Burton (Migration) [2018] AATA 4220 (27 August 2018)

Last Updated: 14 November 2018

Burton (Migration) [2018] AATA 4220 (27 August 2018)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Neihana Paora Burton

CASE NUMBER: 1803404

HOME AFFAIRS REFERENCE: BCC2017/4557385

MEMBERS: Jan Redfern (Presiding)



Michael Ison

DATE: 27 August 2018

PLACE OF DECISION: Melbourne

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 27 August 2018 at 2:58 pm.

CATCHWORDS

MIGRATION – Class TY Subclass 444 Special Category (Temporary) visa – cancellation under s.116(1)(e) of the Migration Act 1958 – whether applicant is or may be, or would or might be, a risk to the health and/or to the safety of the Australian community or a segment of the Australian community – assessment of risk in circumstances where the applicant has been committed on 12 charges, entered a plea of not guilty and granted bail – consideration of the operation of, and interaction between, various cancellation provisions in the Migration Act 1958 – ground for cancellation established – whether the power to cancel the visa should be exercised – consideration of the degree of hardship to the applicant and his family, the legal consequences of cancellation and the circumstances in which the ground for cancellation arose – decision set aside and substituted

PRACTICE AND PROCEDURE – Administrative Appeals Tribunal – where the Tribunal is constituted for the purposes of the proceeding by two members – disagreement between the members settled according to the opinion of the Presiding Member

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), ss 24Z(2)(b), 42

Bail Act 1977 (Vic), s 4E

Crimes Act 1958 (Vic), ss 27, 195H, 321M, 321P

Crimes Legislation Amendment (Public Order) Act 2017 (Vic) Criminal Procedure Act 2009 (Vic) ss 59, 97

Migration Act 1958 (Cth),ss 5(1), 5(d), 32, 82, 109, 116, 117(2),118, 140,148, 159, 198, 200,

371(3), 433(3), 501, 501CA

Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)

Migration Reform Act 1992 (Cth)

Migration Regulations 1994 (Cth), rr 1.03, 5.15A; Sch 2, cll 444.2, 444.511, 444.6,

600.213(1); Sch 4, PIC 4013

Social Security Act 1991 (Cth), s 7

CASES

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41

Cheryala v Minister for Immigration and Border Protection [2018] FCAFC 43 CIC Insurance Limited v Bankstown Football Club Ltd (1997) 187 CLR 384 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Gong v Minister for Immigration and Border Protection [2016] FCCA 561

IRG Technical Services Pty Limited v Deputy Commissioner of Taxation [2007] FCA 1867; (2007) 165 FCR 57 Kapene Te Amo (Migration) [2018] AATA 2214

Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40 Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1994) 183 CLR 273 MZAJA v Minister for Immigration and Anor [2017] FCCA 448

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179

Sachin v Minister for Immigration & Anor [2016] FCCA 2815

Shi v Migration Agents Registration Authority (2008) [2008] HCA 31

Singh (Migration) [2017] AATA 850

W157/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1536; (2001) 190 ALR 55

SECONDARY MATERIALS

Explanatory Memorandum, Migration Amendment (Character and General visa Cancellation) Bill 2014

Explanatory Memorandum, Migration Reform Bill 1992 and Migration (Delayed Visa Applications) Tax Bill 1992

Migration Amendment (Character and General Visa Cancellation) Bill 2014, Second Reading Speech, Hansard, House of Representatives, 24 September 2014

Procedures Advice Manual – PAM 3 ‘Act-based Visa Instructions – Criminal Justice Visas’ Procedures Advice Manual - PAM3 ‘General visa cancellation powers - Australia’s international obligations - Non-refoulement obligations’

Procedures Advice Manual – PAM3 ‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s 140)’

Procedures Advice Manual – PAM3 ‘s 501 - The character test, visa refusal and visa cancellation’

STATEMENT OF DECISION AND REASONS

INTRODUCTION

1. This is an application for review of a decision dated 8 February 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Special Category (Temporary)(Class TY)(Subclass 444) visa.
2. The applicant, Mr Neihana Paora Burton, is a 24 year old New Zealand citizen. He and his mother, Ms Justina Burton, migrated to Australia in 2001 when he was seven years old following his mother's marriage to Mr David Burton, who is an Australian citizen. He has spent his formative years in Australia and has two siblings who were both born in Australia as part of that relationship and are Australian citizens. The applicant has resided in Australia since 2001 but has made frequent trips back to New Zealand with his mother to visit relatives.
3. Since arriving in Australia the applicant has been granted several Special Category (Subclass 444) visas. A Special Category visa is a temporary visa available to New Zealand citizens permitting them to remain in Australia. The visa is for an indefinite period and expires when the visa holder leaves Australia. It is granted upon entry to Australia. The last time the applicant re-entered Australia and was granted a Special Category (Subclass 444) visa was on 22 October 2017.
4. The submissions by the applicant’s representative raise important issues about the operation of, and interaction between, various cancellation provisions under the Act and how they apply to New Zealand citizens who have been charged, but not convicted, with serious criminal offences. These issues are particularly difficult where those non-citizens have been long standing residents of Australia.
5. There have been an increasing number of these types of applications in recent years. For this reason, the matter was constituted to me, together with a Senior Member, to provide detailed consideration of the difficult issues raised for the assistance and guidance of both members and the Department.
6. Senior Member Ison and I do not agree with the ultimate outcome in this case. As the Presiding Member, my opinion is taken to settle the disagreement and my decision is the operative decision^[1]. These matters, which are not material to the critical issues that require determination on this review, are explained in more detail later in my reasons.

BACKGROUND

7. The applicant has been in immigration detention since the cancellation of his Special Category (Subclass 444) visa on 8 February 2018. He has been charged with 12 criminal offences, a number of which arise from the same set of circumstances. According to the applicant’s representative, the applicant’s criminal trial has been listed for hearing for 20 days commencing 27 May 2019.
8. The applicant does not have any criminal convictions but in 2015 he was involved in an incident which resulted in an adjourned undertaking to be of good behaviour for 12 months and $500 fine being imposed by the Magistrates’ Court of Victoria on 5 October 2016. In short, the applicant pleaded guilty to a single charge for the indictable then common law offence of affray^[2]. Other charges laid arising out of the incident were not pursued. No conviction was recorded and at the end of the adjourned period, the proceedings were discharged. Less than two months after those proceedings were discharged, on 23 November 2017, the applicant was charged with serious indictable criminal offences arising from incidents said to have taken place in October and November 2017. The applicant was released on bail by the Magistrates’ Court on the day of his arrest.
9. The delegate cancelled the applicant’s visa under s.116(1)(e) of the Migration Act 1958 (the Act) on the basis that the applicant’s continued presence in Australia ‘poses, or could pose, an unacceptable risk to the health and/or safety of the Australian community or a segment of the Australian community^[3]. The delegate relied on the pending criminal charges and the previous charge of affray in finding that the ground for cancellation was established. In considering the exercise of discretion, the delegate accepted that the applicant may face hardship but did ‘not foresee any major issues in him adjusting to life in New Zealand’ having regard to the existence of support networks there. The delegate noted the applicant would be limited in the visas that he could apply for if his visa was cancelled and that he may not be able to reapply for a visa for three years. In weighing all of the factors, the delegate concluded that the seriousness of the charges, including the previous charge which had been discharged, outweighed the other factors. The delegate therefore decided to cancel the visa.
10. The applicant lodged a review of this decision with this Tribunal and applied to the Department for a Bridging E (Subclass 050) visa pending his review. This application was refused. The applicant sought a review of the bridging visa refusal and on 27 February 2018, the Tribunal, differently constituted, remitted the matter for reconsideration with the direction that the applicant met the criteria for the bridging visa. The applicant, however, was not granted a bridging visa and on 23 March 2018 he was notified of the intention to refuse his bridging visa under s.501(1) of the Act on the basis of concerns about his character. He withdrew his application for a Bridging E (Subclass 050) visa.
11. On 18 March 2018, the Director of Public Prosecutions for the State of Victoria issued a Criminal Justice Certificate under s.148 of the Act certifying that the stay of the removal or deportation of the applicant was required for the administration of criminal justice in Victoria. Following the issue of such a certificate, the Minister may in his or her absolute discretion issue a Criminal Justice visa under s.159 of the Act, but did not do so in this case.^[4] The applicant will therefore remain in detention pending his criminal trial, unless he is either granted another visa or the cancellation of his Special Category (Subclass 444) visa is set aside by this Tribunal.
12. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
13. The applicant appeared before the Tribunal to give evidence and present arguments. He was represented by his lawyer who is a registered migration agent. The Tribunal also received oral evidence from Ms Justina Burton, Mr David Burton, his counsellor Mr Lehi Cerna, and youth worker, Mr Paora Te Pak. Prior to the hearing, the Tribunal conducted a directions hearing to discuss the issues in dispute and the preparatory matters required for the conduct of the hearing. The applicant’s lawyers were given access to documents from the Department’s file and the Tribunal wrote to the applicant inviting him to respond to certain adverse information. The Tribunal received written submissions and documents in relation to the contentious issues identified prior to the hearing. Following the hearing, the applicant’s representative provided updated information in respect of the criminal charges and the outcome of the committal hearing.
14. For the following reasons, I have concluded that the decision to cancel the applicant’s visa should be set aside.

RELEVANT LAW AND ISSUES FOR CONSIDERATION

15. Non-citizens from New Zealand may obtain permission to stay in Australia under a Special Category (Subclass 444) visa. The criteria for a special category visa are set out in s.32 of the Act and r.5.15A of the Migration Regulations 1994 (the Regulations)^[5]. The Special Category visa is a temporary visa permitting the holder to remain in Australia while the holder is a New Zealand citizen: cl.444.511 of Schedule 2 to the Regulations. This visa was introduced by the Migration Reform Act 1992 (Cth), which came into effect on 1 September 1994.
16. The visa is for an indefinite period but ceases to have effect if it is cancelled or if the visa holder leaves Australia: ss.82(1) and 82(8) of the Act.
17. Section 32 sets out the criteria for a special category visa and relevantly provides that the visa should be granted if the Minister is satisfied the applicant is a non-citizen, who is a New Zealand citizen and holds a New Zealand passport and is neither a behaviour nor health concern non-citizen.
18. Special Category visas may be cancelled in the circumstances set out in ss.109, 116 and 501 of the Act. Section 109 provides for cancellation where incorrect information is provided by an applicant, s.116(1) sets out the general grounds for cancellation of temporary visas and s.501 provides for cancellation on character grounds. Section 501 covers both temporary and permanent visas.
19. The applicant’s representative made submissions about whether it was appropriate for the delegate, and therefore the Tribunal, to proceed under s.116(1)(e) where criminal misconduct has not yet been established. Despite the fact that a Special Category visa is a temporary visa, it is for an indefinite period and operates like a permanent visa. It is submitted that the holders of permanent visas are not exposed to the risk of cancellation under s.116 and decision-makers must proceed under s.501 of the Act. Broadly speaking, the power under s.501 requires a more serious level of offending and a higher level of satisfaction about risk or the existence of misconduct. Accordingly, it is submitted the Tribunal should not be satisfied cancellation is warranted where criminal charges are unproven and the correct or preferable decision is for the cancellation to be set aside. It is also submitted that if the applicant is convicted he is likely to be sentenced to more than 12 months imprisonment and his visa will be liable to be cancelled under s.501 of the Act in any event.
20. There was no submission made that the Tribunal should adjourn the review pending the finalisation of the criminal proceedings. This is understandable given the criminal proceedings are unlikely to be resolved for some time. It is submitted the applicant will be significantly disadvantaged by the cancellation even if he is subsequently acquitted of the criminal charges. This is because the criteria relating to the grant of Special Category visas are said to operate in such a way that it is unlikely the applicant will be able to return to Australia in the foreseeable future, regardless of the outcome of his criminal trial.
21. In essence, the applicant’s representatives submit that even though there is power to cancel a Special Category visa under s.116(1)(e) where there are unproven criminal charges, in circumstances where a New Zealand citizen has resided in Australia for many years and has significant links with Australia, there is or should be a ‘higher threshold for cancellation’. The cancellation power under s.501 is available where there is proven criminal misconduct and should be the preferred source of power in a case such as this.
22. As noted in the decision of Kapene Te Amo (Migration) [2018] AATA 2214 there are two regimes under the Act which give the Minister power to cancel a visa where there is proven or alleged criminal offences or where there are character concerns.
23. Having regard to the facts of this case and the submissions made by the applicant’s lawyers, it is relevant to briefly describe the scope of the relevant cancellation provisions under ss.116(1)(e) and 501 to identify the key differences.
24. The cancellation decision which is the subject of the review was made under s.116(1)(e) of the Act. Subsection116(1)(e) provides that the Minister may cancel a visa if satisfied that:
    • (e) the presence of its holder in Australia is or may be, or would or might be, a risk to:
      • (i) the health, safety or good order of the Australian community or a segment of the Australian community; or
      • (ii) the health or safety of an individual or individuals.
25. This provision may be relied on by the Minister to cancel a temporary visa (such as a Special Category visa) where, for instance, there are pending criminal charges before the Courts or where the visa holder is convicted of offences which do not fall within the provisions of s.501 of the Act, as outlined below. The Department has issued guidance to decision-makers about the exercise of the discretion to cancel in Procedures Advice Manual 3 – PAM 3 ‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s 140)’. The Procedures Advice Manual 3 is known as ‘PAM3’ and provides guidance to decision-makers in respect of the interpretation and application of the Act, the Regulations, Ministerial Directions and legislative instruments under the Act. A permanent visa cannot be cancelled under s.116(1) of the Act: see s.117(2) of the Act.
26. In contrast, the Minister has discretion to cancel a temporary or permanent visa under s.501(2) of the Act if the Minister reasonably suspects the person does not pass the ‘character test’ and the visa holder does not satisfy the Minister otherwise. A person does not pass the ‘character test’ if they fall within s.501(6) of the Act. Subsection 501(6) relevantly provides:

Character test

(6) For the purposes of this section, a person does not pass the character test if:

• (a) the person has a substantial criminal record (as defined by subsection (7)); or

...

(b) the Minister reasonably suspects:

• (i) that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and
• (ii) that the group, organisation or person has been or is involved in criminal conduct; or

...

(c) having regard to either or both of the following:

• (i) the person's past and present criminal conduct;
• (ii) the person's past and present general conduct;

the person is not of good character; or

(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

• (i) engage in criminal conduct in Australia; or
• (ii) harass, molest, intimidate or stalk another person in Australia; or
• (iii) vilify a segment of the Australian community; or
• (iv) incite discord in the Australian community or in a segment of that community; or
• (v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or

...

Otherwise, the person passes the character test.

27. A visa holder will have a ‘substantial criminal record’ if he or she has been convicted of one or more crimes and sentenced to a term of imprisonment of 12 months or more, or to two or more terms where the total is 12 months or more: s.501(7) of the Act.
28. Subsection 501(3A) provides that the Minister must cancel a visa if the visa holder has a ‘substantial criminal record’ or has committed a sexually based offence involving a child. Notwithstanding this, there is a process where the former visa holder may apply for the cancellation to be revoked: s.501CA of the Act.
29. The cancellation power under s.116(1)(e) is enlivened if the Minister is satisfied the visa holder 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. It is also relevant to note that there are different review processes and consequences, depending on which cancellation power is used^[6].
30. The existence of the two cancellation regimes on ‘character’ grounds is acknowledged in the Department guidelines in PAM3 on s 501 – The character test, visa refusal and visa cancellation, which provide as follows at [3.2.4]:

When determining whether a case should be referred for cancellation under s501, consideration should be given as to whether any of the other general cancellation powers apply, as described in: PAM3 – Visa cancellation − General visa cancellation powers (s109, s116, s128 and s140).If more than one cancellation power applies in a particular case, the appropriate cancellation power can depend on the type of visa held and the whereabouts of the visa holder.

31. Section 118 provides that powers to cancel a visa under various provisions of the Act, relevantly ss.116 and 501, are not limited or otherwise affected, by each other.
32. Unlike s.501(3A), where the Minister must cancel a visa if the visa holder has a substantial criminal record, there is discretion whether to cancel visa under s.116(1)(e) even if the Minister is satisfied the visa holder is or may be a risk to the health, safety or good order of the Australian community or a segment of the Australian community. This is significant and demonstrates Parliament’s intention that the power to cancel, if satisfied the ground for cancellation exists, is not absolute or mandatory and requires the Minister, and the delegate or Tribunal, standing in the shoes of the delegate, to exercise the discretion having regard to relevant considerations. The discretion is broad but is informed by the subject-matter, scope and purpose of the Act^[7]. Relevantly, the Department has helpfully provided guidance to decision-makers about the factors that may be relevant to the exercise of discretion in PAM3–‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s 140)’.
33. In the present case, the applicant has been committed on 12 criminal charges but has not been convicted. The charges are unproven but their existence, together with the charge of affray, may be sufficient to establish the ground for cancellation under s.116(1)(e). If the ground is made out, there is discretion to cancel. The applicant’s representatives submit that his circumstances, as a New Zealander who ordinarily resides in Australia and has done so for many years from a young age, are significant. This is said to be like a permanent visa and, having regard to the circumstances of the applicant’s case, this should be taken into account when assessing whether the power to cancel is established. If the Tribunal finds the ground to cancel is established these matters are relevant to the exercise of discretion and are said to weigh heavily against cancellation and favour the cancellation being set aside to permit s.501 to be engaged if appropriate and warranted.
34. Having regard to the submissions made by the applicant’s representatives, the issues for consideration are:
    • (1) Whether the ground for cancellation under s.116(1)(e) of the Act exists and whether there is a higher threshold to establish the ground in the circumstances of this case?
    • (2) If the ground is established, how should the discretion be exercised? In particular, is it relevant that the applicant’s visa is a Special Category (Subclass 444) visa, he has been a long term Australian resident and he has not yet been convicted of any criminal offences?

CONSIDERATION OF CLAIMS AND EVIDENCE

35. As already noted, the Minister may cancel a visa under s.116 if he or she is satisfied that certain grounds specified in that provision are made out. 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 will include matters of government policy.
36. The questions for determination are, therefore, does the ground for cancellation exist and, if it does how should the discretion be exercised?

DOES THE GROUND FOR CANCELLATION EXIST?

37. The applicant’s visa was cancelled under s.116(1)(e)(i) of the Act on the basis that his presence in Australia is or may be, or would or might be, a risk to the health and/or to the safety of the Australian community or a segment of the Australian community.
38. The delegate concluded that it appeared the applicant ‘has a willingness and propensity towards serious criminal activity involving violence’ and ‘due to the serious nature of his charges’, the applicant’s continued presence in Australia ‘poses, or could pose, an unacceptable risk to the health and/or safety of the Australian community or a segment of the Australian community’^[8].
39. The Tribunal is not bound by the findings of the delegate^[9] and must consider this matter afresh based on the material and submissions before us. However I note, for completeness, that the conclusions drawn by the delegate are erroneous in two respects. First, the delegate referred to the risk as ‘unacceptable’. That is not the test under s.116(1)(e) of the Act and I therefore do not consider that it is necessary to establish there is an unacceptable risk to enliven the ground for cancellation under s.116(1)(e) of the Act.
40. Secondly, the finding that the applicant’s presence poses or could pose a risk to ‘the health of the Australian community or a segment of the Australian community’ is not borne out by evidence, the delegate’s findings or the guidance provided to decision-makers under PAM3 – ‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s 140)'. The commentary in PAM3 about the risk to the health of the Australian community or a segment of the Australian community suggests that this provision is aimed at public health risks and infectious diseases. For instance, it is noted in PAM3 that advice should be sought from the Health Policy area about whether health conditions other than Tuberculosis would constitute a risk to the Australian community. A further example of where cancellation may be considered is where a person advocates against Australia’s health interests by actively discouraging parents to participate in the Government’s immunisation program. The examples provided in PAM3 and the ordinary meaning of the words indicate that a risk to health is not intended to cover the situation where the Australian community or a segment of the community may be at risk of harm through unlawful behaviour.
41. There were no submissions made about these matters either before or during the hearing, nor was there evidence to support such a finding. I therefore find, for completeness given the finding of the delegate, that I am not satisfied Mr Burton’s presence is or may be a risk to the health of the Australian community or a segment of the Australian community. I also note that it is clear from the material provided and the submissions made, that the critical issue in dispute was whether the applicant is or may be a risk to ‘the safety of the Australian community or a segment of the Australian community’. Accordingly, I have proceeded on this basis.

