt on the capacity for those supports to identify and protect against further offending or drug use in the future.
Balanced against this, Dr Palk assesses the applicant’s remorse to be genuine and his prospects for rehabilitation to be good. He assesses him to be at a low risk of reoffending. Further, the Tribunal accepts the applicant has matured during the intervening period and the Tribunal found his remorse over the consequences of his offending to be genuine, particularly with respect to the impact on his wife and daughter who was born when he was on remand. The Tribunal considers the risk of cancellation and return to New Zealand will act as a deterrent to reoffending in the applicant’s circumstances.
While the Tribunal assesses the applicant’s risk of reoffending is low, provided he can maintain his commitment to refrain from illicit substance use, the potential for serious harm to others arising from possible reoffending means, in the Tribunal’s view, that the risk to the community remains.
As already noted, s 116(1)(e) provides that a person’s visa may be cancelled not only where the visa holder’s presence in Australia “is” or “would be” a risk to the safety of the Australian community, but also where it “may be” or “might be”, thereby suggesting a very low threshold as to a future possibility. In Gong v MIBP, Judge Smith stated:
Simply put, the fact that sub-s.116(1)(e) is engaged where the Minister is satisfied that a visa holder’s presence “may be a risk” to certain matters means that there does have to be, as the applicant suggests, any direct, solid or certain foundation before the power to cancel a visa can arise. In other words, it can arise on the possibility that some event occurred in the past. In this case, that possibility was supported by the laying of the charges. That is to say that that fact alone was not legally irrelevant to the question posed by sub-s.116(1)(e).
The Tribunal is mindful of the serious nature of the applicant’s past offences which included drug trafficking and firearms offences. The delegate’s decision noted the impact of drug offending on the community, and in the Tribunal’s view, drug trafficking presents a risk not only to encouraging illicit drug use but to the health and criminal justice costs associated with such activity. In the Tribunal’s assessment, the fact that the applicant received a 17-month custodial sentence for his offences, despite his relative young age and lack of significant prior offending, reflects the seriousness with which the courts, and the community, regard such offending and the risks it presents to the community.
The fact that the applicant committed these offences in the past leads the Tribunal to find that his presence in Australia may be a risk to the health, safety or good order of the Australian community or a segment of the Australian community. The Tribunal, therefore, 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
There are no matters specified in the Act or the Migration Regulations 1994 (the 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
As noted earlier, the applicant was born in New Zealand and first arrived in Australia on 21 September 2004 on a Subclass 444 Special Category visa (SCV). He departed Australia on 4 October 2004 and returned on 29 November 2004.
The applicant told the Tribunal at the hearing that he had moved here as a child when he was 9 or 10 years old together with his parents and siblings.
His parents had come to New Zealand in 1994 from a refugee camp in Kenya where they met. His father is Ethiopian and his mother is Somali. They initially settled in Wellington, New Zealand, with some family members. Others, including the applicant’s uncle, had settled in Australia and his family had come to visit initially to see what it was like before deciding to resettle here in November 2004. He said his father was looking for better work. At the time, he was driving a taxi but he wanted to own his own cab. He said all his family was here now except his grandfather who travelled between New Zealand and Australia and his father who returned to Ethiopia when his relationship broke down in 2021. His parents divorced in 2022 and his father is now remarried.
The applicant confirmed that he is a New Zealand citizen and could return there. He does not wish to do so due to the presence of the family member who he claims abused him and because it would separate him from his wife, daughter and family. He testified this would cause distress and financial hardship to his family members. He states that he has no family support in New Zealand and is not familiar with New Zealand, having moved here at a relatively young child.
The Tribunal finds the applicant travelled to Australia to resettle here with his family to seek improved economic opportunities in Australia. This reasons for entering Australia were consistent with the Special Category visa which although a temporary visa, allows holders to enter and stay in Australia for as long as they are New Zealand citizens and to work and study in Australia.
While as a New Zealand citizen he has the right to return to New Zealand, he has not done so since late 2004. The applicant submitted he has compelling reasons to remain in Australia given his family members all reside here and in particular as his wife and daughter are Australian citizens. The Tribunal accepts the applicant’s connection to his wife and child give him a compelling reason to remain here.
