1707833 (Migration)

[2018] AATA 2515

1707833 (Migration) [2018] AATA 2515 (14 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1707833

MEMBER:R. Skaros

DATE:14 May 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 14 May 2018 at 11:06am

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – an offence against a law – Criminal convictions and offences – Police fact sheet – Seriousness of offence – Isolated incident – Psychologist report – Contribution to charity – Career prospects of applicant’s partner – Hardship to employers – Notification to Department – Decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 359A, 375A
Migration Regulations 1994, r 2.43

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 April 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

   Background

2. The applicant was granted a temporary work Subclass 457 visa on 8 March 2016 for a period of 4 years on the basis of approved nomination by [Company 1].

3. On 7 February 2017 the applicant provided to the Department a completed Form 1022, Notification of Change of Circumstances, advising that he has a criminal record in Australia for two offences: [Offence 1 and Offence 2]. He also provided evidence indicating that for the first offence he was found guilty but without proceeding to a conviction and that he must enter into an 18 months good behaviour bond under s.10(1)(b) of the Crimes Act and for the second offence he was fined $750. 

4. After obtaining information from NSW Police confirming the applicant’s conviction in respect of second offence, the Department decided to issue a notice of intention to consider cancellation under s.116(1)(g) of the Act (the notice) on the basis that a prescribed ground for cancelling the visa applies to the applicant. The prescribed ground identified in the notice is r.2.43(1)(oa) which enlivens the cancellation of a temporary visa if the Minister is satisfied the holder has been convicted of an offence against a law of the State. The delegate noted the applicant’s conviction for [Offence 2] is an offence against the law of New South Wales and the applicant was invited to provide a response to the notice.

5. The response to the notice was provided by way of submissions from the representative dated 21 March 2017 together with supporting documents, including character references for the applicant, evidence of the applicant and his partner’s employment in Australia, the applicant’s qualifications, evidence of health insurance, evidence relating to the applicant and his partner’s relationship, statutory declaration from the applicant and various personal documents. The Tribunal has had regard to the submissions and relevant documents in its considerations below. 

6. The delegate decided to cancel the applicant’s visa under s.116(1)(g) of the Act. The delegate found that the applicant had been convicted of an offence against the law of the State of New South Wales and was satisfied, after considering the circumstances and evidence, that the visa should be cancelled.

7. On review, the Tribunal received submissions and further supporting material regarding the applicant’s relationship with his partner, character references and letters of support for the applicant, current information regarding the applicant’s employment and a copy of the clinical psychologist’s report dated [in] March 2017. The Tribunal notes that a few of the documents referred to in the delegate’s decision, such as the psychologist’s report [from] and the police Facts Sheet, were not provided to the Tribunal by the Department. However, the Tribunal has since received these documents from the applicant. 

8. The applicant appeared before the Tribunal on 12 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, [Ms A], by telephone.   

9. The applicant was represented in relation to the review by his registered migration agent. The representative attended the hearing.

10. After the hearing the Tribunal received submissions to which the Tribunal has had regard.

    s.375A certificate

11. The Tribunal has before it the Department’s file which includes a non-disclosure certificate issued under s.375A of the Act in respect of folios 11,12-17 and 221. The Tribunal gave the applicant a copy of the certificate at the hearing and invited the applicant to make submissions on its validity. After the hearing, the Tribunal received written submissions contending that the certificate is not valid as it contains a broad description of the information in the relevant folios and does not explain why non-disclosure is in the public interest.

12. The certificate states that disclosure of certain documents would be contrary to the public interest because they contain “third party information and DIBP procedures and internal workings”.  The Tribunal accepts the representative’s contention that the certificate is not valid as it merely describes the information in the documents and does not provide a valid ground of public interest immunity.

13. The Tribunal has considered the relevance of the information in the documents covered by the certificate. At the hearing the Tribunal discussed with the applicant the nature of the information contained in the documents. The Tribunal noted that some of the documents, which are not relevant to the review, included internal departmental communications regarding the process for obtaining information from a third party and internal procedural issues. The Tribunal noted that other documents however, namely the report obtained by the Department from NSW Police regarding the applicant’s conviction, were relevant to the review and adverse to the applicant. The Tribunal notes however that it is not required to put this information to the applicant in accordance with the provisions in s.359A/s.359AA as the applicant has already provided the Court orders, which detail his conviction, to the Department.  

14. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

16. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

17. A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant and provides that, in the case of a holder of a temporary visa of the kind held by the applicant, the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any)).