Submissions of the applicant’s representatives

42. The applicant’s representatives submit that the Tribunal should not be satisfied that the ground for cancellation is established. The applicant has not been found guilty or otherwise convicted of criminal offences involving violence. He has pleaded not guilty to the criminal charges and was granted bail pending the consideration of those charges by the criminal court. The applicant has resided in Australia for 17 years without incident which indicates that his continued presence in Australia does not pose a risk to the safety of the Australian community.
43. There is evidence from the applicant that he has not been involved in criminal activities and the 2016 charges arose from his intervention in an altercation which was intended to stop further violence. It is submitted that even though this led to the charge of affray, the fact that the prosecution recommended a diversion order supports the applicant’s version of events.
44. There is also evidence that the applicant has contributed to the safety of the Australian community through his work in establishing the school based program called ‘Multipride’. This program was initiated to reduce racial violence and promote harmony within the school community and there is evidence this program has been adopted in a number of other Victorian schools. Evidence that the program has been adopted elsewhere suggests the program is effective and has been successful in promoting safety and harmony. Both these matters would support a finding by the Tribunal that the applicant’s presence does not pose a risk but rather is beneficial. While it is accepted the criminal charges which have been laid against the applicant are serious, the applicant’s representatives submits it would be ‘an unsafe use of administrative power to use the cancellation power conferred by s.116(1)(e) to initiate the onshore cancellation of a Subclass 444 visa held by non-citizen who has been ordinarily resident in Australia for more than a decade’^[10]. It is for the criminal courts to determine guilt and the Tribunal should ‘exercise extreme caution before undermining the rights of persons ordinarily resident in Australia for decades to contest unproven charges at trial’^[11].
45. These submissions were advanced in written submissions received prior to the hearing in response to particular issues raised by the Tribunal at a prehearing directions hearing. In summary, the applicant’s representatives submit as follows:
    • (1) It is relevant to consider Parliament’s intention in conferring on decision-makers the power to cancel under s 116(1)(e) of the Act. While a Special Category visa is a temporary visa, it is of indefinite duration and is therefore akin to a permanent visa.
    • (2) The Tribunal should have regard to the fact that holders of permanent visas are not exposed to the risk of cancellation under s.116(1)(e) of the Act. When legislation was introduced into Parliament in September 2014 it was acknowledged in the Minister’s second reading speech that cancellation of a permanent visa attracts a higher threshold because the consequences are so significant^[12]. The circumstances of a New Zealand citizen who has been a long-standing Australian resident is analogous to the circumstances of a permanent visa holder. As such, there is a higher threshold for cancellation in the circumstances of this case.
    • (3) In assessing the risk to the Australian community, the Tribunal should take into account the prospect that the applicant is likely to face a further cancellation process under s.501 if he is convicted. Given the seriousness of the outstanding charges, the applicant is likely to be sentenced to a term of imprisonment exceeding 12 months if he is convicted and his visa would therefore be mandatorily cancelled under s.501(3A) of the Act.
    • (4) If the cancellation of the applicant’s visa is set aside the potential risk to the Australian community, being the risk occasioned by the possibility that the facts alleged by the prosecution actually happened, would be limited in time and otherwise mitigated by the applicant’s strict bail conditions.
    • (5) As such, regardless of the outcome of the applicant’s criminal proceedings, his continued presence in Australia does not pose a risk to the health, safety or good order of the Australian community and the Tribunal should so find.

Analysis and findings

46. I do not accept the submission that the threshold to establish satisfaction about risk is higher or more onerous in the case of Special Category visas than for other temporary visas. The process of construing s.116(1)(e) begins with the statutory text but the text must be considered in its context^[13]. Objective discernment of the context may be made through extrinsic material, the legislative history and the purpose and policy of the legislation^[14]. However, extrinsic material ‘cannot be relied upon to displace the clear meaning of the text’^[15]. Subsection 116(1)(e) is clear in its terms. If Parliament had intended to apply a higher standard or to exempt Special Category visas from cancellation under s.116(1)(e), it could easily have done so. There is nothing in the Act, the Explanatory Memorandum or the Second Reading Speech to evince such an intention.
47. Relevantly, when Special Category visas were introduced, the Explanatory Memorandum noted that:

The Reform Bill therefore provides for the creation of a 'special category visa' which may be electronically issued on arrival in Australia. This will be applicable to persons who were previously exempt non-citizens, including New Zealand citizens. As far as New Zealand citizens are concerned, the new arrangements' will preserve the traditional travel facilitation provided under the Trans-Tasman Travel Arrangements. No prior authorisation for travel will be required and the electronic record of entry will be the visa. The benefit of this change is that exempt non-citizens will be brought within the simplified single visa system. They may also be able to be issued with a visa label prior to travel, where this would facilitate their travel arrangements. Finally, and most importantly, the holders of special category visas will be subject to the same controls as all other non-citizens in Australia and their obligations will be clearly set out in the Principal Act^[16]. [Emphasis added]

48. I accept that the nature of the visa and the impact of cancellation may be significant where a Special Category visa is cancelled. However, this is an issue that can and should be considered in the exercise of the discretion, not as part of the enquiry as to whether the ground for cancellation exists.
49. The question of whether the presence of a visa holder is or may be a risk to the safety of the Australian community or a segment of the Australian community is a question of fact. The task of the Tribunal in respect of s.116(1)(e) is to assess the risk to the community based on all of the information available to the Tribunal: MZAJA v Minister for Immigration and Anor [2017] FCCA 448 at [15]. This information may include the existence of charges, the nature of those charges, whether the visa holder has pleaded guilty to those charges or whether the visa holder has been committed for trial, whether the visa holder has been granted bail and, if so, the basis of any conditions imposed and, finally, the personal circumstances of the applicant and how those circumstances may impact on any risks.
50. In assessing whether the ground is established, the Tribunal must have regard to the information and evidence available at the time of the review decision, including the circumstances of the applicant prevailing at that time: refer Shi v Migration Agents Registration Authority [2008] HCA 31.
51. Having regard to the provisions of the Act, the relevant authorities and the guidance provided in PAM3 –‘ General visa cancellation powers (s 109, s 116, s 128, s 134B & s 140)’, it is convenient to summarise the key principles in assessing this question as follows:
    • (1) There is no definition of 'risk' in the Act or Regulations and as such the ordinary meaning applies, namely the chance of injury, loss or hazard: refer generally, the Macquarie Dictionary, revised 3^rd edition, 2001.
    • (2) Subsection 116(1)(e) speaks of a 'risk' that the presence of a visa holder 'is or may be' or, alternatively, 'would or might be' to the safety of the Australian community, a segment of the Australian community or an individual or individuals. The first limb ('is or may be') is addressed to circumstances where the applicant is present in Australia and the second limb ('would or might be') is addressed to the circumstances where the applicant is outside of Australia: refer Gong v Minister for Immigration and Border Protection [2016] FCCA 561 at [41].
    • (3) The expression ‘safety’ has an ordinary meaning which includes ‘freedom from injury or danger’. The relevant risks from which the Australian community, or a segment of the community, are to be protected therefore include ‘injury, danger and other forms of harm (such as physical harm)’^[17].
    • (4) Where a visa holder has been convicted of serious violent criminal conduct, particularly if this is repeated, this may establish that there is or may be a risk to the safety of the Australian community or a segment of the Australian community under s 116(1)(e)(i). The safety of the Australian community or a segment of the Australian community speaks of a broad concept which connotes a level of repeated or serious violence that reaches beyond localised or individualised acts of violence. In contrast, s 116(1)(e)(ii) is directed to the risk to the safety of an individual or individuals and contemplates targeted violence, such as domestic violence.
    • (5) Subsection 116(1)(e) was amended in 2014 by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) to introduce the concept of 'may be' or 'might be' and it is self-evident from the plain English meaning of these words that the threshold to establish the ground for cancellation was lowered as a result of the amendment: refer to the Explanatory Memorandum to the Migration Amendment (Character and General visa Cancellation) Bill 2014, p.24 and Gong v MIBP at [40]. As such, it is also possible that there may be a risk to safety if a visa holder is charged, but not convicted, of serious violent criminal conduct. This is because there is the possibility that the facts forming the basis for the charges may be true.
    • (6) When charges are laid by the Police, it can be inferred the Police had some basis for laying the charges but it cannot be concluded, simply on the basis of the charges, that the charges are reasonable: refer Gong v MIBP at [54] and [55]. As noted in PAM3 ‘unlike a conviction, a charge cannot be equated with guilt’. I agree with this commentary.
    • (7) The concept of 'risk' has an element of futurity and in considering the question of whether a visa holder 'may be’ a risk within the meaning of s.116(1)(e), it is relevant to consider past conduct. This includes conduct which is the subject of criminal convictions and may include alleged conduct which is the subject of unproven criminal charges: refer Gong v MIBP at [41]. It may also include probative and credible evidence of conduct or activity that is not the subject of convictions or charges but which nonetheless raises concerns about whether a visa holder may harm members of the Australian community or a segment of the Australian community.
    • (8) The role of the Tribunal in assessing the question of risk for the purposes of s.116(1)(e) is challenging where there are unproven allegations of criminal misconduct before the Court. This is particularly so when those charges are very serious in nature. The questioning of an applicant, particularly if they are unrepresented, must be approached with considerable caution. Failure to warn an applicant about the privilege against self-incrimination may deprive an applicant of an important common-law privilege, which has been recognised in s.371(3) of the Act^[18].
    • (9) This makes it difficult for the Tribunal to test the strength of the charges or to engage in a meaningful way with any evidence provided about the prosecution. The Tribunal cannot undertake a meaningful assessment of the prospects or strength of the charges in the absence of, for instance, undertaking its own assessment of the evidence or having the benefit of the results of a concluded committal process were the Court finds there is a ‘prima facie’ case to answer on the basis of the evidence presented^[19]. To have regard to evidence contained in a criminal brief or Charge Sheets without giving the applicant the opportunity to respond would breach the rules of procedural fairness. On the other hand, raising contentious issues after giving the applicant the appropriate warning is likely to elicit a less than meaningful response and it would be unreasonable in the circumstances to draw a negative inference from such a response.
    • (10) As observed by Judge Smith in Gong v MIBP at [45], there is no requirement in s.116(1)(e) that there be a ‘determination, one way or the other, of the guilt of the visa holder and there is no requirement that the visa holder be compelled to give any evidence’^[20]. Indeed, this should be avoided and it is not the role of the Tribunal to conduct a quasi-criminal hearing to form a view about the strength of the prosecution case prior to trial. This is not only unfair, because of the potential exposure of the visa holder to self-incrimination, but is unwise. Tribunal members generally do not have the skills or experience to embark on such an exercise. Despite this, and as already noted, the laying of charges by Police may support a finding that there is a possibility the events which are the subject of the charges occurred.
    • (11) The more serious the charges, the more weight that should be given to the existence of those charges, even though they are unproven, when assessing whether there may be a risk to the community. It is notoriously difficult to assess future risk, even if charges are proven^[21]. However, where the consequences of the risk, if ultimately adverse, are likely to be serious, it may be appropriate to give the charges significant weight. In contrast, if charges are not serious, it may be appropriate to give unproven charges less weight in assessing risk.
    • (12) Notwithstanding this, evidence of charges will be but one of the matters that should be taken into account in making the assessment of whether there may be a risk to the community. All the available information must be considered, including, for instance, whether the visa holder is on bail. The fact that a Court, after considering the available evidence, refuses bail would carry considerable weight in assessing risk, although there may be a question about whether there is or may be a risk to the Australian community when the visa holder is incarcerated. If a Court or bail authority grants bail but imposes strict conditions, this may also carry considerable weight on the basis that the Court or bail authority has assessed the risk as sufficient to warrant conditions. On the other hand, the fact that bail is granted without condition would not, of itself, support a finding that applicant is not or may not be a risk because the test for risk is generally at a higher standard of ‘unacceptable risk’^[22].
    • (13) The circumstances of the visa holder will also be relevant. For instance, it may be significant if any risk is or will be mitigated or ameliorated by bail conditions, rehabilitation, ill health or infirmity or the nature of the visa.
52. In this case, the applicant has been charged with a number of serious offences. He has been committed on 12 charges. They comprise three charges of extortion with threat to inflict injury, a charge of attempted extortion with threat to injure, three charges of make an unwarranted demand with menace (these charges are based on the same facts as the extortion charges), two charges of theft, a charge of dishonestly assisting in retention of stolen goods, one charge of burglary and one charge of cannabis possession. The extortion and attempted extortion charges are very serious. They are indictable and carry a maximum sentence of 15 years imprisonment and 10 years imprisonment respectively^[23].
53. The can be no dispute that these charges are very serious. The Tribunal was not provided with the Prosecution brief and the only available information about these matters is contained in a summary taken from Victoria Police’s Law Enforcement Assistance Program (LEAP) data base which was provided by Victoria Police under summons. There is no evidence before the Tribunal about the provenance and reliability of the information contained in the summary provided. Given there is no forensic purpose in including the contents which, on their face, may be potentially prejudicial to the applicant’s criminal trial, I have therefore not recounted the contents of this summary in any detail. However, it is apparent from this summary that the charges involve the applicant allegedly approaching an individual on several occasions to extort money and goods using threats of violence. It is alleged that during this process several threats were made against the victim. Initially the visa holder was able to gain money from the victim however when this approach became ineffective it is alleged the applicant took items from the victim's home, some of which were subsequently located at the visa holder's residence by Victoria Police’^[24]. Victoria Police also allege that the applicant has an association with the Comanchero Motorcycle Club.
54. During the hearing the applicant claimed his right to silence when questioned about these matters but denied the charges and denied he had an association with the Comanchero Motorcycle Club.
55. While the charges are unproven and the applicant is yet to be tried, the alleged offences involve violence and the threat of physical harm to third parties. They are alleged to have occurred within 15 months of the affray charge and less than two months after the adjourned undertaking was discharged. The existence of the charges, the serious nature of the alleged offences and the fact that the applicant has been committed to trial should be given considerable weight when assessing the question of whether the applicant is or may be a risk to the safety of the Australian community or a segment of the Australian community.
56. I accept that the applicant has strict bail conditions. They include a surety of AU$100,000, daily reporting to the Cranbourne Police Station, a curfew from 9:00 pm to 6:00 am (except in the company of his parents) and a prohibition on attending licenced premises where alcohol is served. This surety was provided by the applicant’s grandfather. I also accept the evidence of the applicant that the surety given by his grandfather weighs heavily on him. Given these conditions, it is submitted that the Tribunal should be confident the applicant will not engage in any criminal conduct pending his trial. On one view, as contended by his representatives, this mitigates any potential risk. On the other, these strict bail conditions and the fact that the applicant is prohibited from approaching witnesses or his co-accused, suggests that the Magistrate, having reviewed the prosecution case, had sufficient concerns to impose these conditions.
57. The threshold for the granting of bail is ‘unacceptable risk’. This is a higher threshold for risk than required to engage the cancellation power under s.116(1)(e). In my view, the fact that such strict bail conditions have been imposed and that orders have been made about the applicant approaching witnesses or his co-accused, raises concerns about the potential risk rather than alleviates them.
58. The applicant’s representatives contend that the Tribunal should find that the applicant’s continued presence in Australia is not a risk but rather a benefit to the safety of the Australian community because of the applicant’s previous involvement with Multipride. In addition, his mother, Mrs Justina Burton, contends that the applicant’s involvement in attempting to break up the fight that resulted in the charges of affray also show her son’s presence is not a risk but a benefit to the safety of the Australian community.
59. I do not accept that Mrs Burton’s submissions about the events which are said have given rise to the previous charge of affray present a complete picture. There is no independent evidence about the circumstances that led to the charges. It is understandable that Mrs Burton seeks to advocate for her son but her view on what she believes happened is unlikely to be an objective account. The applicant told the Tribunal he could not recall whether he pleaded guilty to the charge of affray or not. There was some confusion in the submissions from the applicant’s representatives as they initially submitted the applicant was ordered to participate in a diversion program but later clarified the applicant pleaded guilty to the affray and was sentenced^[25]. On the facts before the Tribunal, the Magistrate did not accept the Victoria Police recommendation to order the applicant to participate in a diversion program. According to Court documents provided by the applicant’s lawyers, he was fined $500 without conviction on 11 October 2016, released on giving an undertaking and the matter was adjourned for 12 months with an order that the applicant was to be a good behaviour during the period of the adjournment. The applicant’s lawyers advise that that matter was discharged by the Court without appearance on 5 October 2017.
60. It is submitted that the applicant’s involvement in the affray was said to be motivated by a claimed desire to break up an altercation. Even if I accept the claimed motivation, I am not satisfied that the applicant was promoting safety in the Australian community by his involvement. If the prosecution was satisfied that the applicant was not at fault and was a ‘good Samaritan’, the charges would have been dropped rather than pursued. While the fact no conviction was recorded suggest the Magistrate did not consider the applicant’s offending to be serious, the applicant was charged and fined for a potentially serious offence. This does not establish that the applicant’s presence is a benefit rather than a risk to the safety of the Australian community. I therefore reject this submission.
61. I accept the applicant’s evidence about his involvement with Multipride and that this program, which was initiated by him together with other school colleagues when he was at school number of years ago, has been successful and is aimed at promoting racial harmony. I accept that this program may ultimately be of benefit to the safety of the Australian community. However, the applicant’s involvement in the Multipride program was number of years ago. On his own evidence the applicant has not been involved with this program in recent years. While the applicant’s previous involvement with the Multipride program is commendable this does not diminish the existence of the serious criminal charges. The applicant’s previous involvement in Multipride does not establish his presence is or may be a benefit to the safety of the Australian community, nor does it negate the possibility that his presence may pose a risk.
62. Having regard to all of the available evidence and for the reasons outlined above, I am satisfied that the applicant may be a risk to the safety of the Australian community or segment of the Australian community. In summary, the applicant has pleaded guilty to affray and within months of his good behaviour undertaking having expired, he is charged with serious criminal offences, a number of which involve threats of violence. This raises the possibility that the applicant may be a risk to the safety of the Australian community or a segment of the Australian community, even though he is on strict bail conditions.

Conclusion

63. 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 power to cancel the visa should be exercised.

CONSIDERATION OF DISCRETION

Principles and relevant considerations

64. Neither the Act nor the Regulations specify any mandatory considerations that should be taken into account when exercising the discretion under s.116(1)(e). The Minister has not issued any directions about the factors to be considered but the Department has developed guidelines in PAM3 –‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s 140)’.
65. I have had regard to the circumstances of this case, including matters raised by the applicant. I have also had regard to the Department guidelines set out in PAM3 –‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s 140)’. Unless government policy is unlawful or there are cogent reasons to depart from the policy, the Tribunal should have regard to relevant government policy. However, policy should not simply be applied without independent scrutiny and to do so would be an error of law: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 and Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179.
66. The PAM3 guidelines do not appear to be inconsistent with the Act, the Regulations or case law, nor was there a submission to this effect. They are produced by the Department and are comprehensive and useful. The guidelines cover such matters as:
    • (1) 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;
    • (2) the extent of compliance with visa conditions;
    • (3) the degree of hardship that may be caused (financial, psychological, emotional or other hardship);
    • (4) the circumstances in which the ground of cancellation arose;
    • (5) past and present conduct of the visa holder towards the Department;
    • (6) whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, whether indefinite detention is a possible consequence of cancellation and whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister's intervention;
    • (7) whether there would be consequential cancellations under s.140 of the Act;
    • (8) whether any international obligations would be breached as a result of the cancellation, and
    • (9) any other relevant matters.
67. I have therefore considered each of the factors set out in the guideline, in so far as they are relevant to the circumstances in this case, in exercising my discretion. Those matters, including any relevant submissions and evidence, are addressed below.

Purpose of visa and whether there is a compelling reason to remain in Australia

68. While I note that the applicant has frequently returned to New Zealand with his mother, I accept that the applicant’s purpose for remaining in Australia is to reside, as he has for the past 17 years, with his family. Accordingly, there is a compelling reason for him to remain in Australia and this weighs against cancellation.

Compliance with conditions and past and present conduct towards the Department

69. There are no conditions attaching to a Special Category (Subclass 444) visa^[26]. As such, this factor is neutral.
70. There is no evidence the applicant has behaved inappropriately towards the Department. This weighs against cancellation.

International obligations

71. There is no evidence, nor does the applicant make a claim, that the cancellation of his Special Category visa would breach Australia’s international obligations on non-refoulement. Accordingly, this consideration is neutral. However, for the reasons outlined later in my reasons that are more conveniently dealt with separately, I have identified the potential for there to be a significant impact on the applicant’s siblings if his visa remains cancelled. This impact is relevant to the Convention on the Rights of the Child (the CROC) and Department guidelines about how these matters are to be considered.