Given the applicant’s arrival in Australia as a child whose family was relocating to Australia, their consistent residence here, and the presence of his wife and child in Australia, the Tribunal gives this factor moderate weight against cancelling the applicant’s visa.
Past and present behaviour of the visa holder towards the Department
There is no information before the Tribunal that the applicant has provided any incorrect information to the Department. The Tribunal considers this factor carries neutral weight in the applicant’s circumstances.
The extent of compliance with visa conditions
There is no evidence before the Tribunal that the applicant has failed to comply with any visa conditions. The Tribunal considers this factor carries neutral weight in the applicant’s circumstances.
Circumstances in which ground for cancellation arose
The offences for which the applicant was charged were described above. The offences were serious drug offences and property offences including trafficking in methamphetamine and firearms offences. While the applicant did not have an extensive history of offending, he was convicted of multiple offences and the circumstances of the offences indicate they arose from events which occurred across an extended period.
As noted earlier, the applicant sought to explain the circumstances leading to his offending by reference to his drug use caused by mental health problems including PTSD and depression. He submitted that he needed to support his own drug use and reported to selling drugs and the property offences to do so. Expert psychological evidence indicated the applicant’s mental health issues were the result of childhood trauma which had not been acknowledged or treated and drug dependency. In testimony before the Tribunal, Dr Palk also indicated that the applicant’s relatively young age and associated immaturity at the time of the offending was a factor.
While the Tribunal acknowledges the underlying causes of the applicant’s offending, this does not minimise the serious nature of the offences. The grounds for cancellation arose because the Tribunal has formed the view that the applicant’s presence in Australia may be a risk to the Australian community. The risks associated with such offending were discussed earlier. On the information the applicant’s offences were not a once off but reflected a pattern of behaviour which he acknowledges was harmful not only to his own family but to the broader community.
In the Tribunal’s view, the circumstances in which the ground for cancellation arose weigh heavily in favour of exercising the discretion to cancel the visa.
Whether there would be consequential cancellations under s 140
There are no persons who would be affected by mandatory cancellation under s 140. The Tribunal considers this consideration is not relevant in the applicant’s circumstances.
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
Non-refoulement obligations
The applicant did not raise any claims that his return to New Zealand would raise any issue of a breach of Australia’s non-refoulment obligations.
The Tribunal notes the applicant was concerned about returning to Wellington where the family member whom he claims assaulted him as a child continues to live. However, in evidence before the Tribunal, he accepted it would be open to him to live elsewhere and did not raise any claim to face a real risk or real chance of serious or significant harm from that person or from any other person for any reason.
At the hearing, the applicant told the Tribunal that he will suffer hardship if returned to New Zealand and that he has no family support there. However, he did not suggest that the hardship he would suffer on removal from Australia would be in breach of Australia’s non‑refoulement obligations. In any event, the Tribunal notes that the applicant’s visa is not a protection visa and that there is no informtion before the Tribunal to suggest the applicant would be prevented from lodging an application for a protection visa. Any claims for protection could be fully considered in the context of any such application.

The Tribunal, therefore, gives this factor neutral weight in the applicant’s circumstances.
Convention of the Rights of the Child (CROC)
The Department’s PAM3 policy provides that the “obligations that are most relevant to the cancellation process are those relating to the best interests of the child, family unity and non‑refoulement”.[5] As a signatory to the CROC, Australia has certain obligations, which are referred to in the Department’s policy. These obligations include the best interests of the child being a primary consideration (Article 3.1) and family unity principles (Articles 9 and 16).
[5] See PAM3 - Migration Act - Visa cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B & s140) - Australia’s international obligations (re-issue date 21/8/16).
The applicant and his wife gave evidence at the hearing. Their evidence was consistent with respect to the relationship, their daughter and their plans for the future.
They married in 2019. They have one daughter who was born shortly after the applicant was imprisoned. She is now 3 years old. She has met her father and initially was visiting him 3 times a week with her mother while he was in prison. However, she has not seen him in person since COVID-19 restrictions prevented in-person visits and he was later transferred to immigration detention in Western Australia.