18. The Tribunal accordingly finds that the ground for cancellation in s.116(1)(g) 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

19. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has 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’.

20. The Tribunal has first considered the purpose of the applicant’s travel and stay in Australia. The applicant is a German national. He travelled to Australia in March 2016 as the holder of a Subclass 457 visa to work on secondment for [Company 1] in Australia in the position of [Occupation 1]. Initially the position was for a period of 9 months however this was extended for further periods. The applicant was promoted to the position of [Occupation 2] in December 2016. The applicant claims that [Company 1] is considering offering him a permanent role. This was confirmed in a letter received from the applicant’s supervising partner at [Company 1] Australia, [MrB]. [MrB], in a personal reference for the applicant, stated that the applicant was promoted due to the significant contribution he had made to the practice, his colleagues and his clients. He indicated that the applicant is responsible for 10 to 15 analysts and managers as well as a revenue pipeline of AUD 1 million. [Mr B] confirmed his knowledge of the applicant’s conviction and noted that he was surprised when he became aware of the conviction as this was not consistent with the applicant’s behaviour.

21. At the hearing, the applicant gave evidence that he informed [Company 1] Australia and Germany about his conviction after his visa was cancelled in April 2017. He stated that he had not notified them prior to the cancellation because he was anxious and worried about the consequences.  He stated that he had made a mistake and the conviction did not reflect well on him and could affect his future. He has been with [Company 1] for 7 years and hopes to become a partner. The applicant submitted that he and [Ms A] had good positions in Australia and had settled well. They are involved in sports, have positively contributed to the community and have good career prospects. 

22. In relation to whether there was a compelling reason for the applicant to remain in Australia, the Tribunal noted that [Company 1] Australia was a relatively large corporation and that in its view the position of director could be filled by another person if he returned to Germany. The Tribunal indicated to the applicant that his visa had been cancelled since April 2017 and that [Company 1] would have been on notice since that time that he may not be able to continue in his role and that it would find it surprising that they would not have considered his replacement if he had to return to Germany as a result of the conviction. In response, the applicant stated that he acknowledges he is not indispensable but he currently holds a senior position which involves a pipeline of $1 million engagement revenue. They currently have 10 engagements he is working on and he leads a team of analysts and managers. With his partner [Mr B] they are in charge of [certain] business and have developed a very good case and business and have built up the team and its capabilities. He stated that his business partner is optimistic that he will remain in Australia.

23. The applicant confirmed, as was in the written submission, that [Company 1] was willing to continue to employ him in Germany if he had to return. He stated that while they have been more supportive than he had expected, if he has to go back to [Company 1] Germany now it will significantly impact his professional career. The applicant stated that he acknowledged his wrongdoing and regrets his actions. He stated that his primary concern is the effect of the cancellation on his partner. He stated that he cannot comprehend that his actions would negatively impact his partner’s future. The Tribunal has considered the hardship that may be experienced by [Ms A] further below.

24. The evidence before the Tribunal, including the applicant’s most recent employment contract and letter from his current supervising partner, indicate that the applicant remains employed by his sponsoring employer and that he will continue to be employed with [Company 1] Australia. The Tribunal accepts on the evidence before it that the applicant currently fills a senior position with [Company 1] Australia and is involved in various engagements on behalf of his employer.  The Tribunal considers the applicant’s stay in Australia to be entirely consistent with the purpose of the 457 visa and gives weight to this factor in favour of not cancelling the visa.

25. The Tribunal considers however that if the applicant’s visa is cancelled and he had to return to Germany, it is likely that [Company 1] will be able to find a suitable replacement. While this may cause some inconvenience for the company, in the Tribunal’s view, it does not establish a compelling reason for the applicant to remain in Australia. The Tribunal further notes that the applicant will be able to resume employment with [Company 1] in Germany if he had to return there, though it has also considered, further below, his claim that his return to Germany would be a setback for his career and would negatively impact [Ms A’s] career. 

26. In addition to the above, the Tribunal has also had regard to the numerous references provided in support of the applicant attesting to his overall good character, his commitment to his work, his contribution to the community through the assistance he provides to recent graduates and his involvement with various charities. The Tribunal has had regard to the letter from [a charity], a charity that provides assistance to women in financial hardship, indicating that the applicant has been involved with them since November 2017 and that he has been assisting a woman establish a business by setting up her website. The applicant stated that he has dedicated many hours to charity work in Australia and will continue to do so. The Tribunal has had regard to the details in his statutory declaration and to the references from persons who have been assisted by him.  The Tribunal gives favourable weight to the positive contributions the applicant has made during his stay in Australia.