The degree of hardship that may be caused

72. I accept there will be hardship to the applicant if his Special Category visa remains cancelled. He will remain in immigration detention, even though he has been granted bail, pending his criminal trial. I accept it may be more difficult for the applicant to prepare for his criminal trial while in detention than if he is in the community. However, I note that individuals who are on remand and not bailed face similar difficulties in preparing for trial. I do not view the applicant’s detention as an undue impediment to him being able to properly instruct his legal representatives in respect of the criminal proceedings. This assumes the applicant continues to be detained in Victoria, where his criminal lawyers are located. I make this observation as there have been instances where a former visa holder is transferred to immigration detention interstate. I am not aware, nor was an issue raised about this by the applicant’s representatives.
73. I also accept the applicant will be separated from his family for an extended period while he is awaiting trial. His mother, stepfather and siblings can visit him in immigration detention, and have done so on a regular basis since his detention but this is no substitute for the day- to-day contact that both the applicant and his parents attested to during the hearing. The uncontested evidence is that the applicant is close to his family. He has lived at home with his family since arriving in Australia and both his mother and stepfather gave evidence that the family is very close. His siblings, who are 13 and 17 years old, attended the hearing. They remained in the hearing room for the majority of the time, except when they were asked to leave by the applicant’s mother, and they were visibly upset at various stages of the hearing. There is also evidence that the applicant assists his parents from time to time in looking after his siblings and driving them to school.
74. According to evidence from the applicant’s counsellor, Mr Lehi Cerna, the applicant has been diagnosed with anxiety and depression by his treating medical practitioner. Mr Cerna said he was concerned that if the applicant continued to be detained in immigration detention, his mental health may be adversely affected. He does not assess the applicant as at risk of suicide, but noted that the applicant reports sleeping and mood difficulties with outbursts of anger. He was concerned about the applicant’s continued welfare and well- being. I accept this evidence and find that the applicant’s continued detention and the prospect of his deportation after his criminal trial regardless of the outcome of the criminal proceedings, are likely to cause the applicant both psychological and emotional hardship.
75. If the applicant’s visa remains cancelled, he will be removed to New Zealand after his criminal trial is finalised. This will be the case regardless of the outcome of the applicant’s criminal trial. If the applicant is convicted and sentenced to a term of imprisonment, he will be removed after he serves his time. If the applicant is acquitted or the charges do not proceed or are withdrawn, the applicant will still be removed. I accept this will have a negative impact on both the applicant and his family.
76. There is evidence that the applicant has had no contact with his biological father in New Zealand since shortly after his birth. According to Mrs Burton, the applicant has two aunts who live in New Zealand but she is not close to her sisters and does not believe there are any relatives in New Zealand that her son could live with. The applicant was born in New Zealand and has returned with his mother on approximately 14 occasions over the past 17 years. He is not unfamiliar with New Zealand. He lived there when he was young and has relatives there. Against this, the applicant spent most of his formative years in Australia and was educated in Australia. He obtained his first job in Australia and has long standing friendships in Australia. His immediate family resides in Australia and his siblings and stepfather are Australian citizens. I accept there will be considerable psychological, emotional and possibly financial hardship to the applicant if his visa remains cancelled and he is removed. The impact of the cancellation will be particularly harsh if his family do not relocate to New Zealand to be with him. If they relocate, it will be easier for the applicant but difficult for his family.
77. Mrs Burton gave evidence that if the applicant’s visa remains cancelled and he is removed the whole family would move to New Zealand to be with him. She told the Tribunal that they would most likely sell their family home in Australia. Mrs Burton said that there was nothing in New Zealand for them as a family and she expressed particular concerns about the difficulties around securing employment and the cost of housing in New Zealand. She also said that it would be hard to find an affordable four bedroom home to accommodate their family in New Zealand as housing is more expensive than in Australia.
78. The applicant’s stepfather, Mr David Burton, also gave evidence to the effect that the family would relocate to New Zealand with the applicant. Mr Burton expressed similar concerns regarding the prospect of relocating to New Zealand. In particular, he told the Tribunal that it would be hard for the family and that he believes it would be difficult for him to get work in New Zealand.
79. The applicant’s siblings did not give evidence but I accept that if the family relocated to New Zealand to be with the applicant, there would be hardship to the children who are Australian citizens, were born and educated in Australia and no doubt have significant connections with Australia.
80. I accept the evidence of Mr and Mrs Burton that they would be likely to relocate to New Zealand if the applicant’s visa remained cancelled and he is removed. While there is no evidence before us to be able to assess Mr and Mrs Burton’s claims about the difficulty of finding employment and affordable accommodation, I accept that the family is likely to face hardship if they are separated from their Australian ties.
81. Having regard to these matters, I am satisfied that the applicant and his family will face significant hardship if his visa remains cancelled and he is removed. This weighs against cancellation.

Legal consequences of cancellation

82. It is submitted that this hardship and any forced separation, in the event the family relocate to New Zealand, will be exacerbated by the legal consequences of the cancellation. The applicant’s representative submit that the consequence of the applicant’s visa remaining cancelled is that he will be permanently excluded from a grant of a further Special Category visa. As already noted, s.32(2) provides that a person will only satisfy the criterion for a Special Category visa if he or she is ‘neither a behaviour concern non-citizen nor a health concern non-citizen’. Section 5 provides that a ‘behaviour concern non-citizen’ includes any person who has been removed or deported from Australia or removed or deported from any country: s.5(d) of the Act. Section 198 prescribes the circumstances in which unlawful citizens may be removed from Australia. Under s.198(1), an unlawful non-citizen may request to be removed from Australia, and they must be removed as soon as reasonably practicable. A request by an unlawful non-citizen under s.198(1) compels the Department to exercise its removal power. As such a ‘voluntary’ removal is an exercise of the s.198 power, it is a removal for the purposes of the definition of ‘behaviour concern non-citizen’.
83. It is therefore submitted that a New Zealand citizen who has had their visa cancelled will be unlawful and will necessarily be liable to be removed or deported within the meaning of s.198(1) unless the former visa holder is granted a bridging visa which would allow them to leave voluntarily. This is said to have the legal consequence that a non-citizen whose Special Category visa has been cancelled under s.116(1)(e) will not be able to return to Australia under this visa and will be permanently excluded from re-entry on the basis of a Special Category visa.
84. It is submitted that this will be the case even if the former visa holder has had their visa cancelled on the basis of criminal charges but is acquitted of those charges or the charges are otherwise discharged. The applicant’s representatives submit it is ‘unsafe’ for the applicant’s visa to be cancelled when the criminal charges against him are unproven and he is yet to be tried.
85. While the suggestion that such a decision is ‘unsafe’ is an exaggeration, there is merit to the submission that cancellation under s.116(1)(e) may be unduly harsh in the applicant’s circumstances for the reasons that follow.
86. First, the representative’s submissions about the combined effect of the s.32 criteria, the legal impact of the cancellation and the removal provisions under the Act have some force.
87. Section 32 relevantly provides as follows:
    • (2) A criterion for a special category visa is that the Minister is satisfied the applicant is:
      • (a) a non-citizen:
        • (i) who is a New Zealand citizen and holds, and has presented to an officer or an authorised system, a New Zealand passport that is in force; and
        • (ii) is neither a behaviour concern non-citizen nor a health concern non- citizen; or
      • (b) a person declared by the regulations, to be a person for whom a visa of another class would be inappropriate; or
      • (c) a person in a class of persons declared by the regulations, to be persons for whom a visa of another class would be inappropriate.
88. Subsection 5(1) of the Act defines a ‘behaviour concern non-citizen’ as follows:

behaviour concern non-citizen means a non-citizen who:

(a) has been convicted of a crime and sentenced to death or to imprisonment, for at least one year; or

(b) has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year if:

• (i) any period concurrent with part of a longer period is disregarded; and
• (ii) any periods not disregarded that are concurrent with each other are treated as one period;

whether or not:

(iii) the crimes were of the same kind; or

(iv) the crimes were committed at the same time; or

(v) the convictions were at the same time; or

(vi) the sentencings were at the same time; or

(vii) the periods were consecutive; or

(c) has been charged with a crime and either:

• (i) found guilty of having committed the crime while of unsound mind; or
• (ii) acquitted on the ground that the crime was committed while the person was of unsound mind;

(d) has been removed or deported from Australia or removed or deported from another country; or

(e) has been excluded from another country in prescribed circumstances;

where sentenced to imprisonment includes ordered to be confined in a corrective institution. [Emphasis in original]

89. ‘Removed or deported’ from Australia, in the definition of ‘behaviour concern non-citizen’ means removed under s.198 or deported under s.200 of the Act. A New Zealand citizen who has had their visa cancelled will be unlawful and will be subject to removal from Australia. Unless they have another visa, such as a bridging visa or, as in this case, a Criminal Justice Certificate, the former visa holder will be removed by the Department either forcibly or as a result of a request. The representative submits, and I accept, that an unlawful non-citizen who asks the Minister to be removed under s.198(1) and is so removed, as required under s.198(2), will be a person who is ‘removed or deported from Australia’ within the meaning of s.5(1)(d) and will thereby be a behaviour concern non-citizen.
90. In the applicant’s case, the Criminal Justice Certificate is likely to be revoked after his criminal trial is finalised or, if the applicant is convicted of the charges, once he has finished any sentence. The applicant will therefore be liable to removal after he serves his sentence if his visa remains cancelled.
91. The applicant’s representative submits that even if the applicant is acquitted, he will remain in immigration detention and will be an unlawful non-citizen until he is deported. He will not be able to depart Australia voluntarily unless he is granted a bridging visa on departure grounds. It is further submitted that, having regard to the previous decisions of the Department in relation to his applications for bridging visas, it is unlikely such a visa would be granted. If a visa is not granted, the applicant would nonetheless be required to leave Australia as an unlawful non-citizen. Accordingly, the applicant would fall within the definition of a ‘behaviour concern non-citizen’. If the applicant is not granted a bridging visa, this submission is correct.
92. If a person is a ‘behaviour concern non-citizen’, that person cannot satisfy the criterion in s.32(2)(a) and will only satisfy the criterion in s.32(2) if he or she falls within ss.32(2)(b) or (c). There are no ‘declared persons’ for the purposes of s.32(2)(b) and s.32(2)(c) applies to the limited circumstances set out in r.5.15A. Regulation 5.15A allows a New Zealand citizen to be granted a Special Category visa even though that person is a ‘behaviour concern non- citizen’ if the person has:
    • (1) been excluded from a country other than Australia in circumstances that the Minister does not consider warrant exclusion from Australia: r.5.15A(2) of the Regulations; or
    • (2) had a visa cancelled under s.501(3A) but the cancellation has subsequently been revoked: r.5.15A(3) of the Regulations.
93. Neither of these criteria applies to the applicant.
94. Having regard to these provisions, if the applicant’s visa remains cancelled and he is not granted a bridging visa (or some other visa) and he is removed from Australia, he will be unable to meet the criteria in s.32 in the foreseeable future, unless the provisions are amended. However, critical to this is the question of whether the applicant would be granted a bridging visa if he is acquitted or be removed in any event. Relevantly, s.198(5) provides that a non-citizen detainee who has not applied for a substantive visa is liable to be removed ‘regardless of whether they have applied for a bridging visa’. The applicant may be entitled to a Bridging E (Subclass 050) visa to depart Australia voluntarily but this may not be granted or he may be removed after the Criminal Justice visa is revoked.
95. Unfortunately, the Department guidelines in PAM3 do not provide any guidance on what the Department would do in such a circumstance. It is also relevant to note that the Migration and Refugee Division cannot utilise the procedure available to the General Division in proceedings under s.501 of the Act where the Minister is a party to the proceedings and is represented. In those proceedings, the Minister’s representatives could provide advice or guidance to the Tribunal about what would happen in such circumstances. As such, I accept that the outcome for the applicant, even if he is acquitted, is at best uncertain.
96. If the applicant cannot return to Australia under a Special Category visa, he may have limited prospects of returning through an alternative visa pathway.
97. It is submitted, and I accept, that while the applicant may be eligible to be granted a Remaining Relative (Subclass 115) visa 12 months after his removal from Australia the processing period for the processing of this visa may be up to 50 years. I accept based on information on the Department of Home Affairs website that there may be a lengthy delay in the processing times for such a visa^[27].
98. It is not apparent that the applicant would meet the criteria for any other visas other than a visitor visa, which is limited to visits of up to three, six or 12 months. The applicant does not have a partner in Australia and therefore could not return under a Prospective Marriage Subclass 300/ Partner (Migrant) Subclass 100 visa at present. Nor does he appear to meet the skilled migration requirements. As noted, the applicant may be eligible to meet the criteria for a visitor visa but there is a three year exclusion period under Public Interest Criteria 4013 (PIC 4013) in Schedule 4 of the Regulations, which applies as a primary criteria to all visitor visa applications under cl.600.213(1) of the Regulations. PIC 4013 may be waived if there are compelling circumstances affecting the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen^[28] but the applicant for the visa must establish that such circumstances exist.
99. In summary, I accept that the prospects of the applicant returning to Australia on a permanent or even temporary basis if his Special Category visa remains cancelled are speculative or at best uncertain. This weighs against cancellation.
100. Whether this will result in the ‘permanent’ relocation of the Burton family to New Zealand is difficult to assess at this point of time, suffice to say that the possibility of the applicant being indefinitely excluded from Australia will cause the Burton family hardship.
101. Mr Burton has a brother and sister who were born in Australia in December 2001 and August 2005 respectively. His siblings are Australian citizens and would be affected by the decision to cancel his visa. Relevantly, PAM3 states that in a situation where there are children in Australia whose interests could be affected by the cancellation the best interests of the children are to be treated as a primary consideration^[29]. The Australian Courts have held that not only are their interests as children to be assessed as a primary concern, but also their interests as Australian citizens^[30]. This is consistent with Australia’s obligation under the CROC.
102. Although the relationship is not a parental relationship, it is nonetheless a significant relationship. The applicant gave evidence that he provides financial and other contributions to his family, including helping his brother and sister get to and from school and supporting them at school events and functions. I accept that in this case it is in the best interests of the applicant’s brother and sister to have continued contact with him. If the applicant’s parents and siblings relocate with him to New Zealand this contact will continue. However, if the applicant’s siblings and parents remain in New Zealand I accept his siblings will be separated from their extended family, and in particular their grandparents, who reside in Australia. It is in the children’s best interests that they remain living in Australia with their parents and extended family as is currently the case.
103. Accordingly, this weighs against cancellation.

The circumstances in which the ground of cancellation arose

104. The most significant factor that weighs in favour of cancellation is the circumstances in which the ground for cancellation arose.
105. The applicant’s Special Category visa was cancelled in circumstances where the applicant had been charged with serious criminal offences, he had been previously charged with affray although no conviction was recorded, he has been granted bail pending his criminal trial and, while it is not referred to in the decision of the delegate but was before the delegate, the Victoria Police have concerns about what is considered to be an association with the Comanchero Motorcycle Club. Because this matter was not referred to by the delegate or raised in the notice of intention to cancel, it is unclear whether this formed part of the decision by the delegate to cancel. However, since the pending charges arise out of an alleged association, this is a matter which falls within this discretionary criteria and I have taken this concern into account when considering the exercise of the discretion.
106. The affray charge did not result in a conviction but the other charges are very serious. If established, the applicant’s representative contends, and I accept, that the applicant is likely to be sentenced to a term of imprisonment of 12 months or more. He would therefore be liable to have his visa cancelled under s.501(3A) and the Minister is in fact obliged to do so. It is submitted that having regard to a number of other relevant considerations the potential alternative pathway for cancellation under s.501 must be considered and, in the circumstances of this case, any decision to cancel should be deferred to allow the criminal process to take its course.
107. There is some merit to this submission in the particular circumstances of this case.
108. First, the charges are unproven, as are the claims made by Victoria Police about the applicant’s association with the Comanchero Motorcycle Club. There is a criminal process to establish the applicant’s guilt or innocence and it is not the Tribunal’s role to make assessments about this or the prospect of any criminal case against the applicant. As I have already observed, it is difficult for the Tribunal to make such an assessment where it does not have the necessary skill or expertise to opine on criminal liability and it does not have, and in any event cannot test, the Prosecution brief. An applicant is entitled to refuse to answer questions that may incriminate him or her to preserve their rights in respect of any criminal process. If such right is exercised, prosecution evidence will be unchallenged but in our view the Tribunal cannot infer guilt or make any negative inference from this. Accordingly, the unproven charges evidence the potential for risk of harm based on the inference that Victoria Police had a basis for laying the charges and that the applicant has now been committed for trial. However, unproven charges do not establish guilt or the truth of the underlying facts said to support the charges and this matter is yet to be determined through the criminal trial.
109. It is also relevant to note that any risk or uncertainty about whether the applicant is or may be a risk to safety will be more reliably determined after his criminal trial on 27 May 2019. This is because if the applicant is found guilty, the facts which are the basis for the prosecution will have been proven. If the applicant is sentenced to a term of imprisonment for 12 months or more as a result of his criminal trial, he will have a ‘substantial criminal record’ for the purposes of s.501(7) and his visa must be mandatorily cancelled under s.501(3A) in any event. If the applicant is found not guilty, this will be because the prosecution is unable to establish the facts on the basis of which the charges have been laid. It is these facts, and the possibility they may have occurred, that support the notion the applicant is or may be a risk to the safety of the Australian community. If these facts are not established, there is arguably no foundation for the concern about the risk to safety of the Australian community. If the applicant pleads guilty or is convicted of lesser charges and is sentenced to a period of imprisonment of less than 12 months, and/or if concerns remain about the applicant’s character or his alleged association with the Comanchero Motorcycle Club, the applicant’s visa may still be cancelled under s.501 for failure to pass the character test, relevantly, ss.501(6)(b), (c) or (d) or under s.116(1)(e) if further evidence becomes available.
110. Secondly, the applicant is on bail with strict conditions. The Court has assessed the risk based on the evidence before it, consideration of the prosecution case and the requirements under the relevant bail legislation and has adjudged that subject to the imposition of conditions, the applicant is not an unacceptable risk. Relevantly, the bail conditions require that the applicant report to the Cranbourne Police Station daily and he is prohibited from leaving his place of residence between 9:00 pm and 6:00 am except in the company of his mother and father, attending licenced premises where alcohol is consumed and associating with his co-accused. These conditions mitigate the risk.
111. In summary, the circumstances in which the ground for cancellation arose, being the criminal charges and Victoria Police allegations, weigh in favour of cancellation. However, the strength of this factor, given the charges and allegations are unproven, conditional bail has been granted and the applicant may be subject to cancellation under s.501(3A) if the charges are proven, moderates its weight.

Conclusion on the exercise of discretion

112. Considering the circumstances as a whole, the Tribunal concludes that the visa should not remain cancelled.
113. Several of the factors in the Department guidelines weigh against cancellation, in particular the hardship that will be faced by the applicant and his family and the possible consequences of the visa remaining cancelled. It is significant that these matters may arise even if the applicant is acquitted of the criminal charges or the charges are withdrawn, discharged or otherwise do not proceed. While the seriousness of the charges weigh in favour of cancellation, the risk is mitigated by the conditions of bail and the power of mandatory cancellation that is likely to be available to the Minister if the applicant is convicted.
114. On balance, and having regard to the particular circumstances of this case, I have concluded that the decision to cancel should be set aside, which would allow any cancellation decision to be considered after the outcome of the criminal trial is known, is the correct or preferable decision in this review.

DECISION

115. The Tribunal, as constituted, heard this matter and was provided with supplementary submissions and evidence by the applicant’s representative about the review, including updated information about the applicant’s criminal proceedings.
116. Under s.42(2) of the Administrative Appeals Tribunal Act 1975 (Cth), if the Tribunal is constituted for the purpose of the proceeding by two members, any disagreement between the members is to be settled in accordance with the opinion of the Presiding Member. Given I am the Presiding Member my opinion and, therefore this decision, is the operative decision of the Tribunal.
117. In this case, Senior Member Ison and I agreed that the ground for cancellation exists but do not agree in relation to the exercise of discretion. Senior Member Ison has taken the opportunity to explain the reasons why he has formed a different view about the discretion. In essence, Senior Member Ison gives the greatest weight to the circumstances in which the ground of cancellation arose. While acknowledging the factors against cancellation, including the hardship to the applicant and his family, he finds these matters are ameliorated by the matters set out in his written opinion. While I agree with some aspects of this opinion, I do not agree with his conclusions about the exercise of the discretion. However, in the interests of transparency, this opinion is to be provided to the applicant and is to be published, in the usual course, together with my decision
118. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

Jan Redfern

Deputy President

CORRIGENDUM

DIVISION: Migration & Refugee Division

CASE NUMBER: 1803404

MEMBERS: Jan Redfern (Presiding)



Michael Ison

DATE OF DECISION: 27 August 2018

DATE CORRIGENDUM SIGNED: 19 October 2018

AMENDMENT: The following correction is made to the Statement of Reasons of Senior Member Michael Ison:

1. The reference to “is a current member of the Comanchero MC” at paragraph [171] be amended to “he says is a current member of the Comanchero MC.”