The applicant testified that he was committed to being a father figure for his daughter and to supporting her and his wife. He provided evidence of having undertaken courses in prison directed to improving and developing parenting skills. His wife testified that she is struggling with being a single parent to her daughter and needs her husband’s support and assistance in caring and providing for her.
The applicant entered prison prior to his daughter’s birth and due to his incarceration he has not been involved in his daughter’s day-to-day care. While the Tribunal accepts the evidence he has attempted to establish a relationship with his daughter remotely, given the lack of in-person contact and her young age, it cannot be said that his daughter has had an opportunity to develop a close relationship with him. The Tribunal accepts that he has been in regular contact with his wife and daughter and that they desire for him to remain in Australia. The Tribunal further accepts that the cancellation of the applicant’s visa would continue to hinder his opportunities to build a meaningful relationship with his daughter. However, his daughter’s primary carer is her mother and this would not change if the applicant were removed to New Zealand.
Against this, the Tribunal accepts that the applicant’s wife is struggling with the applicant’s detention and caring for her daughter alone. This was evident in her testimony and in that of her sister. The Tribunal accepts in those circumstances that the applicant’s removal may further negatively impact the applicant’s wife’s ability to manage her daughter’s care alone. The Tribunal accepts the applicant and his wife consider themselves to be a family unit and wish to remain so in the interests of their daughter.
Overall, the Tribunal finds that it is in the best interests of the applicant’s daughter that the visa not be cancelled. This is also consistent with the family unity principles in the applicant’s case.
The Tribunal also notes the evidence of the applicant, his mother and one of his brothers, who is 17 years old. The applicant’s brother’s statement indicates he misses his brother and that his imprisonment and detention has impacted his brother’s family and his mother. His brother notes his brother’s kindness to him and the fact the family misses him. The Tribunal accepts the applicant has not lived with his family since prior to his imprisonment. His brother is in the care of his mother and lives with her and 2 of his older brothers who provide for his financial needs. While his relationship with the applicant is not parental, the Tribunal accepts that they have a close and ongoing relationship which has taken on greater significance in the absence of their father.
The Tribunal finds that it is in the best interests of the applicant’s youngest brother that the visa not be cancelled.
Having regard to all the circumstances, the Tribunal gives the applicant’s brother’s best interests less weight than that of the applicant’s infant daughter, having regard to the nature of the relationship and the age of the applicant’s brother who is 17 years of age. However, taking account of the age and personal circumstances of the applicant’s daughter, the Tribunal is satisfied that this consideration weighs heavily against the cancellation of the applicant’s visa.
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 Tribunal affirms the decision to cancel the applicant’s visa, he will not hold a visa. He will be an unlawful non-citizen. Consequently, he will be liable to be detained under s 189 of the Act and will be kept in immigration detention until he is removed from Australia or granted a visa as required by s 196 of the Act.
Under s 48(1)(b)(ii) of the Act, applicants who have had their visas cancelled since their last entry into Australia may only make a valid visa application for the classes of visas which have been prescribed by reg 2.12 of the Regulations. These include partner, protection and bridging visas. They also include Special Category (Class TY) as a class of visa for which people who have had a visa refused or cancelled after last entering Australia may apply. Subclass 444 is the only subclass for Class TY. Accordingly, s 48 does not prevent a person making a further Subclass 444 visa application in Australia.[6] Nor does cancellation of a Subclass 444 visa in itself prevent a person from being granted a further Subclass 444 visa. Public Interest Criterion 4013 is not currently a criterion for a Special Category visa.
[6] Regulation 2.12 prescribes, for s 48. Special Category (Class TY) as a class of visa which people who have had a visa refused or cancelled after last entering Australia may apply for. Subclass 444 is the only Subclass for Class TY.
However, to be eligible for a Special Category (Subclass 444) visa, an applicant must be neither “a behaviour concern non-citizen nor a health concern non-citizen”, or they must be a person or in a class of persons declared by the Regulations to be a person for whom any other visa would be inappropriate. The expression “behaviour concern non-citizen” includes a non-citizen who has been convicted of a crime and been sentenced to imprisonment for at least one year, or has been removed or deported from Australia.[7] As the applicant’s cancellation is based on a criminal conviction, he may not be able to meet this criterion. Where a person may be removed or deported following cancellation, the removal or deportation may prevent a person being granted a further Subclass 444 visa.