27. In considering the applicant’s compliance with visa conditions and his cooperation with the Department, there is no evidence before the Tribunal to suggest that the applicant has breached visa conditions or that he has been uncooperative with the Department. The Tribunal has considered, and gives some favourable weight, to the representative’s submissions regarding the applicant’s conduct in voluntarily notifying the Department of his conviction. The Tribunal also acknowledges that the applicant declared his criminal conviction when he last travelled to Australia and was questioned by officers at the airport before being immigration cleared. The applicant notifying and disclosing his conviction to the authorities is a factor that weighs in his favour. 

28. The Tribunal has next considered the circumstances in which the ground of cancellation arose. The ground of cancellation was triggered when the applicant was convicted of [Offence 2]. The conviction arose out of an incident which occurred [in] September 2016 which led to the applicant being charged with [Offence 1] and [Offence 2]. The applicant was not convicted in relation to the [first] offence. He was fined $750 for the [Offence 1] conviction.

29. In his response to the notice, the applicant provided the following explanation in relation to the circumstances which led to him being convicted. He stated that his career was progressing well in Australia but life was very stressful. There were the usual stresses associated with him establishing himself socially in Australia, including establishing a new home and adjusting to the Australian way of life. He stated that there was also the financial pressure of life in Australia which was more expensive than he had envisaged. His partner was completing her honours thesis and was not working in Australia and he was the only source of income for them. He stated that probably due to these stressors he and his partner were experiencing fairly significant issues in their relationship. He was finding it particularly difficult to deal with the fact that in the months leading up to the offence all of the intimacy had gone out of their relationship.

30. He stated that on the day of the offence he had been drinking with a number of friends and was intoxicated. He stated that drinking to the extent he did on the day the offence was, and continues to be, out of the ordinary for him as he places a significant premium on his physical well-being. He stated that he then travelled by himself to a club and that while he was with a lady at the club he [offended] her. The lady noticed him [and] grabbed his phone. The lady then attempted to exit the room. As his phone contained a lot of sensitive personal and professional information he went to get the phone back from the woman. He stated that he did not strike the woman and instead tried to pull the phone from her grasp. He stated that he would have said words to the effect of "give me the phone" and did not scream at the woman or do anything to indicate he wanted to harm her. He stated that he just wanted to get his phone back and very shortly after he was trying to get the phone back, a man, whom he understood worked at the club, entered the room after which he stopped trying to retrieve his phone. The applicant stated that after the offence he was interviewed by the police. He stated that he immediately accepted responsibility for his behaviour and made several admissions to the police which he knew he did not have to make. He also unlocked his phone for the police and subsequently entered a plea of guilty and was placed on an 18 month good behaviour bond for the offence of [Offence 1] and fined $750 for the offence of [Offence 2]. The applicant stated that he accepts what he did was absolutely wrong.

31. The police Facts Sheet reveal further details about the circumstances of the incident which led to the conviction. It indicates that the incident took place at [a]Club, which is a full service brothel, in [Suburb 1]. It indicates that applicant and the victim were alone in the room when the applicant asked the victim [which] she stated “no” and pointed to the warning sign prohibiting[certain conduct]. The applicant and the victim watched a video on the applicant’s mobile phone which was then placed on a bed in the room. After some time the victim observed the applicant with the mobile phone in his hand which illuminated light onto his face. She requested to see his mobile phone as she believed he had [offended] her. The victim attempted to open the door but it was locked and she began screaming so as to get the attention of a person outside the room. The applicant on two occasions grabbed the victim and tried to move her away from the door and in the process caused [injuries] on her body and causing her pain. A worker at the club attended the room and took the mobile phone from the applicant explaining that he cannot [do certain conduct]. The applicant told the witness that he would [stop] and police were contacted.

32. The Facts Sheet records that the applicant admitted to police that he [did offend] the victim and stated he was sorry and that it was not an issue the last time he was there. It was indicated that the applicant provided the passcode to his mobile phone of his own volition and that the police viewed the [content] on his mobile phone and he was arrested. The applicant was then taken to [Suburb 1] police station. The applicant’s mobile phone was seized and police located an audio file on his phone which commenced when he entered the room for service and concludes when the phone is seized by police. The Facts Sheet indicates that the applicant participated in an electronically recorded interview but denied [certain conduct] or making the audio recording while with the victim. He also denied allegations regarding the [Offence 2]. As noted above, the applicant subsequently pleaded guilty to the relevant charges, one of which resulted in a recorded conviction and triggered the cancellation of the visa.