.......................................

Michael Ison

Senior Member

















Any references appearing in square brackets indicate that information has been omitted from the statement of reasons pursuant to section 378 of the Migration Act 1958 and replaced with generic information

STATEMENT OF REASONS – SENIOR MEMBER MICHAEL ISON

DIVISION: Migration & Refugee Division

APPLICANT: Mr Neihana Paora Burton

CASE NUMBER: 1803404

HOME AFFAIRS REFERENCE: BCC2017/4557385

MEMBER: Jan Redfern (Presiding)



Michael Ison

DATE: 27 August 2018

PLACE OF DECISION: Melbourne

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

I certify that the following 231 paragraphs are my statement of reasons.



Statement made on 27 August 2018.

STATEMENT OF REASONS – SENIOR MEMBER ISON

BACKGROUND

1. I have had the benefit of reading a draft of the decision and reasons of the Deputy President.
2. I agree with the Deputy President in relation to the background to this application for review and the Deputy President’s findings in relation to whether the ground for cancellation of Mr Burton’s visa exists under s.116(1)(e) of the Act.
3. I wish to record at the outset that Mr Burton’s representatives, Samuta McComber Lawyers, provided comprehensive and helpful submissions to the Tribunal before, during and after the Tribunal hearing. These submissions were of considerable assistance to me in considering Mr Burton’s application for review.
4. The questions before the Tribunal are whether the ground for the cancellation of Mr Burton’s visa is satisfied and, if it is, how should the discretion the Tribunal then has to cancel, or not cancel, Mr Burton’s visa be exercised?

THE SPECIAL CATEGORY (SUBCLASS 444) VISA

5. Since 1 September 1994, when the Migration Regulations 1994 became operative,^[31] all non- citizens in Australia must hold a valid visa.
6. People from New Zealand arriving in Australia prior to 1 September 1994 were treated as exempt non-citizens under the Trans-Tasman Travel Arrangement which meant they could obtain Australian citizenship without first becoming a permanent resident. People from New Zealand arriving in Australia between 1 September 1994 and 26 February 2001 were granted a Special Category visa which entitled them to apply for Australian citizenship after meeting certain requirements.
7. From 27 February 2001, the Special Category visa granted to people from New Zealand arriving in Australia was changed with the effect that those visa holders were no longer the equivalent of permanent residents of Australia and could not apply to become Australian citizens on the basis of residency in Australia under that visa. In short, they needed to apply for and be granted permanent residency before being able to apply for citizenship.
8. This has led to two classes of Special Category visa holders from New Zealand in Australia. Those who arrived before 26 February 2001, whose entitlements are protected, and are therefore equivalent to permanent residents who can apply for Australian citizenship and those who arrived on or after 26 February 2001 who are temporary visa holders.^[32]
9. Mr Burton arrived in Australia in June 2001.^[33] He does not hold a protected Special Category visa in the sense referred to above and was most recently granted a Special Category visa on 22 October 2017.

DOES THE GROUND FOR CANCELLATION EXIST?

10. I find, for the reasons the Deputy President has stated, that the ground for cancellation of Mr Burton’s Special Category (Temporary)(Class TY)(Subclass 444) visa under s.116(1)(e) does exist.
11. In relation to the submissions of Mr Burton’s representatives in relation to this issue, I make the following additional observations.
12. Mr Burton’s representatives submitted in response to the NOICC on 24 January 2018:
    40. Further, we submit that it would be an unsafe use of administrative power to use the cancellation power conferred by s 116(1)(e)(i) to initiate the onshore cancellation of a subclass 444 visa held by a non-citizen who has been ordinarily resident in Australia for more than a decade.
    41. In that regard, we note that parliament, through the inclusion of s 117(2) of the Migration Act, specifically prohibited use of the cancellation power conferred by s 116 to initiate the onshore cancellation of a permanent visa and that it is only by virtue of the unusual nature of the subclass 444 visa – a temporary visa of indefinite duration – that a non-citizen who has been ordinarily resident in Australia since childhood and for over 15 years can face onshore cancellation under s 116.
    42. We consider the parliament’s inclusion of s 117(2) in the Migration Act 1958 reflects an intention to protect long-term residents of Australia (or those with a long-term right to reside in Australia) from onshore cancellation under s 116 and that the onshore cancellation of a subclass 444 visa held by a noncitizen has been lawfully resident in Australia for over 15 years is, on one view, contrary to parliament’s intentions.^[34]
13. Mr Burton’s representatives made further submissions to the Tribunal on this issue in their written submissions dated 27 April 2018:
    30. The Minister’s Second Reading Speech endorsing legislation introduced s 116(1)(e)(ii) into the Migration Act expressly acknowledges that the cancellation of a permanent visa attracts a higher threshold because the consequences of cancellation so significant. The Applicant submits that the consequences of cancellation for a New Zealand citizen ordinarily resident in Australia for almost two decades bear far greater resemblance to the holder of a permanent visa than a temporary visa holder.
    31. The Applicant submits that it is therefore consistent with the intention of both the Minister introducing the amending legislation, and the Parliament that passed that legislation, that a higher threshold for cancellation applies to a citizen of New Zealand who, despite residing in Australia on a permanent basis from is two decades since the age of seven, remains technically a temporary visa holder.
    32. In the Applicant’s submission, this higher threshold applies the stage of considering whether to exercise a discretion conferred by s 116(1)(e) to cancel a visa.^[35]
14. The proper approach to statutory interpretation where the words of a statute are plain and unambiguous has been expressed by a plurality of the High Court as:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. [footnotes omitted]^[36]

15. I can find no words in s.116(1)(e) or related provisions that supports the proposition advanced that there is a higher threshold for s.116(1)(e) to be enlivened where the visa being cancelled is a Subclass 444 visa because such a visa is akin to a permanent visa.
16. As the Federal Circuit Court noted in Gong:^[37]

38. Sub section 116(1)(e) was repealed and substituted by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth). Prior to that amending legislation, sub-s.116(1)(e) was engaged by risk to the health, safety or good order “of the Australian community”, and the amendment effectively added the words “or a segment of the Australian community”. In addition, sub-s.116(1)(e) was previous engaged with the visa holder’s presence in Australia “is, or would be, a risk” and the amendment change this to “is or may be, or would or might be, a risk”. ...

40. Both parties relied on the various parts of the Explanatory Memorandum circulated in respect of the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth). There, it was explained (at [13]) that this change is sought “to lower the threshold of this cancellation ground, so that it exists where there is a possibility that the person may... be a risk ... as well as where there is demonstrated to be an actual risk of harm”. With respect to the careful argument presented by both counsel, the fact that the amendment lowered the threshold is as plain as pikestaff and the statement to that effect in the Explanatory Memorandum is unhelpful in, if not irrelevant to, the construction of sub- s.116(1)(e).

17. In the circumstances of Mr Burton’s application the plain words of s.116(1)(e) do not invite the construction submitted by Mr Burton’s representatives. If the Parliament had intended to afford Special Category (Temporary)(Class TY)(Subclass 444) visa holders the ‘protection’ of s.117(2) then Parliament clearly had the opportunity to do so, including when Parliament considered and passed the 2014 amendments to the Act. The only proper construction available is that the Parliament chose not to afford Subclass 444 visa holders the ‘protection’ of s.117(2).
18. The lowering of the threshold for decision makers to be satisfied that the ground for cancellation of a visa exists under s.116(1)(e) was expressed by the Federal Circuit Court in Gong in the following manner:

41. ... 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 not have to be ... any direct, solid or certain foundation before the power to cancel the 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).

19. The reasoning in Gong was accepted and followed by the Federal Circuit Court in Howard^[38] where the threshold in s.116(1)(e) was found to be satisfied in circumstances where the visa holder had not been charged with any criminal offence but the decision maker relied on findings made against the visa holder by a foreign court in civil proceedings conducted in the visa holder’s absence.
20. I find that in Mr Burton’s circumstances the ground for cancellation of his Subclass 444 visa is made out. Mr Burton has previously pleaded guilty and been sentenced without conviction in 2016 to the common law charge of affray, in the circumstances a crime of violence. Mr Burton has subsequently been charged with 12 criminal charges in relation to a 2017 incident including three charges of blackmail and three charges of extortion with threat to inflict injury and a charge of attempted extortion with threat to inflict injury, which are crimes of apprehended violence. Mr Burton has now been committed by a Magistrate to stand trial on those charges.
21. I find these circumstances are sufficient to meet the low threshold in s.116(1)(e) that Mr Burton ‘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 and safety of an individual or individuals.
22. As that ground does not require mandatory cancellation of a visa under s.116(3), I must proceed to consider whether the power to cancel the visa should be exercised.

Consideration of discretion

Principles and relevant considerations

23. I agree with the Deputy President in relation to the matters the Tribunal must consider when deciding whether to exercise the Tribunal’s discretion under s.116(1)(e) of the Act to cancel Mr Burton’s Special Category (Temporary)(Class TY)(Subclass 444) visa or not. Those considerations are set out in paragraph [66] above and the context to their consideration is set out in paragraph [65] above.

The purpose of the visa holder’s travel to and stay in Australia including whether the visa holder has a compelling need to travel to or remain in Australia

24. Mr Burton most recently returned to Australia from New Zealand on 22 October 2017. The purpose of his travel to and stay in Australia is to continue his life in Australia with his family.
25. While the term ‘compelling’ is not defined in PAM3 for this purpose, I take it to have its ordinary meaning of demanding attention or demanding interest or being forceful.^[39]
26. Mr Burton gave evidence about his history and family ties in Australia, including his primary and secondary schooling, leaving part way through year 12 and then obtaining a Certificate III in Transport and Logistics. He also told the Tribunal he commenced a Certificate IV in Transport and Logistics, but the education provider he was studying at closed down before Mr Burton obtained the Certificate IV.
27. Mr Burton also told the Tribunal about his work history since leaving school which was supported by letters of support from colleagues and employers from ACM Parts, Joeys Tree Services, Progressive Fencing and J L Hand Fencing. By way of example, the proprietor of J L Hand Fencing in Warrnambool wrote:

I have known Neihana since 2012 through a family friend. Neihana is a terrific kid, I took him under my wing initially for work experience. He was an excellent worker, the youngest of my employees. He worked hard and was always on time. Neihana is quite a big lad, he stands about 6ft 5 and towers over many people including myself but I have never once seen him raise a hand or even his voice towards anyone in a negative way to be honest he is actually a humble kid.^[40]

28. Mr Burton started a new job on 7 February 2018 just before his visa was cancelled on 8 February 2018, and he was subsequently placed in immigration detention on 15 February 2018.
29. I am satisfied Mr Burton does have a compelling need to travel to or remain in Australia. Mr Burton and his immediate family have resided in Australia since 2001. Mr Burton has lived with his family throughout most of his time in Australia. He gave evidence that at one point he worked for JL Hand Fencing in Warrnambool for an extended period as he had an aunt living there. Since the age of seven, he has grown up in Australia, completed his education in Australia and entered the workforce in Australia.
30. The evidence of Mr Burton’s parents is that he is an integral and much loved member of the family unit with a daily presence in family life and that their family is very close. I accept this evidence. In these circumstances, I accept that Mr Burton has a forceful need, amounting to a compelling reason, for wanting to come to and remain in Australia.
31. There is clear evidence before the Tribunal, referred to in more detail below, that the Burton family wishes strongly to remain in Australia with Mr Burton, but if Mr Burton is required to depart Australia they intend to relocate to New Zealand to keep their family unit together. While this reduces the weight I have given to this consideration because it moderates Mr Burton’s need to remain in Australia, I do note that many of Mr Burton’s extended relatives are in Australia, including his grandparents who attended the Tribunal hearing to support Mr Burton.
32. I find this consideration weighs against the cancellation of Mr Burton’s visa and I give this consideration some weight.

The extent of compliance with visa conditions: whether the visa holder has otherwise complied with visa conditions now and on previous occasions

33. The Subclass 444 visa does not have any conditions attached to or imposed on it.^[41]
34. I find this consideration is neutral and does not weigh in support of or against the cancellation of Mr Burton’s visa.

The degree of hardship that may be caused to the visa holder and any family members including whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision

35. I will address this consideration in two parts. Firstly, I will address the degree of hardship continued cancellation of his visa may cause to Mr Burton and then I will address the degree of hardship continued cancellation of Mr Burton’s visa may cause to Mr Burton’s family.

Hardship to Mr Burton – in immigration detention

36. Mr Burton has resided in Australia since he was seven years of age and gave evidence that he has completed most of his schooling in Australia and has worked in several full time jobs prior to being detained. With Mr Burton’s family and friends in Australia I accept Mr Burton’s evidence that he is well established in Australia.
37. Mr Burton gave evidence that his biological father remains in New Zealand but he has not spoken to him since he was about five years of age. Mr Burton told the Tribunal that he comes from a large extended family but does not know any of his remaining relatives in New Zealand, and that the only time he goes back to New Zealand is for family funerals.
38. As noted above, Mr Burton provided the Tribunal with 32 letters of support which comprised nine letters from family, 11 letters from members of his church, community organisations and sporting clubs, six letters from former employers and six letters from friends and associates.^[42] The letters attest to Mr Burton’s good character and the esteem in which each author holds him. They represent a broad cross section of the community in terms of the authors’ apparent ages, backgrounds and how they came to know Mr Burton.
39. By way of example, a family friend, Mr Faauuga Tanielu, wrote:

I came to know Neihana and his family more than 15 years ago, when Neihana be-friended my son. My son at the time was struggling to make friends amidst being severally (sic) bullied by older kids. Neihana remained vigilantly loyal at his side, regardless of concerns to his own safety and ostracising from his peers.

Over the years I have been blessed to observe Neihana’s transition from child, teen to the great young man he is today, a young man who was and still is dedicated to hard work and independence, always striving to remain employed fulltime, so he can assist in providing financial support for his family.

Neihana is the glue that keeps his family intact, his love and dedication is what drives this amazing quality in him.^[43]

40. The hardship Mr Burton will experience if his visa remains cancelled will occur initially as he will remain in immigration detention pending the trial of the criminal charges against him, despite having been granted bail. Mr Burton’s representatives confirmed to the Tribunal that his criminal trial is listed for hearing in the County Court of Victoria for 20 hearing days commencing on 27 May 2019.^[44]
41. This is significant. At the time of this decision it will be approximately nine months until Mr Burton’s criminal trial is listed to commence. He has been granted bail and demonstrated a detailed knowledge of his conditions of bail, which as the Deputy President noted are extensive. Mr Burton’s evidence is that in the 82 days he was on bail prior to his detention he complied with all conditions of his bail, including reporting daily to police. Mr Burton provided a copy of the record of his bail attendances showing he reported daily to police from 25 November 2017 to 15 February 2018.^[45] There is no information before the Tribunal that Mr Burton did not comply with any bail condition. I accept Mr Burton’s evidence in relation to his bail.
42. If Mr Burton’s visa does not remain cancelled, in the ordinary course of events, he will be released from immigration detention. He will then live in the community under the conditions of his bail, until the outcome of his criminal trial is known.
43. Mr Burton told the Tribunal he had been suffering from anxiety and depression and was assessed in October 2017 by a counsellor, who had Mr Burton complete a written test. Mr Burton described the medication he used to take and the medication he now receives in immigration detention. Mr Burton told the Tribunal he got anxious from having to deal with ‘stuff’ in his life including what job he wants to have, worrying about his mum being sick and wanting to help her and worrying about the criminal charges. I did not find Mr Burton’s evidence about his mental health particularly detailed or convincing, although I do accept that Mr Burton suffers from mental health illnesses.
44. Mr Burton’s representatives submitted to the Tribunal:
    53. The Applicant has been diagnosed with anxiety and depression by his treating medical practitioner.
    54. The Applicant’s treating medical practitioner has also indicated that the Applicant’s continued detention in immigration detention will have an adverse effect on his psychological health.
    55. The Applicant’s treating counsellor has expressed concern about the consequence of the Applicant’s continued detention in immigration detention and/or deportation from Australia.
    56. It is submitted that the adverse effect on the Applicant’s mental health is a matter which weighs significantly against the cancellation of the Applicant’s visa.^[46] [footnotes removed]
45. In support of these submissions Mr Burton’s representatives provided letters dated 15 January 2018 and 9 February 2018 from Mr Burton’s treating medical practitioner, Dr Michael Chan^[47] and 9 February 2018 from his counsellor, Mr Lehi Cerna,^[48] who is a registered counsellor but not a psychologist or psychiatrist or otherwise qualified medical practitioner. Mr Cerna also gave oral evidence to the Tribunal. I did not find the medical evidence particularly strong or probative about the impact, clinically, being held in immigration detention would or is having on Mr Burton as it was based on the two very short hand written notes from Dr Chan referred to above and the Tribunal did not have the benefit of hearing evidence from Dr Chan. I did find Mr Cerna’s evidence about Mr Burton’s mental health very helpful, particularly as his views are based on having seen Mr Burton for many counselling sessions over an 18 month period.
46. Dr Chan wrote on 15 January 2018:

[Mr Burton] is suffering with anxiety depression since October 2017... .^[49]

47. Dr Chan wrote on 9 February 2018:

I feel Mr Burton should not be placed in a detention centre as his mental state is unstable at present. He suffers with severe anxiety depression and is undergoing treatment for his depression ... . He is also undergoing psychological counselling with Mr Lehi Cerna for his alcohol and mental state.^[50]

48. Mr Cerna told the Tribunal that he has been counselling Mr Burton since approximately November 2016, initially for anger management counselling as a result of an earlier court case. In that time Mr Cerna told the Tribunal he has had approximately 16 to 20 counselling sessions with Mr Burton, with initially weekly and then fortnightly sessions, a seven to eight week gap between sessions, and then further weekly and then fortnightly sessions. Mr Cerna said he last had a counselling session with Mr Burton just before Mr Burton was placed in immigration detention.
49. Mr Cerna gave evidence that he was contacted by Mrs Burton and her son directly and is aware of Mrs Burton’s mental health issues, but does not have any medical referral in relation to those issues. He gave evidence that if Mr Burton continues to be detained until his criminal trial, he has concerns for Mr Burton’s mental health in the context that he assesses that Mr Burton is very vulnerable to feeling guilt over the impact his current situation is having on his family, who are very close.
50. Mr Cerna told the Tribunal his assessment is that Mr Burton experiences depression which escalates when he believes his actions cause others concern, particularly his mother. Mr Cerna stated he does not assess Mr Burton as at risk of suicide, but stated Mr Burton reports he has sleeping and mood difficulties with outbursts of anger. Mr Cerna said he has not observed any of these outbursts of anger during his sessions with Mr Burton but is concerned about the toll that Mr Burton’s mental health will have on his physical wellbeing. Associated with that, Mr Cerna stated, is a lack of sleep and lack of motivation that you would expect to see in someone with depression and anxiety.
51. Mr Cerna wrote in his letter of 9 February 2018:

Mr Burton has been diagnosed by his GP with depression and insomnia. As his treating counsellor, I am concerned about his mental health and the effects of being away from his family may bring (sic), particularly how it may place him at risk of harm if detained and prevented from having family support, medication, and access to his frequent councelling (sic) sessions.