[7] s 5(1).
While the applicant did not indicate any intention to apply for a further visa to remain in Australia, the Tribunal considers there are a range of visas for which he would be eligible to apply should he chose to do so. However, the Tribunal also accepts that in such circumstances where his visa has been cancelled due to criminal convictions, it is unlikely he would meet the criteria to be granted another visa, other than one at the discretion of the Minister.
The Tribunal accepts the legal consequence of the cancellation would be the applicant’s detention and removal. The Tribunal considers this weighs against cancelling the visa. However, as the applicant would not be barred from making a further visa application which would be assessed on its merits and there are no protection findings impacting his capacity to be removed and returned to New Zealand which might result in prolonged or indefinite detention, the Tribunal affords this consideration only slight weight against cancelling the applicant’s visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant testified that the cancellation of his visa would be very hard because he will be going back to somewhere he doesn’t know anything about and where he does not have emotional support. He would be on his own and it would be hard for his wife and daughter to relocate with him because his wife’s work was in Australia, as were her family. The applicant testified that his wife and daughter would be impacted the hardest as his wife would continue living alone and his daughter would not have a father figure. This was consistent with the evidence of his wife who stated that:
Our daughter and I would be greatly affected should my partner not be permitted to remain in Australia. Should my husband be forced to leave Australia, our daughter will not get the chance to grow up with their father. My husband will not be able to provide the same level of care and support to our daughter which I believe to be necessary for their development.
Our daughter and I are facing severe emotional and mental hardship as a result of the current circumstances surrounding my husband. The thought that my husband will not be able to be there for his daughter or I in the future is extremely stressful and worrisome. Our family unit desperately needs the support and care of my husband.
It is impossible for our daughter and I to relocate to New Zealand due to financial and emotional hardship. In New Zealand we will not have any family support as my husband has very limited family in New Zealand. As such, a removal from Australia would likely make it very difficult for my husband to have access to our daughter and could potentially result in the end of our relationship.
Our daughter is reaching the age now where not having her father around and only being able to communicate to him through video call is impacting her greatly.
The applicant’s sister-in-law indicated that his removal would have a tremendous affect on her sister and that she didn’t think she would be able “to keep it together” if his visa was cancelled. She said her parents (the applicant’s parents-in-law) had also been affected seeing the impact on the applicant’s wife and daughter and that this caused stress.
The applicant testified that his mum would suffer as he was not there to support her, including to drive her around as she does not drive. He said she had suffered as a result of the breakup with his father and needed his support. The applicant’s mother states that they will all be in a difficult position if the applicant’s visa was cancelled as he works for them and helps them.

100. Dr Palk’s report noted the applicant’s closeness with his family and observed that “it would be very detrimental to his life, mental health, and character if he were to be removed from them on a permanent basis”. He went on to state:
If Mr. Yohannes was deported, he would be denied the opportunity of developing a meaningful relationship with his wife and young daughter. Mr. Yohannes was placed in custody when his daughter was an infant.
If deported he would be denied a close meaningful relationship with mother and siblings and extended family members who love and support him and are in the best position to assist him to maintain relapse prevention strategies.

101. The Tribunal accepts that the cancellation of the applicant’s visa would cause a degree of hardship for his mother and siblings and to his extended family. In the case of the applicant’s wife and daughter, the Tribunal formed the view that the impact on them of the cancellation of the visa would be significant. The applicant’s wife is struggling to cope on her own and there was evidence she has cut herself off from her family supports as a result of the challenges she is facing arising from the applicant’s imprisonment and detention. This has caused her own mental health to suffer. While there was no expert testimony going to the wife’s mental health issues, the Tribunal found her evidence was consistent with reports from her sister and mother-in-law that she was suffering as a result of the applicant’s absence. While it may be open to the applicant’s wife to relocate with him, the Tribunal accepts she may not wish to do so and that relocating countries would place a mental and financial strain on her and the applicant, as they would be without family support in New Zealand and the applicant’s wife as the income earner in the marriage would at least initially be without work. Given the family’s age and circumstances as a young married couple with a young child, this is likely to cause them significant financial hardship.