1. At the hearing, the Tribunal discussed with the applicant the circumstances that led to the non-compliance as set out in the delegate’s decision record as at that time the Tribunal was not privy to the police Facts Sheet. It put to the applicant that information regarding the incident which led to him being charged and subsequently convicted was not caused by factors that were beyond his control. It noted that he would have appreciated that [certain conduct] of the victim without her permission and the events that occurred after he had [offended her], namely him attempting to retrieve his phone from the victim and causing her to fear, did not reflect well on his character.

2. In response, the applicant stated that what occurred that night was a mistake. He cannot explain why he [engaged in the conduct], only that at the time his relationship with [Ms A] was under a lot of stress, they were trying to settle down and they found the move more difficult than what they expected. He stated that he did not in any way intend to physically harm the woman and that if a video of the incident was available it could be seen that as soon as he found out that the woman could not get out of the room he backed off and did not go anywhere near her. When asked what he intended to with the [content] of the victim, he stated that he was 100% going to delete it. He stated that he has no explanation as to why he decided to take [engage in the conduct]. He stated that the [content] was not of the woman’s [body part], it did not identify her as it was of her back.  He stated that he was just trying to get his phone back and did not intend to physically harm her. He stated that he is not downplaying the incident and acknowledges the seriousness of actions and accepts the consequences in full.  He stated that he gave the police full access to his mobile phone with his fingerprint and the police officer deleted the [content].

3. The Tribunal put to the applicant that the delegate’s decision indicates that he had denied [the conduct]. In response, the applicant stated that he was intoxicated and it was entirely absurd for him to have denied [the conduct] because he had already cooperated fully with the police and had given them full access to his telephone and it was clear that the [content] which had a [time], was  [in] his phone. It was after giving this evidence that the applicant tendered the police Facts Sheet and drew the Tribunal’s attention to the relevant paragraphs detailing the applicant’s initial admissions to the police.

4. In considering the evidence, the Tribunal notes that the police Facts Sheet does not indicate that the applicant was intoxicated or that he was trying to retrieve his mobile phone when he grabbed the woman away from the door. In saying that, there is no reason not to believe the applicant’s further evidence of the circumstances as there is nothing in the police Facts Sheet which contradicts it. Neither of these factors, i.e. the applicant’s intoxication or his desire to retrieve his mobile phone from the victim, can be considered a justification for his offending conduct. Nor is the Tribunal satisfied that the stresses experienced by the applicant leading up to the incident, including his financial difficulties, adjustment difficulties and relationship issues, justified his conduct on the night of the incident. There was a sign at the club clearly stating that [certain conduct] are prohibited. Furthermore, the victim indicated to the applicant that she did not [consent]. The applicant would have therefore been well aware that [the conduct], was not permitted.  Notwithstanding this, he still [affected] the victim and his actions triggered the situation where the victim, understandably, became distressed and wished to exit the room, during which she was grabbed by the applicant and suffered[injury]. The applicant’s actions were of sufficient seriousness to lead to him being charged and subsequently convicted of [Offence 2]. The applicant’s conduct on the night of the incident which led to his conviction does not reflect well on him.

5. The Tribunal accepts that when the police arrived at the scene the applicant was cooperative and admitted to having [engaged in conduct] and that he gave the police access to his mobile phone. Although at the hearing the applicant could not explain why he later denied [the conduct] or the audio recording, and suggested that it may have been because he was intoxicated, the Tribunal notes that the denials occurred when the applicant was at the police station during an electronically recorded interview and after the police had discovered the 1.5 hour audio recording on his mobile phone. The Tribunal considers it likely that the applicant, at that point, recognised the seriousness of his actions and the charges he was likely to face and chose to deny his actions during the electronically recorded interview.

6. The Tribunal considers that the circumstances in which the ground of cancellation arose weigh in favour of cancelling the visa.  

7. The Tribunal has also had regard to the representative’s detailed submission regarding the ground of cancellation and its purpose. In referring to the Explanatory Memorandum to the relevant amending Act inserting r.2.43(1)(ao) into the Migration Regulations in 2014, it was submitted that the purpose of this provision is to “protect the community from the risk of harm from non-citizens, and maintaining the integrity of the migration programme”. It was submitted that it was relevant for the Tribunal to consider, as part of the exercise of its discretion, whether the applicant poses a risk to the Australian community. In support of the contention that the applicant does not pose such a risk, it was submitted that the conduct which led to the applicant being convicted was an isolated incident and out of character and that the absence of a pattern of offending suggests that the risk of applicant reoffending is low. It was also submitted that the objective seriousness of the offence committed by the applicant, though not insignificant, is relatively low. It was submitted that the applicant accepted responsibility for the offence, made admissions to the police and provided access to his mobile phone when he was approached in circumstances where this was not required. He volunteered information to the Department of Immigration about the conviction. It was submitted that the willingness of the applicant to accept responsibility and cooperate with the relevant authorities shows that he is a person who respects the law and is unlikely to again engage in criminal behaviour or to otherwise represent a risk to the community.