52. I accept that Mr Burton is experiencing psychological and emotional hardship as a result of being placed in immigration detention and being separated from his family, who I accept are a particularly close-knit family.
53. I note that based on the medical and related evidence before the Tribunal Mr Burton’s mental health illnesses arose prior to Mr Burton being placed in detention but are being exacerbated by his detention. I also note the medical and related evidence referred to above includes references that Mr Burton is receiving counselling for, what appear to be, alcohol abuse and anger management issues.
54. In the ordinary course of events Mr Burton will be able to maintain telephone and internet contact with his family whilst in detention and they will be able to visit him regularly, at least while he is detained in Melbourne. I am aware the Department not infrequently relocates detainees to other detention centres, often to an interstate centre, although no submissions were made about this on Mr Burton’s behalf prior to this decision. I am not aware of the operational need the Department has for such movements, which presumably occur at considerable expense, or how often they occur. There is no information before the Tribunal to indicate that Mr Burton will be relocated to a detention centre further from Melbourne. If that was to occur, I do not think it is controversial to assume it would add to the concerns that Dr Chan and Mr Cerna have expressed for Mr Burton’s mental and physical health. In that regard I note that each immigration detention centre provides detainees with access to doctors, medication and counselling services. I have not given this consideration any weight as in Mr Burton’s circumstances it is mere speculation on my part.
55. I accept the access to family, medical and other support Mr Burton will have in detention is not the same as Mr Burton would have living at home with his family and that this will cause him some hardship. However, I do not accept Mr Burton will be isolated from emotional and medical support to the extent Mr Cerna has assumed above and I do not accept, to the extent that it is implicit in Dr Chan’s short letters, that Mr Burton cannot receive appropriate medical and counselling support whilst in immigration detention.
56. Balanced against these considerations is that Mr Burton is a 24-year-old adult who has lived apart from his family in the past (when he was working in Warrnambool, although the duration of that period is not clear) and will likely do so again in the future, eventually presumably leaving the family home at some point. Ms Laraine Burton, who does not identify her relationship to Mr Burton, wrote in a letter of support dated 14 January 2018:

When Neihana left school to find work, as a New Zealander by birth he was not entitled to obtain the work start or any other programs for training. Relatives and friends assisted through these difficult times, by finding casual work but, as most people were small business owners they could not give him full-time employment even though, they acknowledge him as a very hard worker. It is only through determination and hard effort and dilligence (sic) that he has found consistent employment and more recently a stable position that will require him to be trained and be able to travel to remote areas of Australia. This being termed as fly in, fly out situation (sic).^[51]

57. Ms Laraine Burton is noted on Mr Burton’s 15 December 2017 undertaking of bail (his first revised bail conditions) as the person who provided Mr Burton’s AU$100,000 surety that he would comply with his bail.^[52] The certified order from the Magistrates’ Court confirms the surety for Mr Burton’s bail on 15 December 2017 was provided by Ms Laraine Rae Burton. This means Ms Laraine Burton must have attended Mr Burton’s bail hearing (as she had to sign the undertaking) and indicates to me that Ms Laraine Burton was very familiar with Mr Burton’s circumstances when she wrote her letter of support less than a month later.
58. For clarification only, Mr Burton was first granted bail by the Magistrates’ Court of Victoria on the day of his arrest, 23 November 2017. A copy of that undertaking of bail was not provided to the Tribunal, but Mr Burton’s evidence is that it was considerably more restrictive than his current conditions of bail. Mr Burton says his bail conditions were then revised on 15 December 2017 to be less restrictive. Mr Burton’s undertaking of bail was renewed at an interlocutory hearing in his criminal proceedings on 1 March 2018. A partial copy of that order was provided to the Tribunal.^[53] The Tribunal cannot tell from that incomplete copy who acted as surety for Mr Burton’s compliance with those conditions of bail, but Mr Burton gave evidence that his grandfather acted as his surety, which I accept.
59. I refer to Ms Laraine Burton’s letter of support for illustration only, as Mr Burton did not give evidence about the position she refers to. Mr Burton’s evidence to the Tribunal is he has lived out of home before to obtain work, but at one point he did say he had lived with his parents and siblings the whole time he has lived in Australia. Mr Burton’s stepfather told the Tribunal Mr Burton does not regularly attend Church as the rest of his family do. This demonstrated to me that Mr Burton has some independence and ability to successfully both make his own decisions and live outside the family unit.
60. I do not find that Mr Burton’s independence as an adult cancels out the hardship that he is experiencing as a result of being placed in immigration detention. I have accepted he is particularly close to his family, and at the time of being detained was living with his family and is suffering hardship as a result of being separated from his family. I am merely placing the hardship Mr Burton is experiencing in this regard in the broader context of all of the evidence before the Tribunal in relation to Mr Burton’s circumstances, rather than confining myself to a particular narrative presented to the Tribunal about those circumstances.
61. I find that Mr Burton is experiencing hardship in immigration detention through the separation from his family, friends and familiar surroundings, which is exacerbated by pre-existing mental health conditions. This consideration therefore weighs against the cancellation of Mr Burton’s visa and on the evidence before the Tribunal of Mr Burton’s particular circumstances, I give this some weight.

Hardship to Mr Burton – if deported from Australia to New Zealand

62. Mr Burton will also experience hardship if his visa remains cancelled and he is deported from Australia to New Zealand. I discuss the prospect of that occurring in the consideration of the mandatory legal consequences of Mr Burton’s visa remaining cancelled below.
63. When the Tribunal asked Mr Burton what he would do if he had to return to New Zealand, whether he would contact extended family there, Mr Burton replied that he was not too sure what he would do as he would be there alone. Mr Burton had earlier told the Tribunal that most, if not all, the relatives he knew of or had met in New Zealand had died.
64. As will become evident below, Mr Burton’s parents both gave evidence that they will move their family to New Zealand if their son has to leave Australia. I accept that evidence.
65. Even if Mr Burton’s family relocate to New Zealand, I accept that Mr Burton will suffer some hardship having to re-start his life in New Zealand. That may be no straightforward matter for a 24-year-old, even though Mr Burton is not married, does not have a partner or children and there is no evidence before the Tribunal of Mr Burton having significant financial commitments such as a mortgage over a property or personal loan to buy a car or similar.
66. The delegate in their decision letter noted that Mr Burton had returned to New Zealand 14 times since first coming to Australia in 2001.^[54] Mr Burton thought it may have been 13 times but was not sure. I accept what is stated in the delegate’s letter as the Department has access to visa holders’ movement records in and out of Australia. This means Mr Burton has returned to New Zealand, on average, every 16 months since 2001 and the evidence before the Tribunal is that Mr Burton returned from his most recent visit to New Zealand on 22 October 2017.
67. A youth worker from the Centre for Multicultural Youth, Mr Te Paki, gave evidence about Mr Burton and also provided a letter of support.^[55] Mr Te Paki told the Tribunal about his and the Centre’s work with young Maori and Pasifika people, and that he met the Burton family in around 2005 when their families attended the same Church of Jesus Christ of Latter-day Saints. Mr Te Paki told the Tribunal he had recently re-connected with the family when the Burton’s came to him for support at around the time the NOICC was issued in December 2017.
68. Mr Te Paki told the Tribunal if Mr Burton was released from detention then he would provide a mentoring role for Mr Burton, support the Burton family and provide links for Mr Burton to Maori elders and culture. Mr Te Paki felt Mr Burton was genuinely participating in the programs offered by the Centre for Multicultural Youth, evidenced by Mr Burton attending even when Mr Te Paki could not.
69. Mr Te Paki impressed me as a clearly positive influence in Mr Burton’s life, although a relatively recent one, being less than six months at the time of the Tribunal’s hearing. Perhaps one of the few positives for Mr Burton if he was forced to leave Australia is that in New Zealand he could more easily reconnect with his Maori heritage and become more deeply immersed in Maori culture than he can in Australia.
70. In Mr Burton’s circumstances of being a frequent visitor to and very familiar with New Zealand, still having family there, being a young man with no long term relationship or parenting commitments or known financial commitments in Australia, who will be supported by his parents and siblings moving to New Zealand, he is better placed than many to make a potentially successful new life in New Zealand.
71. This consideration weighs against the cancellation of Mr Burton’s visa because relocation to New Zealand will still cause Mr Burton some hardship, as noted above.
72. However, Mr Burton’s particular circumstances that I have described above significantly ameliorate the hardship Mr Burton would otherwise suffer from the ongoing cancellation of his visa if that required him to move to New Zealand to live. In Mr Burton’s circumstances I give this consideration only moderate weight against cancellation.

Hardship to Mr Burton - while his criminal proceedings are pending

73. There is one other matter I should comment on in regard to this discretionary consideration. Mr Burton’s representatives submitted:
    39. Ultimately, it is our submission that it is a matter for the criminal courts and their processes to resolve the charges against our client which, at this time, remain unproven.
    40. Further, we submit that it would be an unsafe use of administrative power to use the cancellation power conferred by s 116(1)(e)(i) to initiate the onshore cancellation of a subclass 444 visa held by non-citizen who has been ordinarily resident in Australia for more than a decade.

...

43. In the above circumstances, we submit that the decision-maker should exercise extreme caution before undermining the rights of persons ordinarily resident in Australia for decades to contest unproven charges at trial.^[56]

74. These submissions were made in support of the argument that the threshold issue of there being a ground to cancel Mr Burton’s visa was not made out. For the reasons the Deputy President and I have set out above, the Tribunal did not accept the submissions in that context.
75. I consider the submissions are also relevant to the present discretionary consideration because in essence they go to the hardship that Mr Burton will suffer. They go to the hardship Mr Burton will suffer because they reflect an argument that if Mr Burton’s visa remains cancelled he will be removed from Australia irrespective of the outcome of his criminal proceedings. As Mr Burton’s representatives later submitted, in the context of the mandatory legal consequences of cancellation, if Mr Burton’s visa remains cancelled he will be removed after the conclusion of his criminal trial even if he is acquitted of all charges and even if all of the charges filed against him were withdrawn and do not proceed to trial at all.^[57]
76. The natural conclusion to this argument is that this would visit a particular hardship on Mr Burton, being his exclusion from Australia for reasons of criminal charges which ultimately did not proceed or did not lead to a finding of guilt against Mr Burton. The result of that exclusion would be, in the view of Mr Burton’s representatives, that he will not be able to obtain another Subclass 444 or possibly any other visa, at least for three years, to return to Australia.^[58] I address those possible outcomes in the mandatory legal consequences of cancellation consideration below.
77. My reading of the submissions of Mr Burton’s representatives is that the safest course of action for the Tribunal in the view of Mr Burton’s representatives is to set aside the cancellation of Mr Burton’s visa and allow the criminal proceedings to run their course at which time the decision maker will know on what basis they are proceeding when re- considering the cancellation of Mr Burton’s visa.
78. I accept that being detained after being granted bail and complying with those conditions of bail may add to the hardship Mr Burton is experiencing by being detained, although Mr Burton did not give direct evidence about this and the weight I find I can give this consideration is only modest. It is stating the obvious to say that the migration law is separate from the criminal law and the detention of unlawful non-citizens, even when they have been granted bail after being charged with criminal offences, is an intended outcome of the migration law. The point I am making here is that there is additional hardship for Mr Burton and this is relevant to this consideration.
79. Mr Burton’s representatives also submitted that if he is convicted of the offences brought against him ‘as he has not served any meaningful time incarcerated on remand’^[59] he is likely to be imprisoned for a term of equal to or greater than 12 months which would trigger the mandatory cancellation of his visa under s.501(3A) of the Act. Even in the event of Mr Burton being convicted but not sentenced to imprisonment for 12 months or more, or at all, Mr Burton’s representatives submitted he is likely to be subject to another visa cancellation process under s.116(1)(e)(i) or s.501(6)(c)-(d)(i) which are, amongst other matters, the criminal conduct considerations of the s.501(6) character test.^[60]
80. I find these submissions speculative and have given them little weight.
81. As we have seen from the discussion of the threshold issue of whether there was a ground to cancel Mr Burton’s visa, s.116(1)(e) has been intentionally modified by Parliament to set the threshold for the consideration of the cancellation of relevant visas at a very low level.
82. Decision makers, including the Tribunal, should exercise that discretion carefully when the threshold ground is made out and they are considering the discretion to cancel a temporary visa in circumstances where the filing of criminal charges against the visa holder form part of the potential reason for the cancellation. The reasons for this are obvious. While the criminal charges are pending the visa holder has a privilege against self-incrimination, which properly asserted will limit any meaningful evidence about the circumstances of the charges and therefore limits the findings that the Tribunal can make about those circumstances, at least while maintaining procedural fairness to the applicant.
83. This does not mean a visa should not or cannot be cancelled in circumstances where criminal charges are pending or that it would be unsafe for a decision maker, including the Tribunal, to proceed at that point. To take that approach would undermine the intent of Parliament. It is plain to me that it was Parliament’s express intent that decision makers consider the cancellation of temporary visas at the point of criminal charges. The Second Reading speech, provided to the Tribunal by Mr Burton’s representatives, that introduced the Bill amending s.116 in 2014 confirms as much:

Consistent with community views and expectations, the Australian government has a low tolerance for criminal, noncompliant or fraudulent behaviour by noncitizens. Entry and stay in Australia by noncitizens is a privilege, not a right, and the Australian community expects that the Australian government can and should refuse entry to noncitizens, or cancel their visas, if they do not abide by Australian laws. Those who choose to break the law, fail to uphold the standards of behaviour expected by the Australian community or try to intentionally mislead or defraud the Australian government should expect to have that privilege removed.

To meet this expectation the government must not only have the ability to act decisively and effectively, wherever necessary, to deal with unlawful, fraudulent or criminal behaviour by noncitizens, but also have the legislative basis to effect a visa cancellation or refusal for those noncitizens.^[61]

84. I acknowledge that this could be read when referring to criminal behaviour as proven criminal behaviour. However, I do not think that is a reasonable reading of Parliament’s intent.
85. To illustrate my point, Parliament has expressed similar intent in other cancellation provisions of the migration law such as s.116(1)(g) and r.2.43(1)(p)(ii) where a prescribed ground for the cancellation of a Bridging E visa is that the visa holder has been charged with a criminal offence. A Ministerial Direction known as Direction 63 Bridging E visas – Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q) was issued on 4 September 2014 under s.499 of the Act. Direction 63 states in part at cl.4.3, where the principles of Direction 63 are set out, that:
    • (3) The Australian Government has a low tolerance for criminal behaviour by non-citizens who are in the Australian community on a temporary basis, and do not hold a substantive visa. ...
    • (5) ... Similarly, where Bridging E visa holders are charged with the commission of a criminal offence or otherwise suspected of engaging in criminal behaviour or being of security concern, there is an expectation that such Bridging E visas ought to be cancelled while criminal justice processes or investigations are ongoing.
    • (6) The person’s individual circumstances, including the seriousness of their actual or alleged behaviour, and any mitigating circumstances are considerations in the context of determining whether a Bridging E visa should be cancelled.
86. However, where at the time of decision (not in hindsight) the criminal charges forming the basis of the consideration of cancellation have been withdrawn or the visa holder has been acquitted, Direction 63 also goes on to state:

5(3) Where a Bridging E visa holder has been charged with an offence(s), but the charge(s) is/are dismissed, cancellation is not appropriate. Similarly, were a Bridging E visa holder has been charged with an offence has been found by a court to be not guilty or the charges are otherwise dismissed, cancellation is also not appropriate.

87. I refer to s.116(1)(g) and r.2.43(1)(p)(ii) by way of example only. They are not relevant to Mr Burton’s circumstances as he does not hold a Bridging E visa.
88. At the time of this decision, I do not have the benefit of knowing the outcome of Mr Burton’s pending criminal trial. Nevertheless, I am obliged to consider the cancellation of his visa.
89. The role of the Tribunal is to apply the law as it finds it, not as others believe it should be, even where in hindsight that law produces what some may consider unfair or unreasonable results. On the law before me I can find no basis to support the submission of Mr Burton’s representatives that to exercise the discretion in Mr Burton’s circumstances would be unsafe.
90. I also do not accept any implied arguments that such consideration infringes the visa holder’s right to a fair criminal trial, presumption of innocence or where they are held in immigration detention after having been granted bail, right to liberty. People charged with criminal offences are routinely remanded in custody and not denied a right to a fair trial. As noted above, the migration law is separate from the criminal law.
91. As the Federal Court observed in Gong:

... even on its broadest interpretation, sub-s.116(1)(e) does not impinge upon the presumption of innocence or any companion right such as the right not to be compelled to assist in the discharge of the prosecution’s onus of proof. ... There is no requirement in it that there be a determination, one way or another, of the guilt of the visa holder and there is no requirement that the visa holder be compelled to give any evidence.^[62]

92. In my view, this is the current migration law as the Parliament intended it.
93. I accept the impact of that law on the applicant in their particular circumstances is relevant when the Tribunal is considering its discretion to cancel the applicant’s visa or not, separate from the mandatory legal consequences of cancellation consideration. I have difficulty in giving the submissions of Mr Burton’s representatives relevant to this consideration much weight in Mr Burton’s particular circumstances.
94. Firstly, if Mr Burton is acquitted of all charges but his visa has been cancelled I accept he may still be required to leave Australia as he will remain an unlawful non-citizen and if he was forced to leave Australia in those circumstances it would be a very significant hardship for Mr Burton.
95. However, this is not the only potential outcome in Mr Burton’s circumstances. As Mr Burton is being held in immigration detention under s.189 of the Act the Minister is empowered under s.195A(2) of the Act to intervene and grant Mr Burton a visa if the Minister, acting personally,^[63] believes it is in the public interest to do so, even if Mr Burton has not applied for a visa. I accept the Minister is under no duty to consider the exercise of that power, even where requested to do so.^[64] I am also aware from a recent report from the Commonwealth Ombudsman that even where the Minister has intervened there can often be a considerable delay between the withdrawal of charges or acquittal and the Minister’s intervention.^[65] The relevant point though is that the outcome posited by Mr Burton’s representatives is neither certain nor the only outcome possible.
96. Secondly, I find the submissions about what may occur if Mr Burton is found guilty to be speculative. Much would depend on which charges he is found guilty of and the circumstances those offences are found to have occurred in.
97. Thirdly, I do not accept that Mr Burton is likely to be imprisoned for 12 months or more. Mr Burton, if found guilty, will likely be sentenced as a first time offender as he has no prior criminal convictions and may also be sentenced as a youthful offender, although this is not certain.^[66]
98. While I acknowledge Mr Burton has not spent any time on remand and his time spent in immigration detention does not amount to time already served under a criminal sentence in Victoria^[67] (if any) there is recent case law in Victoria that immigration detention is a relevant mitigating factor that has to be properly taken into account in criminal sentencing. As the Court of Appeal of the Supreme Court of Victoria recently noted in an appeal against sentence in a case where the appellant was found guilty of rape and indecent assault:

30. Significantly, however, the appellant, an Indian national, had been held in immigration detention for just under two years during the period between his arrest in 2015 and sentence in 2017... .

...

37. ... Fairness dictated that the sentence imposed upon him ought reflect the fact that the appellant had been kept in suspense, with charges hanging over his head for two years, in circumstances where he was deprived of his liberty during that period. In a broad and practical way, the fact of his detention needed to be reflected in the sentence imposed upon the appellant.^[68]

99. For these reasons I give the submissions on Mr Burton’s behalf that it would be unsafe, or as I infer, unfair to cancel his visa in circumstances where he may yet be acquitted of the pending criminal charges, but still required to leave Australia, little weight. On the evidence before the Tribunal I find these submissions are too speculative to enable me to give those submissions greater weight. However, I do accept that being detained after being granted bail and complying with his conditions of bail adds to the hardship Mr Burton is experiencing in immigration detention. This weighs against the cancellation of Mr Burton’s visa but I give this consideration only modest weight.