102. Given the applicant’s circumstances, including his young family and the extent of his ties to Australia having come here as a child, the Tribunal places significant weight on this factor against cancellation of the applicant’s visa.
For permanent visas, whether the former visa holder has strong family, business or other ties in Australia
103. The visa under consideration is a Special Category visa which is not a permanent visa, and this consideration does not apply.
Conclusions
104. The Tribunal has considered all the relevant factors weighing for or against cancellation of the applicant’s visa.
105. The applicant came to Australia with his family as a child with the purpose of settling in Australia. His family largely resides in Australia, including his wife and young child.
106. He has committed multiple serious criminal offences in Australia including trafficking in prohibited drugs and firearms offences. The Tribunal considers such conduct to be very serious. However, the Tribunal accepts the offences took place when the applicant was a relatively young adult and that they were driven by factors including drug dependency and mental health issues caused by childhood trauma. The Tribunal accepts that the applicant is remorseful and has matured. The Tribunal also accepts he hopes to turn his life around and make a life in Australia for his wife and child.
107. If the applicant’s visa is cancelled, he will be liable to continue to be detained and be the subject of removal. While there may be visa pathways open to him, the Tribunal accepts he may have difficulty satisfying character requirements of visas to remain in or re‑enter Australia.
108. The Tribunal accepts the applicant does not have family support in New Zealand and that the cancellation of his visa would cause, in particular, serious emotional hardship to his wife and young daughter.
109. The Tribunal has found that there are considerations which weigh significantly in favour of cancelling the applicant’s visa. These considerations include the fact that the applicant committed serious offences. The Tribunal considers there remains on ongoing risk, albeit it low, that the applicant will reoffend and that this presents risk to the community. However, the Tribunal considers that the protective factors against reoffending will assist the applicant to maintain his commitment not to reoffend. Further, the Tribunal considers that the applicant understands that his risk of reoffending is tied to his ability to refrain from illicit substance use which was a significant underlying factor in his offending and to addressing mental health issues which gave rise to drug dependency in the past.
110. While the Tribunal considers there are factors weighing heavily in favour of cancellation, the the Tribunal finds that those considerations are outweighed by the force of other very strong considerations against the cancellation of the applicant’s visa, in particularly the best interests of his daughter and the significant hardship which would be caused to his family were he to be removed.
111. Accordingly, having regard to all the relevant circumstances in this case, the Tribunal concludes that the visa should not be cancelled.
DECISION
112. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.
Simone Burford
Senior Member

Attachment

Charges and Court Results

Note: History taken from material produced on Summons from Magistrates Court of Victoria and the delegate’s decision

No.	Charge	Date of charge	Court	Court Result	Result Date
1.	Traffick Methylamphetamine	29 May 19	Werribee Magistrates Court	Forfeiture order made by consent. Order all Drugs / Instruments seized be forfeited and destroyed Convicted and sentenced to an imprisonment term of 500 days. This is part of an aggregate sentence. Concurrent with other State sentences imposed in this case. Effective total of State term imposed is 500 days. Time held in custody, 498 days, reckoned as a period of imprisonment already served under this sentence.	8 Oct 2020
2.	Possess Cocaine	29 May 19	Werribee Magistrates Court		8 Oct 2020
3.	Possess Cannabis	29 May 19	Werribee Magistrates Court		8 Oct 2020
