Tribunal: Member Kate Millar

The Department of Home Affairs (the Department) cancelled the applicant’s Subclass 444 (Special Category) visa on 16 April 2018.

The applicant, a citizen of New Zealand, claimed to have arrived in Australia in 1968. On 13 April 2018, he was convicted of entering a dwelling at night while armed, unlawful assault occasioning actual bodily harm whilst armed, and contravention of a domestic violence order. The victim was the applicant’s former partner of 17 years. He was sentenced to six years’ imprisonment collectively for the offences and a protection order was issued in relation to the victim until 2023.

The Department cancelled the applicant’s visa because it was satisfied his presence is or may pose a risk to the health or safety of the victim.[1] This is a ground for cancellation of a temporary visa under Section 116(e) of the Migration Act 1958. The applicant appealed this decision to the AAT.

There are two steps the AAT had to consider in this matter. The AAT must first be satisfied that the applicant is or may pose a risk to the health or safety of an individual (in this case the victim). If the AAT finds that the ground for cancellation exists, visa cancellation is not automatic. The decision maker must then consider whether the circumstances of the case warrant cancellation of the visa.[2]

In considering the first step, the AAT reviewed several pieces of evidence including the applicant’s account of events leading up to, and including, the offence and a psychiatric report of the applicant. The AAT also heard from the applicant’s ex-wife.  The AAT had concerns about the credibility of the applicant, pointing to inconsistencies in the applicant’s accounts of events, commenting that the applicant had a tendency to minimise his offences.

For these reasons, the AAT agreed with the Department that the applicant was or may be, or would or might be, a risk to the health and safety of the victim. The AAT’s reasons for this conclusion included the nature of Mr Schofield’s offences together with a psychiatrist’s assessment of the applicant’s mental state.

The applicant argued that he could not be a risk to the victim’s health and safety because he was very ill. At the time of the hearing, the applicant had prostate cancer and a prognosis of less than two years. The AAT was not satisfied that the applicant’s poor health meant that he was no longer a risk given he was ambulatory and could use a telephone, which was alleged to have been a feature of his interaction with one of the victims in the past.

The AAT then moved on to the second step, considering whether to exercise its discretion to cancel the visa in the circumstances of the case.

The AAT found that the applicant’s lengthy residence in Australia of close to 50 years weighed against cancellation of the visa as did his past contributions to the community. The AAT also acknowledged that the applicant’s illness and the fact he had the support of his local community in Australia weighed against cancelling the visa.

The applicant argued that he had three children in Australia and that this gave him a compelling need to stay in Australia but the AAT found he had minimal contact with his children and that this was not a compelling reason for him to remain in Australia.

The AAT ultimately found that the seriousness of the offences and the risk to the health and safety of individuals in Australia outweighed the factors against cancellation of the visa.

The AAT concluded the applicant’s visa should be cancelled and affirmed the decision.

Read the full decision on AustLII.

 

[1] This is a ground for cancellation of a temporary visa under Section 116(e) of the Migration Act 1958

[2] The AAT had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.