Hardship to Mr Burton’s family

100. It was obvious to me during the hearing before the Tribunal that Mr Burton’s parents, siblings and grandparents, who attended the hearing, were upset by his detention.
101. Mrs Burton described the contribution that her son makes to the family including doing chores, helping his siblings including giving them advice, dropping them off and picking them up from school, supporting their school, sporting and other activities and providing significant support and help to Mrs Burton when her health fails her from time to time.
102. Mrs Burton told the Tribunal she sees a haematologist because she has extremely low iron levels and requires regular blood transfusions, and also told the Tribunal she has thalassemia. One of the symptoms Mrs Burton reported experiencing as a result of her blood condition is dizziness with the effect she cannot drive at the time she experiences that symptom. She said that her son will drive his brother and sister to school and other events in her place to ensure they do not miss out when she cannot drive them.
103. Mrs Burton could not recall her haematologist’s name but said Dr Chan, the general practitioner she sees, refers her to the haematologist and the haematologist refers her to other doctors as needed.
104. The Tribunal noted that Dr Chan’s report about Mrs Burton’s health submitted to the Tribunal indicated she has long term depression and cardiac problems, but made no mention of a blood disorder.^[69] Mrs Burton could not explain this apparent omission and said Dr Chan is aware of her blood disorder and ongoing treatment for it.
105. Mrs Burton described to the Tribunal her history of mental health issues and other medical history, including a very recent gall bladder removal operation. Mrs Burton told the Tribunal she is not currently taking any medication but finds the separation from her eldest son very difficult.
106. Mrs Burton told the Tribunal if her son had to return to New Zealand then their family would most likely sell their home and move to New Zealand, but there was nothing there for them as a family, she was not sure where they would go, it is hard to find work there and the cost of housing in New Zealand she believes is more expensive than in Australia, meaning it would be hard to find the affordable four bedroom home that they would need. Mrs Burton told the Tribunal she has some sisters who live in New Zealand but she is not close to them. She did not think there were any relatives in New Zealand that her son could live with.
107. The Tribunal does not have any evidence before it to support Mrs Burton’s claims above or Mr David Burton’s claim below that work will be difficult to obtain in New Zealand, or Mrs Burton’s claims that housing is more expensive in New Zealand than Australia, but I accept that relocation will present the family with emotional and financial hardships.
108. Mrs Burton also described that her son being placed in immigration detention has been a real blow to their family, with the younger children needing counselling to cope with the circumstances. She told the Tribunal about her and the family’s regular visits to the immigration detention centre to see and support Mr Burton.
109. In her letter of support for her son, Mrs Burton wrote:

My youngest son starts [Victorian Certificate of Education] this year and there is nothing for him education wise that will match what he is excelling in here in Australia. He is doing VCE but already has a certificate 3 in gaming and media and has attended the Academy of Interactive Entertainment all whilst attending regular classes at school full time! He represented Australia and Victoria in China surely you will allow him to continue his education here in Australia without the strain of a broken family or the prospect of removal to a completely different country that he has no ties to??? (sic) My daughter has a grade point average of 3.60 out of a perfect 4.0 and nothing in New Zealand will help her maintain or increase that. The uplifting of my children at such a crucial time in their lives will have a devastating effect on them educationally and mentally. All my children have promising futures here in Australia. Neihana has aspirations of becoming financially independent enough to one day buy his own home and start a family of his own and currently saves what he can to provide for that when the time comes. My husband and 2 youngest are Australian citizens and we as a whole family would like to remain here as a whole family.^[70]

110. Having a child studying the Victorian Certificate of Education (VCE) can be stressful for families, not just the student. However, Mr Burton’s criminal charges will not be heard until 27 May 2019, and given a Criminal Justice Stay Certificate has been issued under s.148 of the Act,^[71] Mr Burton would not be required to depart Australia (if at all) until his criminal trial is completed, by which time his brother will have completed his VCE. I accept there will be some disruption to his sister’s studies but I don’t think it is particularly unusual for children to change schools during their education, even to schools interstate or overseas.
111. I accept that Mr Burton’s siblings have well established lives in Australia, and Mrs Burton’s evidence that they wish to remain in Australia. I also accept that relocating to New Zealand may be difficult for them, but I do not accept it is a place they have no ties to given it is their mother and older brother’s place of birth and the family has relatives there.
112. Mrs Burton presented generally as an open and honest witness whose credibility was not in doubt, although her evidence on her health conditions was at times unclear and her evidence on her family connections to New Zealand appeared affected by a desire to present to the Tribunal that her son and family have no meaningful connection to New Zealand to support their desire to remain in Australia as a family.
113. Mr Burton’s stepfather gave evidence that if his son had to return to New Zealand they would look to stay together as a family, but that it would be hard for them as a family as he thinks it would be hard to get work in New Zealand. Mr David Burton told the Tribunal he works at ACM Parts in Moorabbin, a national motor vehicle parts supplier, dismantling cars and selling their parts.
114. Mr David Burton also gave evidence consistent with that of Mrs Burton about her ill health, Mr Burton’s contribution to the family through his hands-on support with his younger siblings (particularly as Mr David Burton often has to work long hours), Mr Burton’s payment of board to help with food and utility costs, and his pride in his son’s achievements, such as the creation of the Multi Pride program during his son’s secondary schooling.
115. Mr David Burton told the Tribunal about Mr Burton’s limited involvement with the Church in recent years, but did say that Mr Burton had attended church with the family recently prior to being detained and had separately sought spiritual guidance from a bishop of the Church. Mr David Burton indicated the remainder of the family attend church weekly.
116. Mr David Burton presented as an honest, spontaneous witness who answered the Tribunal’s questions openly and consistently and I accept that having to find work in New Zealand at his age and stage in life may be a stressful situation for him.
117. I accept Mr and Mrs Burton’s evidence that if their son is required to depart Australia they would seek to relocate to New Zealand to keep their family together. It was clear from their evidence that this is not something the Burton’s wish to do. They wish to remain in Australia where they and their children have settled and well-established lives. Mr David Burton told the Tribunal that they partly own their family home under mortgage.
118. I accept that the ongoing cancellation of Mr Burton’s visa requiring his likely departure from Australia would cause the Burton’s significant hardship emotionally, psychologically and financially. The relocation of the family would presumably require the sale of their home in Australia and substantial financial expenditure. Although the Tribunal was not presented with specific or detailed evidence about these matters, this would occur in circumstances where the Burton’s will likely have already incurred and continue to incur presumably significant legal costs as a result of both the criminal and immigration processes that Mr Burton is being subject to.
119. Mr David Burton also faces the uncertainty of finding employment in New Zealand which I accept will be an additional stressor for him and his family, particularly for Mrs Burton. I am also concerned about the specific potential impact of the cancellation of Mr Burton’s visa on his siblings, but I discuss this below under the consideration of Australia’s international obligations.
120. I find that the cancellation of Mr Burton’s visa will cause the Burton family significant financial, emotional and psychological hardship given Mr and Mrs Burton’s evidence that they will seek to relocate to New Zealand to keep their family together. I give this consideration considerable weight against the cancellation of Mr Burton’s visa.

The circumstances in which the ground for cancellation arose including whether there were any extenuating circumstances beyond the visa holder’s control

121. As noted above, the delegate when cancelling Mr Burton’s visa found that Mr Burton:

... has the willingness and propensity toward serious criminal activity involving violence. Due to his demonstrated violent behaviour against the community previously and the serious nature of his current charges, I consider that his continued presence in Australia poses, or could pose, an unacceptable risk to the health and/or safety of the Australian community or a segment of the Australian community...^[72]

122. In a letter of support for her son dated 1 January 2018 Mrs Burton wrote:

Neihana is not the violent unlawful person has been portrayed as on paper, nor is he a person who gets in trouble with the law. ... The affray in 2016 was his first contact with police and that came about because he tried to break up a fight. He was given a recommendation for diversion by the police for that instant after they analysed the evidence and got witness statements. I think it is also worth noting that nobody was badly injured during that fight. That in itself should speak volumes about my son’s courage and commitment to keeping the peace in bad situations.^[73]

123. In a letter of support for his son dated 2 January 2018 Mr David Burton wrote:

[Neihana is] not a criminal type person either. Neihana is an honest and trustworthy person. I have seen the charges sheet and the things on there are not who Neihana is. He has never been in trouble with the law his whole life until he tried to break up that fight in 2016 but the police saw that he wasn’t at fault and they recommended he get a diversion.

124. As the Deputy President has noted above, affray is now a statutory offence in Victoria. It is not listed as a serious violent offence or violent offence for the purpose of finding someone to be a serious offender under the Sentencing Act.^[74] However, the common law offence of affray at the time of Mr Burton’s offending (1 August 2015) was an offence that attracted a maximum penalty of level 6 imprisonment (five years maximum).^7[75]A level 6 imprisonment offence was at that time (and continues to be) able to be heard summarily.^7[76]
125. Common law affray was a serious criminal offence of violence in Victoria, its constituent elements requiring the accused to be involved in the unlawful use of force in such circumstances that a bystander of reasonable firmness and courage might reasonably expect to be terrified.^[77]
126. Mr Burton’s representatives initially submitted he had been placed on and participated in a diversion program^[78] but confirmed before the Tribunal hearing that this was not the case.^[79] I find on the evidence before the Tribunal that Mr Burton pleaded guilty to a single charge of common law affray in the Magistrates’ Court of Victoria on 5 October 2016 and was sentenced to an adjourned undertaking to be of good behaviour for 12 months and fined AU$500, without conviction. Mr Burton complied with his undertaking to the Court and the matter was dismissed on 5 October 2017.
127. I also accept that Victoria Police recommended that Mr Burton, as a first time offender, be placed on a diversion program^[80] but this was not accepted by the Magistrate. This indicates to the Tribunal that the sentencing Magistrate considered Mr Burton’s participation in the affray serious enough to warrant more significant punishment than an order to participate in a diversion program, including the imposition of a fine, but not serious enough to warrant the recording of a conviction against Mr Burton.
128. When the Tribunal discussed the circumstances of this 2015 offence and his trial and sentencing in 2016, Mr Burton could not recall those circumstances with any precision. Indeed, Mr Burton could not initially recall who he was with at the time and could not recall at all whether he had pleaded guilty to the charge or not. Mr Burton could recall the outcome of the case.
129. When pressed by the Tribunal, Mr Burton could recall at least three of his friends who were present during the 2015 incident. Those friends included a friend from Mr Burton’s primary and secondary school days, [Person A]. [Person A] involvement in the affray is significant for reasons that I explain below.
130. Mr Burton blamed his poor recollection on his assertion that he was intoxicated on the night of the incident, and intoxicated to the point where his memory of the night was affected.
131. I did not find Mr Burton’s evidence in regard to the matters above very credible. I put my concerns about his inability to recollect key details to Mr Burton during the hearing. I found his recollection of matters to be selective and his explanation, perhaps not surprisingly, to be self-serving. The Tribunal did not have any official documents describing the circumstances of Mr Burton’s offending in 2015. This is not to say that I disregarded all of Mr Burton’s evidence in relation to these matters. The concerns I had with Mr Burton’s evidence on these matters were sufficient for me not to accept the evidence of Mr Burton or his parents that his plea to the charge of common law affray arose from Mr Burton merely acting to break up a fight his friends were involved in.
132. Mr Burton told the Tribunal the affray incident was captured on closed circuit television (CCTV) and that the police recommended him for a diversion program after viewing the footage. I do not accept this. Firstly, the police would have obtained a copy of the CCTV footage as part of their gathering relevant information. This usually occurs early in an investigation as it is a priority for police to secure any footage before it may be deleted or recorded over. Secondly, the police would have considered all the information they had gathered prior to laying charges. Thirdly, if the CCTV footage clearly showed or even indicated that Mr Burton was acting only to break up the fight I find it very unlikely that the police would have charged Mr Burton and even more unlikely that Mr Burton would have pleaded guilty to any charge. CCTV footage of Mr Burton trying to prevent the violence that occurred would have been powerful evidence for a defence to the charge I have found Mr Burton pleaded guilty to.
133. This is not to say that I find Mr Burton committed any specific act of violence. That evidence is not before the Tribunal. An affray charge can cover a very wide ambit of circumstances. In the United Kingdom case of R v Keys and others^[81] the Court noted:

The acts of individual participants cannot ... be taken in isolation. Even though a particular defendant himself never actually hit an opponent, never threw a missile, never physically threatened anyone, nevertheless, even if he participated simply by encouraging others and by shouting insults and threats, he thereby helps to promote the totality of the affray. He must accordingly take some share of the blame for the overall picture. It scarcely needs stating that the more he is shown to have done in promoting the affray, the greater must be his punishment.

134. What I find from the circumstances of the 2015 incident and Mr Burton’s subsequent plea and sentencing was that Mr Burton was involved in a fight that caused members of the public to be terrified, resulting in Mr Burton pleading guilty to common law affray and being sentenced accordingly, noting at the time he was sentenced he was a youthful first offender given he was 23 years of age at that time.^[82]
135. The other circumstances that led the delegate to cancel Mr Burton’s visa were the serious current criminal charges Mr Burton faces, the circumstances of which have been set out by the Deputy President.
136. As noted by the Deputy President above, on 24 July 2018 Mr Burton’s representatives confirmed that Mr Burton has been committed to stand trial in the County Court of Victoria for 20 hearing days starting on 27 May 2019, and that Mr Burton has formally pleaded not guilty to all charges.
137. Mr Burton’s representatives also provided the Tribunal with copies of court documents for Mr Burton’s co-accused, in the form of court suppression orders,^[83] which are referred to below. Those co-accused are: [Person A] ([omitted] charges at the time of the order), [Person B] ([omitted] charges) and [Person C] ([omitted] charges). All four accused, including Mr Burton, have been committed to stand trial at the same time.^[84]
138. I make no findings in relation to this information as all four have pleaded not guilty, Mr Burton has denied any association to the Comanchero MC and there was no oral evidence before the Tribunal to support a Victoria Police document on the Department’s file^[85] (which was put to Mr Burton under s.359AA of the Act as discussed below) that asserts [Person B] and [Person C] are members of the Comanchero MC.
139. In relation to Mr Burton being committed to stand trial, a committal hearing is a procedure under the Criminal Procedure Act 2009 (Vic) in which a Magistrate determines whether there is evidence of sufficient weight to support a conviction for the offences charged.^[86] It is not a finding of guilt but a preliminary step in part intended to ensure procedural fairness to the accused by, amongst other things, making sure the prosecution case against the accused is fully and properly disclosed including by giving the accused an opportunity to hear or read the evidence against the accused and to cross-examine prosecution witnesses prior to the accused’s actual trial.^[87]
140. This is significant as it means Mr Burton’s matter has proceeded beyond the mere charging stage and he has now, after a hearing before a Magistrate, been committed to stand trial for those offences on indictment.
141. The most serious charges Mr Burton has been committed to stand trial on are:
     • three charges of blackmail (making unwarranted demand with menace) – s.87 of the Crimes Act 1958 (Vic). Penalty level 4 imprisonment (15 years maximum);
     • three charges of extortion with threat to inflict injury – s.27 of the Crimes Act 1958 (Vic). Penalty level 4 imprisonment (15 years maximum); and
     • one charge of attempted extortion with threat to inflict injury – ss.27 (extortion), 321M (attempt) and 321P (penalties for attempt) of the Crimes Act 1958 (Vic). Penalty level 5 imprisonment (10 years maximum).
142. From the wording of the charges two of the three extortion charges and the attempted extortion charge appear to be alternate charges to the three blackmail charges as the dates of the alleged offences are the same. One extortion charge does not have a corresponding blackmail charge (of the same date) and so is not an alternate charge.
143. Mr Burton has also been committed to stand trial on:
     • Two charges of theft – s.74 of the Crimes Act 1958 (Vic). Penalty level 5 imprisonment (10 years maximum);
     • A single charge of dishonestly assisting in the retention of stolen goods – s.88(1) of the Crimes Act 1958 (Vic). Penalty level 4 imprisonment (15 years maximum);
     • A single charge of burglary – s.27 of the Crimes Act 1958 (Vic). Penalty level 5 imprisonment (10 years maximum); and
     • A single charge of possession of cannabis^[88] – the Tribunal did not receive the charge sheet for this charge. Normally such a charge would be under s.73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and the penalty depends on the quantity the accused had in their possession.
144. Mr Burton’s representatives conceded that the criminal charges pending against him are serious and significant:

It is accepted that the criminal charges brought against the Applicant are serious and significant charges.^[89]

145. The Tribunal summonsed information from Victoria Police, including a copy of the charge sheets and a summary of circumstances taken from Victoria Police’s Law Enforcement Assistance Program (LEAP). LEAP is the central database for capturing operational information which is recorded in a section of LEAP known as the Case Progress Narrative. Police record there what they have been told, observed, have done and need to do in relation to operational matters police become involved in. This means the LEAP information contains a relatively contemporaneous record of Victoria Police’s investigation into the allegations against Mr Burton.
146. Apart from the delegate’s summary of the alleged circumstances of Mr Burton’s alleged offending reproduced by the Deputy President above, I am able to provide little context to the allegations against Mr Burton. I have chosen not to reproduce the information in the LEAP report here because Mr Burton has asserted his privilege against self-incrimination, the charges arising from those alleged circumstances have not been heard and the allegations are being contested. This means Mr Burton could not respond to the more detailed alleged circumstances without compromising his privilege against self-incrimination. In that situation, I have considered the information in the LEAP report but given the specific circumstances alleged against Mr Burton in that document no weight where Mr Burton could not reasonably respond to those allegations. It is important to note that when Mr Burton was questioned by the Tribunal about those circumstances he did answer some of the Tribunal’s questions, as noted below. I have taken Mr Burton’s answers to those questions into consideration.
147. It is likely but not certain that the matters in the LEAP report, or some version of them, were disclosed at the committal hearing which usually occurs as a public hearing. The Tribunal did not have the benefit of receiving any of the Victoria Police information presented to the Magistrate at the committal, such as the prosecution summary in the hand-up brief.^[90] This means the Tribunal knows little about the committal hearing of Mr Burton and his co-accused other than they have each been committed to stand trial and in Mr Burton’s case that is on the charges noted above.
148. If the Tribunal had obtained or been provided with, for example, a copy of the summary of the Victoria Police allegations presented at the committal hearing, assuming it was a public hearing, then I may have set out more fully the alleged circumstances of Mr Burton’s alleged offending, for context and completeness only. There would have been no risk of that information prejudicing Mr Burton’s right to a fair trial as the Tribunal would have known what information had been made public during the committal. Ultimately, I have been able to make the findings I have without the availability of this information.
149. I view the charges as toward the upper end of seriousness for criminal charges, particularly the blackmail and alternate extortion charges. Those charges are alleged to have occurred in circumstances where the blackmail occurred with menaces and the extortion occurred with threats, which caused the alleged victim to fear for their safety and the safety of others. These are charges of serious apprehended violence. They are being heard on indictment in the County Court of Victoria.
150. If criminal charges are to be heard summarily or involve only property or dishonesty matters for relatively low monetary value or comparatively minor regulatory matters then I may not find those charges, even for indictable offences, to be significant or serious. That is not the case in Mr Burton’s circumstances.
151. As noted above, the Department file contained a document from Victoria Police which was not titled and the provenance of which was not clear from reading the document. That document set out the alleged circumstances of the charges in considerable detail.^[91]
152. The Department had issued a certificate under s.375A of the Act in relation to the document. The document reads as though it was prepared for the purposes of opposing Mr Burton’s initial bail application. The delegate did not refer to the document or the information it contained in their decision to cancel Mr Burton’s visa, despite the Department receiving the document prior to the cancellation of Mr Burton’s visa.
153. The untitled police document and LEAP narrative contained information potentially highly prejudicial to Mr Burton. The Tribunal gave Mr Burton a copy of the LEAP report. The Tribunal then separately put the information in the untitled police document, the LEAP report and the charges sheets to Mr Burton in accordance with the requirements of s.359AA of the Act, informing him each time of the relevance of the specific information to his application and the consequences each time of the Tribunal relying on the specific information, including each time that the information would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate to cancel Mr Burton’s visa. Mr Burton was invited to comment on the information each time.
154. Prior to inviting Mr Burton to comment on the information each time the Tribunal cautioned Mr Burton that anything he says to the Tribunal is recorded and is not protected from further disclosure. The Tribunal also acknowledged that Mr Burton has a right against incriminating himself, known as the privilege against self-incrimination each time. The Tribunal also informed Mr Burton each time that if he chose to rely on this privilege and not answer the Tribunal’s questions about the circumstances that gave rise to the criminal charges filed against him, then the Tribunal would make no adverse findings against him for doing so.
155. Mr Burton asserted his privilege against self-incrimination and declined to answer the Tribunal’s questions about the circumstances that led to him being charged as set out in the three separate documents, except for as noted below. I make no adverse findings against Mr Burton for declining to answer the Tribunal’s questions in these circumstances.
156. Mr Burton was also giving evidence to the Tribunal under an additional constraint. During the committal mention held on 26 and 27 April 2018 the Magistrate issued a proceeding suppression order under the Open Courts Act 2013 (Vic) prohibiting the disclosure of the name, current or future location or place of residence or image of a prosecution witness until 24 April 2023.^[92] The order refers to the witness only by reference to an affidavit filed.
157. Mr Burton’s representatives, based on an opinion provided by Mr Burton’s separate criminal law lawyers, submitted that the terms of the order were so imprecise that Mr Burton could not respond to any of the Tribunal’s questions about his criminal law charges. Mr Burton’s criminal law lawyers wrote to his representatives for this review stating:

My advice to Mr Burton is to ensure that he does not breach this order. I have advised him in these circumstances not to discuss the case against him as this would, in my view, place him at risk of breaching this order.^[93]