4.	Possible unregistered general category handgun	29 May 19	Werribee Magistrates Court	Forfeiture order made by consent. Order all Property/s seized be forfeited and destroyed Convicted and sentenced to an imprisonment term of 500 days. This is part of an aggregate sentence. Concurrent with other State sentences imposed in this case. Effective total of State term imposed is 500 days. Time held in custody, 498 days, reckoned as a period of imprisonment already served under this sentence.	8 Oct 2020
5.	Deal property suspected proceed of crime	29 May 19	Werribee Magistrates Court		8 Oct 2020
6.	Possible cartridge ammunition without licence / permit	29 May 19	Werribee Magistrates Court	Forfeiture order made by consent. Order all Property/s seized be forfeited and destroyed. With conviction, fined $1500.00 Order referred to the Director, Fines Victoria, for collection and management.	8 Oct 2020
7.	Commit indictable offence whilst on bail	29 May 19	Werribee Magistrates Court	Convicted and sentenced to an imprisonment term of 500 days. This is part of an aggregate sentence. Concurrent with other State sentences imposed in this case. This is part of an aggregate sentence. Effective total of State term imposed is 500 days. Time held in custody, 498 days, reckoned as a period of imprisonment already served under this sentence.	8 Oct 2020
8.	Traffick Cannabis	29 May 19	Werribee Magistrates Court	Struckout - withdrawn	8 Oct 2020
9.	Traffick Cocaine	29 May 19	Werribee Magistrates Court		8 Oct 2020
10.	Possess Methylamphetamine	29 May 19	Werribee Magistrates Court		8 Oct 2020
11.	Negligently deal with proceeds of crime	29 May 19	Werribee Magistrates Court		8 Oct 2020
12.	Traffick Methylamphetamine	11 Feb 2019	Werribee Magistrates Court	Struckout - withdrawn	8 Oct 2020
13.	Possess Methylamphetamine	11 Feb 2019	Werribee Magistrates Court		8 Oct 2020
14.	Negligently deal with proceeds of crime	11 Feb 2019	Werribee Magistrates Court		8 Oct 2020
15.	Commit indictable offence whilst on bail	11 Feb 2019	Werribee Magistrates Court		8 Oct 2020
16.	Negligently deal with proceeds of crime	3 Feb 2019	Werribee Magistrates Court	Forfeiture order made by consent. Order all Property/s seized be forfeited to the Minister and disposed of or otherwise dealt with according to the direction of the Minister. Convicted and sentenced to an imprisonment term of 500 days. This is part of an aggregate sentence. Concurrent with other State sentences imposed in this case. This is part of an aggregate sentence. Effective total of State term imposed is 500 days. Time held in custody, 498 days, reckoned as a period of imprisonment already served under this sentence.	8 Oct 2020
17.	Possess Cannabis	3 Feb 2019	Werribee Magistrates Court	Forfeiture order made by consent Order all Drugs / Instruments seized be forfeited and destroyed. Dismissed under S/N 76 Sentencing Act.	8 Oct 2020
18.	Theft of a motor vehicle	3 Feb 2019	Werribee Magistrates Court	Struckout - withdrawn	8 Oct 2020
19.	Negligently deal with proceeds of crime	3 Feb 2019	Werribee Magistrates Court		8 Oct 2020
20.	Negligently deal with proceeds of crime	3 Feb 2019	Werribee Magistrates Court		8 Oct 2020
21.	Negligently deal with proceeds of crime	3 Feb 2019	Werribee Magistrates Court		8 Oct 2020
22.	Negligently deal with proceeds of crime	3 Feb 2019	Werribee Magistrates Court		8 Oct 2020
23.	Negligently deal with proceeds of crime	3 Feb 2019	Werribee Magistrates Court		8 Oct 2020
24.	Negligently deal with proceeds of crime	3 Feb 2019	Werribee Magistrates Court		8 Oct 2020
25.	Deal property suspected proceed of crime	Not known	Melbourne Magistrates Court	Dismissed. Compliance with Bond/ undertaking	1 Aug 2018
26.	Deal property suspected proceed of crime	Not known	Melbourne Magistrates Court	Without conviction. Adjourned to 1 Aug 2018. To pay $2000.00 to the Court Fund. Forfeiture order made by consent. Order all Property/s seized be forfeited to the Minister and disposed of or otherwise dealt with according to the direction of the Minister.	4 Jul 2017
27.	Handle / received / retention of stolen goods	Not known	Melbourne Childrens Court	Without conviction. Charge(s) found proved and dismissed. Released upon Accused entering accountable undertaking starting on 23 Apr 2013 for a period of 6 months to 22 Oct 2013. To be of good behaviour	23 Apr 2013

[2022] AATA 5264

3 February 2022

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