158. The Tribunal did not accept these submissions. While I accept that the suppression order prevents Mr Burton from answering any question that may cause the prosecution witness to be identified, it is not so broad as to prevent Mr Burton from answering any question about his pending criminal proceedings.
159. The suppression order also indicates the concern the Magistrate had, on the application of Victoria Police, for the safety of the witness as the grounds for the issuing of the order under the Open Courts Act were it was necessary to prevent a real and substantial risk of prejudice to the proper administration of justice and was necessary to protect the safety of the witness.^[94] The order is expressed to be of effect until 24 April 2023 (five years). I make no adverse findings against Mr Burton arising from the suppression order. As noted above, the order applies to the proceedings against Mr Burton and his three co-accused, being [Person A], [Person B] and [Person C].
160. In these circumstances, after putting the matters referred to above to Mr Burton under s.359AA of the Act and Mr Burton declining to comment on those matters, the Tribunal confined its questions to largely procedural matters related to the criminal proceedings against Mr Burton.
161. Mr Burton confirmed each of the charges, that one charge had been withdrawn but that 12 remained pending, his view that he thinks the extortion charges are alternate charges to the blackmail charges and confirmed he is pleading not guilty to all charges.
162. In considering this discretionary consideration it is not for the Tribunal to seek to run a quasi- criminal trial to determine the circumstances of the cancellation of Mr Burton’s visa. As Mr Burton exercised his right not to answer the Tribunal’s questions he could also not explain whether there were any extenuating circumstances beyond his control or whether this consideration was not relevant. Therefore, I find this aspect of this consideration to be neutral in that it neither weighs in support of nor weighs against the exercise of the Tribunal’s discretion to cancel Mr Burton’s visa.
163. There were several aspects of Mr Burton’s evidence to the Tribunal which require further comment and which I consider relevant to this consideration.
164. Firstly, the Victoria Police documents that were disclosed to Mr Burton under s.359AA of the Act allege the circumstances of Mr Burton’s alleged offending included that Mr Burton was acting as a ‘prospect’ of the Comanchero MC. That is, that his alleged offending occurred as part of a process that he has not yet completed to become a member. Mr Burton denied to the Tribunal being a member or having any association with the Comanchero MC or seeking to become a member or wanting to become a member.
165. The Tribunal did not have the benefit of oral evidence from Victoria Police and as noted above, given Mr Burton’s criminal charges are pending and he has a right against self- incrimination, the Tribunal did not pursue this matter further. I make no adverse findings against Mr Burton in this regard.
166. Mr Burton’s long-term friend [Person A] is alleged by Victoria Police to be a member of the Comanchero MC. [Person A] was not a witness before the Tribunal and did not provide a written statement, and I will exercise caution in my remarks about [Person A].
167. Mr Burton acknowledged to the Tribunal that he is aware that he is accused of committing the offences for which he is currently charged in company with [Person A] and others.
168. As noted above, when the Tribunal questioned Mr Burton about the 2015 affray, Mr Burton did not initially mention [Person A], then gave evidence that he may have been involved but he could not be 100% sure, and eventually, after reflection, recalled that [Person A] was involved in that affray. When the Tribunal questioned Mr Burton about his friendship with [Person A], Mr Burton told the Tribunal that [Person A] was a friend from his school days, known to Mr Burton’s other close friends from their school days and that [Person A] is a member of the Comanchero MC but Mr Burton didn’t think he was a member at the time of the affray. Mr Burton told the Tribunal he has continued his friendship with [Person A] since their school days and they generally catch up once a fortnight or so to have dinner together, get haircuts, go to the beach and ride jet skis together, with [Person A] ringing Mr Burton from time to time.
169. Mr Burton told the Tribunal he didn’t see [Person A] as often as his close friends, some of whom he saw daily, because [Person A] was regularly in and out of jail. Mr Burton’s evidence was that he thought [Person A] was imprisoned as a result of the affray. When the Tribunal asked why he thought this, Mr Burton replied he thought that because [Person A] , who is also friends with Mr Burton, told him that and he didn’t see [Person A] for a few months. Mr Burton also told the Tribunal that he had seen [Person A] wear a black leather vest with Comanchero MC patches, but only once, and Mr Burton could not recall where or when that was. Mr Burton said apart from this one time, [Person A] did not ever wear Comanchero clothing when he was with Mr Burton. Mr Burton told the Tribunal [Person A] also has Comanchero MC tattoos.
170. The Tribunal questioned Mr Burton about his confidence that he had only ever seen [Person A] wear Comanchero MC patched clothing once, given the imprecision of his evidence in relation to when or where that was and imprecision in relation to the details of the affray and the criminal process that followed. Mr Burton replied that he was intoxicated during the affray but was not so when he saw [Person A] wearing a Comanchero MC patched leather vest.
171. I accept Mr Burton’s evidence that he has a long-standing friendship with [Person A] who is a current member of the Comanchero MC, and Mr Burton’s acknowledgement that it is alleged the offences for which he is currently charged occurred in company with [Person A] .
172. Mr Burton gave evidence that his original bail conditions included a condition that he not attend the Nitro Gym in Hallam. Mr Burton told the Tribunal he is not a member of that gym, has not exercised there and has only been there once to pick up [Person A] , who Mr Burton says does exercise there. When the Tribunal questioned why that condition was imposed on his bail Mr Burton said that it was because Victoria Police believe it to be a Comanchero MC run gym.^[95] When the Tribunal asked Mr Burton what relevance that has to him he replied that part of his bail conditions state that he is not to associate with or go anywhere near people from the Comanchero MC. The Tribunal asked why that was a condition of his undertaking of bail, to which Mr Burton said he didn’t know and it was just a condition police put on his bail. The Tribunal asked Mr Burton why the police did that, to which Mr Burton replied that he did not know. When the Tribunal pressed Mr Burton further he replied that maybe it has got something to do with who they think Mr Burton is but that he didn’t know specifically why. The Tribunal asked whether it has something to do with Mr Burton’s friendship with [Person A] to which Mr Burton replied that he definitely thinks that would be the reason or the most likely reason.
173. Mr Burton’s mother has similar concerns. In her letter of support for her son, Mrs Burton wrote:

These alleged charges that he is facing are so far out of character of who he is that its unfathomable that we are talking about the same person? (sic) I fear that my son is being persecuted because of one friendship he developed in primary school.^[96]

174. In her oral evidence to the Tribunal Mrs Burton confirmed her concerns related to her son’s friendship with [Person A].
175. The bail conditions that Mr Burton gave evidence were imposed – namely, not to associate with members of the Comanchero MC and not to go to the Nitro Gym in Hallam – are not recorded on the undertaking of bail dated 1 March 2018, although as I noted above the Tribunal has only been provided with an incomplete copy of that bail order.
176. When an application for bail is made in the Magistrates’ Court of Victoria the conditions of bail, if bail is granted, are determined by the sitting Magistrate, not Victoria Police. What Mr Burton’s evidence indicates to me is that the Magistrate who imposed the conditions referred to by Mr Burton was sufficiently concerned about Mr Burton’s alleged association to the Comanchero MC as part of the circumstances of Mr Burton’s alleged offending, to impose quite strict and specific conditions to address that concern.
177. This is not a finding, and I make no finding, that Mr Burton is a prospect of the Comanchero MC or that Mr Burton has any association with the Comanchero MC, other than his friendship with [Person A] , because the evidence before the Tribunal in that regard was not able to be tested, due to the charges against Mr Burton remaining pending and being contested.
178. I also find the medical and related evidence relevant to the circumstances of the cancellation of Mr Burton’s visa. Dr Chan’s written evidence, submitted to the Tribunal on Mr Burton’s behalf, states that Mr Burton is being treated by his counsellor Mr Cerna ‘... for his alcohol and mental state’.^[97] Mr Cerna told the Tribunal he began to counsel Mr Burton from November 2016 because Mr Burton wanted support with more effective anger management because of a recent court case. As noted above, Mr Cerna gave evidence to the Tribunal that Mr Burton has told him during their counselling sessions that he is still prone to outbursts of anger, although Mr Cerna also gave evidence that in the many counselling sessions they have had together he has not seen one of Mr Burton’s outbursts.
179. I find that this consideration weighs in favour of the cancellation of Mr Burton’s visa and I give this consideration great weight.

The visa holder’s past and present behaviour towards the Department including whether they have been truthful and cooperative in their dealings with the Department

180. The delegate of the Minister in their record of decision letter dated 8 February 2018 found:

Departmental records do not indicate any evidence of adverse behaviour toward the Department and that he responded to his NOICC on 24 January 2018. (sic)

I give this consideration some weight in favour of the visa holder.^[98]

181. This is the only information before the Tribunal in relation to Mr Burton’s dealings with and behaviour towards the Department. I accept Mr Burton’s past and present behaviour toward the Department has not been adverse or uncooperative.
182. I find this consideration weighs against the cancellation of Mr Burton’s visa and I give it some weight.

Whether there are persons in Australia whose visas would, or may, be cancelled under s.140 of the Act

183. Section 140 provides, in summary, that where a person’s visa is cancelled and they have members of their family unit who are dependent on their visa, then the visas of those members are also cancelled.
184. The evidence before the Tribunal is that Mr Burton holds his own Subclass 444 visa and no members of his family unit are dependent upon his visa for their visa.
185. I find this consideration is neutral and does not weigh in support of or against the cancellation of Mr Burton’s visa.

Whether there are mandatory legal consequences to a cancellation decision including whether indefinite detention is a possible consequence of the cancellation or whether the Act prevents the applicant from applying for a visa without the Minister intervening

186. There are no submissions before the Tribunal that indefinite detention is a possible consequence of the cancellation of Mr Burton’s visa.
187. Mr Burton’s representatives made extensive submissions on this consideration which I summarise as follows.^[99]
188. Section 32 of the Act established a class of temporary visas known as special category visas and s.32(2) establishes the criterion to be granted such a visa, which includes that the non- citizen applicant who is a New Zealand citizen at s.32(2)(a)(ii) ‘is neither a behaviour concern non-citizen nor a health concern non-citizen’. The health concern non-citizen ground is not relevant for present purposes.
189. If Mr Burton’s visa remains cancelled he will become a ‘behaviour concern non-citizen’ because under the definition of that term in s.5(1) of the Act it includes a non-citizen who ‘has been removed or deported from Australia ... or ... from another country’.^[100]
190. Mr Burton’s representatives submitted that irrespective of whether Mr Burton is deported by the Department under s.200 of the Act or voluntarily elects to be removed under s.198(1) of the Act, both are covered by paragraph (d) of the definition of behaviour concern non-citizen. This is because the Department considers a person’s request to be removed under s.198(1), which then compels the Department to remove the person as soon as reasonably practicable, to still be a removal for the purpose of paragraph (d) of the definition of behaviour concern non-citizen.
191. In support of this submission Mr Burton’s representatives wrote:
     44. The applicant respectfully submits, contrary to the Tribunal’s finding in Carr [Carr (Migration) [2018] AATA 731], that a person who has been removed from Australia as a result of their voluntary election to be removed under s 198(1) is a person who has been removed from Australia and, therefore, falls within the definition of a behaviour concern non-citizen for the purposes of s 32(2)(a)(ii).
     45. The Department of Home Affairs has previously confirmed that it considers a person removed from Australia in consequence of a voluntary election to be removed under s 198(1) of the Act to be a behaviour concern non-citizen as prescribed by s 5 of the Act.
192. Mr Burton’s representatives provided email correspondence with the Department in which a Manager of the Department confirmed that the understanding in point 45 above is correct.^[101] I accept this submission.
193. Subsection 32(2)(c) provides a criteria for the grant of a Subclass 444 visa is if the person is in a class of persons declared by the Regulations to be persons for whom a visa of another class would be inappropriate. Regulation 5.15A then provides that for s.32(2)(c) of the Act there is a class of persons for whom a visa of a class would be inappropriate where, amongst other things, a person has been excluded from another country that does not, in the opinion of the Minister, warrant the exclusion of the person from Australia or the person has successfully applied under s.501CA(3) to have the decision to cancel under s.501(3A) (mandatory cancellation) revoked under s.501CA(4), and that decision to revoke the cancellation has not been set aside by the Minister under s.501BA(2).
194. The ground in s.32(2)(c) for the grant of a Subclass 444 visa does not apply to Mr Burton as he has not been excluded from another country, and has not previously had any visa cancelled under s.501(3A) of the Act, such that he does not fall within the prescribed class. Again, I accept this submission.
195. One way for Mr Burton to avoid becoming a behaviour concern non-citizen would be to obtain a Bridging E visa on departure grounds, assuming that Mr Burton has not been convicted and sentenced to imprisonment for one year or more. Mr Burton’s representatives submitted he will not be able to obtain a Bridging E (Subclass 050) visa to arrange his departure from Australia and avoid becoming a behaviour concern non-citizen.
196. This submission is based on the Department’s interim response dated 23 March 2018^[102] to Mr Burton’s 9 February 2018 application for a Bridging E visa, after the Tribunal – differently constituted – on 27 February 2018 set aside a delegate’s earlier refusal to grant Mr Burton a Bridging E visa.^1[103] In that interim response the Department indicated it was considering refusing Mr Burton’s application under s.501(1) of the Act on the ground Mr Burton’s criminal history suggests he may not pass the character test under s.501(6)(d)(i). Subsection 501(6)(d) provides that a person does not pass the character test in the event that were the person allowed to enter or to remain in Australia, there is a risk the person would, amongst other things, ‘(i) engage in criminal conduct in Australia’. As a result, Mr Burton withdrew his application for the Bridging E visa because to proceed would have risked enlivening s.501F of the Act^10[104] which provides, in effect, that if a visa is refused under s.501 (amongst other provisions) then any other application for a visa is deemed to be refused or any visa held by the applicant is deemed cancelled and these are non-reviewable decisions.
197. The difficulty I have with this submission is that it relies on predicting a potential future decision of a delegate of the Minister, guided by the previous written position of the Department in relation to Mr Burton. Whilst this speculation may not be unreasonable, I am not satisfied it provides a firm footing for me to make a positive finding agreeing with Mr Burton’s representatives in this instance. The Department’s letter was significantly qualified through the use of words such as ‘considering’, ‘suggests’ and ‘may not’, as it should have been, given the delegate is required to bring an open mind had the application proceeded.
198. Much may depend on the timing, terms and circumstances of any future Bridging E visa application by Mr Burton. If Mr Burton was acquitted of all charges or all charges were withdrawn prior to trial, such that it did not proceed against Mr Burton, then this may, or may not, cause the Department or specific delegate to review the previous preliminary position and Mr Burton may, or may not, be granted a Bridging E visa. It is not a matter of controversy that a future delegate would not be bound by the opinions expressed on 23 March 2018.
199. Similarly, there is little information before the Tribunal about what the Minister or Department would do post Mr Burton’s criminal trial, assuming it proceeds. Mr Burton’s representatives submitted that if Mr Burton’s visa remains cancelled under s.116(1)(e)(i), then irrespective of whether the charges are withdrawn or he is acquitted of all charges, once the criminal justice stay visa is no longer in place, as a non-citizen Mr Burton will be removed from Australia.
200. Again, I do not think this is an unreasonable submission but as noted previously this outcome is not certain. Mr Burton’s removal may very well occur quickly considering the Department’s obligation under s.198 of the Act to remove as soon as reasonably practicable an unlawful non-citizen, including under s.198(5), where that non-citizen is a detainee, has not applied for a substantive visa and regardless of whether they have made a valid application for a bridging visa.
201. However, there are other possibilities open. Departmental officers have a statutory duty to detain a person who they know or reasonably suspect is an unlawful non-citizen under s.189 of the Act. As noted above, s.195A of the Act empowers the Minister to personally intervene to grant someone held in immigration detention under s.189 a visa whether the person detained applied for the visa or not. The only requirement is that the Minister ‘thinks that it is in the public interest to do so’.
202. At best, I can find that it is possible that Mr Burton may not be eligible to be granted another Subclass 444 visa if his visa remains cancelled under s.116(1)(e)(i) of the Act, but that is far from certain in my mind and therefore does not amount to a mandatory legal consequence in the sense envisaged by this consideration.
203. In relation to Mr Burton obtaining another temporary visa, other than a Subclass 444 visa, Mr Burton’s representatives submitted:

Unable to satisfy Public Interest Criteria 4013 for 3 years

49. Further, if the Applicant’s visa is cancelled under s 116(1)(e) he will unable (sic) to satisfy PIC 4013(3) for the three years following the cancellation of his visa. It is noted that PIC 4013 is a criteria of most temporary visas.

Unable to satisfy Special Return Criteria for 12 months

50. If the applicant is removed from Australia he will be unable to satisfy SRC 5002 for twelve months following his removal from Australia. It is noted that SRC 5002 is a criteria of most visas.

Limited visa pathways to enter Australia within the next three years

51. It is submitted that if the Applicant is excluded from being granted a further subclass 444 visa permanently or any other temporary visa for three years, the Applicant’s options for lawfully re-entering Australian (sic) within the next three years are extremely limited as he is not eligible for most permanent visas.
52. While the applicant may be eligible to be granted a Remaining Relative (subclass 115) twelve months after his removal from Australia, the current processing times published by the Department of Home Affairs indicate that the waiting time for grant may be up to fifty years.
204. I find the submission about future visa pathways for Mr Burton to be speculative.
205. Mr Burton gave evidence that he has had romantic partners in the past but did not have a partner at the time of hearing, so he would not presently be able to apply for a Partner (Subclass 100/309) visa. This may change. A Partner (Subclass 309) visa is a temporary visa that can lead to a Partner (Subclass 100) visa being granted which is permanent visa. The permanent visa allows the de facto partner or spouse, as those terms are defined, of an Australian citizen, Australian permanent resident or eligible New Zealand citizen to live in Australia.
206. I accept the submissions of Mr Burton’s representatives above that there will be limitations on Mr Burton’s future visa pathways to return to Australia if Mr Burton was unable to obtain another Subclass 444 visa. However, both Public Interest Criteria 4013 and Special Return Criteria 5002 that their submission refers to are subject to the qualification that if there are compelling circumstances affecting the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, then a visa can be granted within the relevant exclusion period.
207. I find that these matters are too speculative to constitute a mandatory legal consequence of the cancellation of Mr Burton’s visa.
208. I find this consideration is neutral and does not weigh in support of or against the cancellation of Mr Burton’s visa.

Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation including the best interests of any children affected by consequential cancellation or cancellation would lead to removal in breach of Australia’s non-refoulement obligations

209. Australia is a signatory to and has ratified, such that under international law it must comply with, a range of international agreements. Those most relevant to the cancellation of visas include the Convention on the Rights of the Child (CRC), the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
210. The Department policy, as expressed in PAM3, on the consideration that must be given to these international obligations when considering the cancellation of a visa is currently as follows:

The CRC and family unity principles Best interest of children

Article 3.1 of the Convention on the Rights of the Child (CRC) states:

'In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.'

Article 3.1 of CRC does not stipulate which relationships should be considered in determining whether a decision is or is not in the best interests of the child. Therefore, in determining what is or is not in the best interests of the child, relationships other than between the natural or legal parent and the child should also be considered when making a decision. Further, the best interests of the child are a primary, not the primary, consideration.

Any relationship that would affect the best interests of the child is to be considered. Consideration should be given to the type and strength of the relationship(s) between the non- citizen and the child/children and also the extent of impact that visa cancellation would have on the child.

The obligation to consider the best interests of the child applies to those children who are under 18 years old (noting that the child must have already been born) and the obligations apply only to children who are within Australia’s territory or jurisdiction.

The interests of adult children residing with the family unit should be taken into account under the family unity principles described immediately following.

Officers requiring support in relation to considerations relating to a child’s best interests should email Child Protection Operations.

Family unity

Family unity principles must also be taken into account when cancellation or revocation of a cancellation is being considered, however, this applies only to family members within Australia's territory or jurisdiction

Article 23.1 of the ICCPR provides that:

• The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State.

Article 17.1 provides that:

• No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

It is worth noting that reasonable interference with family is contemplated provided it does not constitute arbitrary or unlawful interference.

Family unit principles also derive from the CRC:

• Article 9 (non-separation of children and parents) (noting article 9(4) contemplates that parents may be legitimately separated from children through deportation)
• Article 16 (freedom from interference with family).

The effect on family members (particularly partners and children) in Australia, including non- citizen family members, must be considered by the visa cancellation delegate. This is particularly the case if the visas of family members would be cancelled by operation of law under s140(1).^[105]

211. Mr Burton did not assert and his representatives did not make any submissions that Australia has obligations under international agreements that would be breached if Mr Burton’s visa remains cancelled.
212. The delegate in making their decision stated:

There is no information before the Department which indicates that cancellation would result in any breach of Australia’s international obligations, nor has the visa holder advised of having any concerns in relation to these principles.^[106]

213. However, I consider that both the CRC and the ICCPR are potentially engaged by the cancellation of Mr Burton’s visa.
214. Mr Burton has been separated from his family by being placed in immigration detention. I do not find this offends the family unit principles referred to above as Mr Burton’s detention is not arbitrary or unlawful, as it is a lawful consequence of Australia’s migration law. There is no submission before the Tribunal that those laws are invalid or that Mr Burton’s detention is arbitrary or unlawful.
215. If Mr Burton’s visa remains cancelled he will be separated from his family if he is required to leave Australia, at least in the short-term. For similar reasons to above, I do not find this breaches Australia’s international obligations as that short-term separation is an intended consequence of Australia’s migration laws in Mr Burton’s circumstances. I describe this separation as short-term given the evidence of Mr Burton’s parents that they will relocate to New Zealand to keep their family together.
216. However, I am concerned about the best interests of Mr Burton’s siblings as children and Australian citizens. The potential impact of the cancellation of Mr Burton’s visa on them has given me considerable cause for concern. I accept Mrs Burton’s evidence that her eldest son is a significant support to his siblings and that they wish both for him to remain with them and to remain in Australia. I have also accepted their separation from their brother whilst he is in immigration detention has caused and continues to cause them significant distress. Whilst Mr Burton is not in a parental relationship it is clear that he plays a significant role in the lives of his siblings, particularly in the circumstances of their mother’s ongoing ill health.
217. For these reasons and the reasons I have set out in the section ‘Hardship to Mr Burton’s family’ above I find that it would be in the best interests of Mr Burton’s siblings for the cancellation of his visa to be set aside. This is an important consideration and I have given it considerable weight above as I do here.
218. The weight I give the best interests of Mr Burton’s siblings as children is ameliorated to a significant degree because the relocation of the Burton family to New Zealand is ultimately a matter for Mr and Mrs Burton. They are best placed to decide what is in the best interests of their family, and in particular their children, in the difficult circumstances for them of the potential cancellation of their eldest son’s visa.
219. I find this consideration weighs against the cancellation of Mr Burton’s visa but for the reasons set out above I have given it only modest weight.

If a permanent visa is being considered for cancellation, whether the visa holder has formed strong family, business or other ties in Australia

220. Mr Burton’s visa is a temporary visa and not a permanent visa, as explained above.
221. I find this consideration is neutral and does not weigh in support of or against the possible cancellation of Mr Burton’s visa.

Any other relevant matters

222. Mrs Burton also described her son’s public service in Australia and overseas, including helping the elderly through their local church community and undertaking voluntary work on their usual annual overseas trips as a family. Her written statement in support of her son spoke about his leadership roles at both primary and secondary school and his role in detail in creating, with others, the Multi Pride program at Lyndhurst Secondary College, its ongoing positive effect on the school community, its expansion to other schools and the pride this had brought her son and her family. Many of the authors of letters of support spoke highly of Mr Burton and in particular his good deeds for others and community service. I accept this evidence.
223. I have taken Mr Burton’s history of local and international community service into consideration and consider it weighs against the cancellation of Mr Burton’s visa.

Conclusions

224. In carefully weighing these considerations I have found that the decision to cancel Mr Burton’s Special Category (Temporary)(Class TY)(Subclass 444) visa should be affirmed.
225. The considerations that weigh in favour of the cancellation of Mr Burton’s visa are the circumstances of the cancellation of Mr Burton’s visa, which I gave the greatest weight, and ameliorating factors in relation to the consequences of cancellation for Mr Burton.
226. The circumstances of the cancellation include:
     • Mr Burton pleaded guilty to a crime of violence in October 2016 which resulted in him being fined $500 without conviction and giving an undertaking to be of good behaviour for 12 months, which he complied with. I did not find the claim that Mr Burton became involved in the affray only to break up a fight his friends were involved in as credible or convincing.
     • A Victoria Police recommendation that Mr Burton be placed on a diversion order for that offence was rejected by the Magistrates’ Court.
     • Mr Burton having a long-term and ongoing friendship with a person he told the Tribunal is a member of the Comanchero MC and who was a co-offender on the affray matter, and on Mr Burton’s evidence was sentenced to imprisonment for that matter.
     • In November 2017, barely weeks after completing his undertaking to be of good behaviour for the affray matter, Mr Burton was charged with serious and significant crimes of apprehended violence including blackmail with menaces and extortion with threats to injure and other criminal charges.
     • The criminal charges filed against Mr Burton have now progressed beyond the charge stage and Mr Burton, following a committal hearing, has been committed by a Magistrate to stand trial on 12 criminal charges with the trial set down for 20 hearing days in the County Court of Victoria.
     • Mr Burton has been granted bail on onerous conditions which on his evidence includes conditions that he not associate with anyone from the Comanchero MC or go to the Comanchero MC owned Nitro Gym in Hallam. This indicates to me that the Magistrates who have granted bail with those conditions had concerns about Mr Burton’s alleged association to the Comanchero MC and also thought it necessary to impose a nightly curfew, daily reporting to police, an alcohol and drug ban and a very significant $100,000 surety to ensure Mr Burton was not, amongst other matters, an unacceptable risk to the safety or welfare of any person or of committing offences whilst on bail.
     • There is evidence before the Tribunal that Mr Burton has had alcohol abuse issues in the recent past and clearer evidence that he has had and continues to have anger management issues, both of which he has sought voluntary counselling for.
227. The ameliorating factors to the hardship that Mr Burton will experience from the cancellation of his visa are:
     • Mr Burton has visited New Zealand 14 times in his 17 years in Australia, most recently in October 2017, and Mr Burton and his mother have family members in New Zealand. He is a young man with no long term relationship or parenting commitments or known financial commitments in Australia, such that I found he is better placed than many to make a potentially successful new life in New Zealand;
     • Mr Burton’s family have indicated they will relocate to New Zealand to keep their family together which will provide considerable emotional and psychological support to Mr Burton and will significantly reduce the impact of the cancellation of his visa on him; and
     • Mr Burton will be able to more effectively immerse in his Maori heritage and identity in New Zealand which will provide a positive influence in his life.
228. The considerations that weigh against the cancellation of Mr Burton’s visa are:
     • Mr Burton has a compelling reason to travel to and stay in Australia to remain with his family, ameliorated only in part by the evidence his immediate family will move to New Zealand if Mr Burton is required to depart Australia;
     • Mr Burton is experiencing hardship in immigration detention through the separation from his family, friends and familiar surroundings, which is exacerbated by pre-existing mental health conditions, although the medical evidence in support of this finding was not particularly strong or probative, reducing the weight I gave to this consideration;
     • Mr Burton has been granted bail in relation to the pending criminal charges and complied with the conditions of his bail prior to being detained, adding to the hardship immigration detention is causing him, although, due to the lack of direct evidence from Mr Burton about this I gave this consideration only modest weight;
     • Mr Burton will suffer hardship if he is required to relocate to New Zealand and start over, but as I found he is very familiar with New Zealand, he has relatives there, his own immediate family would move there and being a young man with no known significant relationship or financial commitments in Australia, I gave this consideration less weight than I would have for someone who, for example, would be separated from their partner and/or children, or even someone who had been in Australia for a long period of time and had not returned at all, rarely or not recently to their home country;
     • Mr Burton’s family will suffer significant financial, emotional and psychological hardship as a result of the cancellation of Mr Burton’s visa and I gave this consideration considerable weight. This hardship is exacerbated by Mrs Burton’s ill health and I accepted the intended relocation to New Zealand would be particularly difficult for Mr Burton’s siblings. I also accept the move would cause hardship for Mr Burton’s parents financially and psychologically, as they would need to sell their house in Australia and find new accommodation in New Zealand, and Mr Burton’s stepfather would need to find new work in New Zealand. If Mr and Mrs Burton had not given evidence that their family will relocate to New Zealand then I would still have given some weight to this consideration as they then would have been separated from Mr Burton. In those circumstances I would also have given considerably more weight to the impact of cancellation on Mr Burton;
     • Mr Burton has been cooperative in his dealings with the Department;
     • Mr Burton has a history of local and international community service which is a positive contribution to the people and communities he has assisted; and
     • It would be in the best interests of Mr Burton’s siblings as children to set aside the cancellation of his visa so they do not have to move to New Zealand. As moving to New Zealand is a choice, albeit a very difficult one, for Mr Burton’s parents I find they are best placed to decide what is in the best interests of their children and therefore I gave this consideration only modest weight.
229. The considerations that are neutral and neither weigh in support of or against the cancellation of Mr Burton’s visa are:
     • Compliance with visa conditions because Mr Burton’s Subclass 444 visa does not have any conditions attached to or imposed on it;
     • Whether there are persons in Australia whose visas would, or may be cancelled under s.140 of the Act as no members of Mr Burton’s family unit are dependent on his visa;
     • Whether there are mandatory legal consequences to a cancellation decision including possible indefinite detention, as I found it is possible that Mr Burton may not be able to obtain a Subclass 444 visa in the future; but the evidence about this and other visas potentially available to Mr Burton and the restrictions he may experience in applying for those visas are speculative and uncertain; and
     • If a permanent visa is being cancelled the visa holder’s family, business or other ties to Australia, because Mr Burton’s Special Category (Temporary)(Class TY)(Subclass 444) visa is a temporary visa.
230. In my view the considerations that weigh in favour of the cancellation of Mr Burton’s visa, particularly the circumstances in which cancellation arose given a prior offence for a crime of violence and the nature and extent of the criminal charges pending against Mr Burton, outweigh the considerations that weigh against the cancellation of his visa many of which, as noted above, are ameliorated by Mr Burton’s particular circumstances.

DECISION

231. For the reasons set out above I affirm the decision of the delegate of the Minister for Home Affairs to cancel the applicant’s Special Category (Temporary)(Class TY)(Subclass 444) visa.

Michael Ison

Senior Member

^[1] Administrative Appeals Tribunal Act 1975 (Cth), ss.42(2) and 24Z(2)(b).

^[2] The common law offence of affray was abolished and replaced by the statutory offence of affray under s.195H of the Crimes Act 1958 (Vic) by the Crimes Legislation Amendment (Public Order) Act 2017 (Vic) with effect from 13 September 2017.

^[3] Tribunal file, folio 3.

^[4] According to the Procedures Advice Manual 3 – PAM3 ‘Act-based Visa Instructions – Criminal Justice Visas’ (PAM3) a person cannot apply directly for a Criminal Justice Visa (CJV), rather they may request that a delegate of the Minister consider the ministerial power to grant a CJV once a Criminal Justice Certificate has been issued by an appropriate law enforcement agency. Notably, the power to grant a CJV is discretionary.

^[5] Clause 444.2 of Schedule 2 to the Regulations provides that the only criteria for a special category visa are those set out in s.32 of the Act and reg.5.15A of the Regulations. For instance, the public interest criteria set out in Schedule 4 to the Regulations do not apply to Special Category (Subclass 444) visas.

^[6] Refer Kapene Te Amo (Migration) [2018] AATA 2214 at [13]- [19].

^[7] Sachin v Minister for Immigration & Anor [2016] FCCA 2815 at [34] following Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40.

^[8] Tribunal file, folio 3.

^[9] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, also referred to in Shi v Migration Agents Registration Authority [2008] HCA 31 at [98] per Hayne and Heydon JJ.

^[10] See the Applicant’s Response to the Notice of Intention to Consider Cancellation (NOICC) of a Visa dated 24 January 2018 at Tribunal file, folio 51 at [40],

^[11] Ibid at [43].

^[12] See Migration Amendment (Character and General Visa Cancellation) Bill 2014, Second Reading Speech, Hansard, House of Representatives, 24 September 2014 at p.10325.

^[13] See, in particular, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 and Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28.

^[14] CIC Insurance Limited v Bankstown Football Club Ltd (1997) 187 CLR 384 and IRG Technical Services Pty Limited v Deputy Commissioner of Taxation [2007] FCA 1867; (2007) 165 FCR 57 at [21].

^[15] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 at [47].

^[16] Explanatory Memorandum, Migration Reform Bill 1992 and Migration (Delayed Visa Applications) Tax Bill 1992, p.3 at [13].

^[17] Procedures Advice Manual – PAM3 ‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s 140’' at [72].

^[18] Subsection 371(3) provides that the penalties for refusing to answer a question do not apply if answering the question may tend to incriminate the person. There is a similar provision in s.433(3) of the Act in relation to protection reviews.

^[19] Refer s.97 of the Criminal Procedure Act 2009 (Vic), which sets out the purpose of the committal hearing as including to determine whether there is evidence of sufficient weight to support a conviction for the offence

^[20] Refer Gong v MIBP at [45].

^[21] Refer Singh (Migration) [2017] AATA 850 at [60] and [61] (Logan J).

^[22] For instance under the s. 4E of the Bail Act 1977 (Vic) the test is whether there is an unacceptable risk, which is measured in terms of whether the accused will commit an offence or endanger the safety of victims, individuals or the community, not whether they may do so.

^[23] Sections 27 (extortion), 321M (attempt) and 321P (penalties for attempt) of the Crimes Act 1958 (Vic).

^[24] Tribunal file, folio 139.

^[25] Tribunal file at [7] and [8] of the 27 April 2018 submissions.

^[26] Clause 444.6 of Schedule 2 of the Regulations.

^[27] According to the Home Affairs website: ‘There can be waiting times of up to 50 years for this visa.’ and ‘Global processing time for this visa is unavailable as applications are capped and queued’

^[28] An eligible New Zealand citizen is defined under r.1.03 of the Regulations to mean a New Zealand citizen who is a protected Special Category Visa holder within the meaning of s.7 of the Social Security Act 1991 with the protection applying for those Special Category visa holders who were ordinarily resident in Australia on 26 February 2001.

^[29] Procedures Advice Manual - PAM3 ‘General visa cancellation powers - Australia’s international obligations - Non-refoulement obligations’; Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1994) 183 CLR 273.

^[30] W157/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1536; (2001) 190 ALR 55 at [81].

^[31] Regulation 1.02.

^[32] Refer to information on the Department of Home Affairs internet website www.homeaffairs.gov.au including the‘Fact Sheet – New Zealanders in Australia’ and on the Parliament of Australia internet website www.aph.gov.au including the research paper, ‘New Zealanders in Australia: a quick guide’ by Harriet Spinks and Michael Klapdor dated 29 August 2016. There is another category of permanent visas for people from New Zealand now, the Skilled Independent visa (Subclass 189)(New Zealand) stream, available to people who arrived in Australia between 26 February 2011 and 19 February 2016 but the evidence before the Tribunal is that this visa is not relevant in Mr Burton’s case.

^[33] Samuta McComber Lawyers submission dated 24 January 2018 in response to the NOICC, at paragraph [11].

^[34] Tribunal file, folio 51.

^[35] Tribunal file, folio 146 (back).

^[36] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 at [47].

^[37] Gong v Minister for Immigration & Anor [2016] FCCA 561 at [38] and [40].

^[38] Howard v Minister for Immigration [2017] FCCA 2916.

^[39] Macquarie Dictionary online, accessed 1 August 2018.

^[40] Reference from J L Hand Fencing dated 8 January 2018, Tribunal file, folio 20.

^[41] Cl.444.6 of Schedule 2 to the Regulations.

^[42] Tribunal file, folios 17 to 38.

^[43] Letter from Mr Faauuga Tanielu dated 10 January 2018, Tribunal file, folio 26.

^[44] Letter from Samuta McComber lawyers to the Tribunal dated 24 July 2018 Tribunal file, folios 187 to 188.

^[45] Tribunal file, folios 115 to116.

^[46] Tribunal file, folio 144 (back).

^[47] Tribunal file, folio 114 (back).

^[48] Tribunal file, folio 113.

^[49] Tribunal file, folio 39 (back).

^[50] Tribunal file, folio 114 (back).

^[51] Tribunal file, folio 31.

^[52] Tribunal file, folios 39 and 40 (back).

^[53] Tribunal file, folio 40.

^[54] Tribunal file, folio 3 (back).

^[55] Tribunal file, folio 24 (back).

^[56] Samuta McComber response to the NOICC dated 24 January 2018, Tribunal file, folio 51.

^[57] Samuta McComber submission to the Tribunal dated 27 April 2018 at paragraphs [33] to [39], Tribunal file, folio 145.

^[58] Samuta McComber submission to the Tribunal dated 27 April 2018 at paragraphs [40] to [52], Tribunal file, folios 144 and 145 (back).

^[59] Samuta McComber submission to the Tribunal dated 14 May 2018 at paragraph [4], Tribunal file, folio182 (back).

^[60] Samuta McComber submission to the Tribunal dated 14 May 2018, Tribunal file, folios 181-182.

^[61] See Migration Amendment (Character and General Visa Cancellation) Bill 2014, Second Reading Speech, Hansard, House of Representatives, 24 September 2014 at p. 10325, Tribunal file, folio 98.

^[62] Gong v Minister for Immigration & Anor [2016] FCCA 561 at [45].

^[63] Subsection 195(5) of the Act.

^[64] Subsection 195A(4) of the Act.

^[65] Report No. 07/2016 into the Department of Immigration and Border Protection and The Administration of People who have had their Bridging Visa Cancelled due to Criminal Charges or Convictions and are Held in Immigration Detention, dated December 2016.

^[66] For the principles relating to the sentencing of ‘youthful offenders’ in Victoria, see Huynh v The Queen; Au v The Queen [2017 VSCA 216 at [51] and R v Mills [1998] 4 VR 235 at [241].

^[67] Sentencing Act 1991 (Vic), s.18.

^[68] Underwood (A Pseudonym) v The Queen (No 2) [2018] VSCA 87.

^[69] Tribunal file, folios 114 to 115 (back).

^[70] Tribunal file, folio 37 (back).

^[71] Tribunal file, folio 123 (back).

^[72] Tribunal file, folio 5 (back).

^[73] Tribunal file, folio 37.

^[74] Sentencing Act 1991 (Vic). Serious offender offences under Part 2A attract specific sentencing principles.

^[75] Section 320 of the Crimes Act 1958 (Vic), authorised version number 249G which incorporated all amendments to the Act as at 9 July 2015.

^[76] Section 28 of the Criminal Procedure Act 2009 (Vic), authorised version number 044 incorporating all amendments to the Act as at 1 July 2015.

^[77] Victorian Sentencing Manual published by the Judicial College of Victoria, downloaded from http://www.judicialcollege.vic.edu.au/eManuals/VSM/9952.htm on 1 August 2018.

^[78] Tribunal file, folio 52 at paragraph [21].

^[79] Samuta McComber submission dated 27 April 2018 at paragraphs [7] and [8], Tribunal file, folio 147 (back).

^[80] Tribunal file, folio 43 (back).

^[81] (1986) 8 Cr.App.R (s) 444, referred to in the Victorian Sentencing Manual.

^[82] For the principles relating to the sentencing of ‘youthful offenders’ in Victoria, see Huynh v The Queen; Au v The Queen [2017 VSCA 216 at [51] and R v Mills [1998] 4 VR 235 at [241].

^[83] Tribunal file, folios 178 to 180 (back).

^[84] As retrieved from the County Court of Victoria website at the Court Connect tab: www.cjep.justice.vic.gov.au/pls/p100/ck_public_qry_crim.cp_crimlist_rslt_idx

^[85] Department file, folios 17 to 25.

^[86] Criminal Procedure Act 2009 (Vic), s.97(b).

^[87] Op. cit.

^[88] Samuta McComber Lawyers submissions to the Tribunal dated 1 August 2018, Tribunal file, folios 191 to 193.

^[89] Samuta McComber Lawyers submission to the Tribunal dated 14 May 2018, Tribunal file, folio 182.

^[90] Refer to Part 4.4 of the Criminal Procedure Act 2009 (Vic).

^[91] Department file, folios 17 to 25.

^[92] Tribunal file, folio 179.

^[93] Letter from Balmer & Associates to Samuta McComber Lawyers dated 14 May 2018. Tribunal file, folio 180.

^[94] Tribunal file, folio 177 and Open Courts Act 2013 (Vic) ss.18(1)(a) and (c).

^[95] It has been widely reported in the media over a number of years that the Nitro gyms are owned by the national president of the Comanchero MC, Mr Mick Murray. For example, see: http://www.abc.net.au/news/2014-05- 27/comanchero-boss-granted-bail-on-241m-surety/5480660

^[96] Tribunal file, folio 37.

^[97] Tribunal file, folio 114 (back).

^[98] Tribunal file, folio 2.

^[99] Samuta McComber submission to the Tribunal dated 27 April 2018, Tribunal file, folios 144 and 145.

^[100] Section 5(1) definition of ‘behaviour concern non-citizen’ at (d).

^[101] Tribunal file, folios 96 to 97 (back).

^[102] Tribunal file, folios 121 to 122.

^[103] Tribunal file, folios 123 to 127.

^[104] Samuta McComber submission to the Tribunal dated 27 April 2018 at paragraphs [18] and [19], Tribunal file, folio 146.

^[105] Extracted from the Department’s online database called Legend on 1 August 2018 from the ‘General visa cancellation powers (s109, s116, s128, 134B and s140)’.

^[106] Tribunal file, folio 1 (back).