8. The Tribunal accepts that the applicant subsequently took full responsibility for his actions and pleaded guilty to the charges at the earliest possible opportunity. The Tribunal also gives positive weight to the applicant notifying the Department of his conviction. It was noted in the psychologist report that the applicant reflects on the events of incident in disbelief and that he continues to feel burdened by guilt and deep remorse. The psychologist opined that behaviour which led to the offence is completely uncharacteristic and goes against the applicant’s personality, morals and ethics. He further stated that in his opinion the likelihood of the applicant offending in any criminal fashion is “as close to nil as is possible to predict". The Tribunal accepts that the applicant’s offending conduct, though not excusable, relates to an isolated incident. The applicant has not been convicted of any other offences and there is nothing before Tribunal to suggest that he has engaged in any other conduct that may pose a risk to the community.  These factors weigh in the applicant’s favour.

9. Submissions were also made regarding the references provided in support of the applicant by his colleagues and friends, as well as the charity work that the applicant has been involved in since shortly after his arrival in Australia. It was submitted that the applicant is a person who has contributed positively to the community and that his continued stay in Australia would not pose a risk.

10. The numerous character references received from the applicant’s work colleagues, friends and persons he has assisted describe the applicant in very positive terms and state that the applicant being charged with [Offence 2] is not consistent with their knowledge of him and that they consider the applicant to be a person of good character. The Tribunal has had regard to the character references and accorded to them appropriate weight in its considerations.

11. The Tribunal accepts that if the applicant’s visa is cancelled, [Ms A’s] visa will be consequentially cancelled under s.140 of the Act. In the circumstances, the applicant and [Ms A] will be restricted from being able to apply for further skilled or employment visas in Australia, including the permanent employer sponsored visa, which the applicant indicated he may be nominated for by his employer. The applicant will also be excluded from returning to Australia as the holder of a temporary visa for a period of 3 years. While the applicant and [Ms A] will be affected by these restrictions, the Tribunal notes that they are the intended legislative consequences of cancellation and gives them limited weight in it considerations. The applicant and [Ms A] indicated that they would depart Australia if the visa remained cancelled. Indefinite detention will therefore not be a consequence of cancellation.

12. The Tribunal has considered the hardship that would be experienced by the applicant and [Ms A] if the visa is cancelled. In relation to the hardship the applicant may experience, the applicant indicated at the hearing that while he will be able to resume employment with [Company 1] Germany if he has to return, his career prospects were much better if he could remain in Australia.

13. Given that the applicant will be able to resume employment with [Company 1] Germany, the Tribunal does not consider that the set back to his career will particularly significant. The Tribunal further notes that the cancellation of the visa will not prevent the applicant from applying for a permanent employment visa offshore should [Company 1] Australia wish to nominate him for a permanent position as the 3 years exclusion period generally only applies to temporary visas. Furthermore, [Ms A] told the Tribunal that if the visa is cancelled and the applicant had to return to Germany she would return and reside there with him as they have been together for over 8 years. The cancellation of the visa will therefore not lead to the applicant being separated from his partner. For these reasons, the Tribunal gives limited weight to the hardship that may be experienced by the applicant if the visa is cancelled.

14. At the hearing the applicant expressed a sincere concern about the consequences that his actions will have on [Ms A] career given she had no part to play in his wrongdoing. The current circumstances of [Ms A] are that she is currently employed as an [occupation] with [Company 2], a consulting company for the pharmaceutical industry. As to the hardship she may experience if the visa is cancelled, she told the Tribunal that her sudden departure from Australia would seriously disadvantage her career as she would have to resign from her position. She stated that it would take her a long time to find another job in Germany. The Tribunal accepts that [Ms A] was not in any way involved in the applicant’s wrongdoing and gives some weight to the hardship she may be experienced in favour of not cancelling the visa.

15. It was also submitted that the cancellation would cause some hardship to the applicant and [Ms A’s] employers if they had to resign from their positions at this time. The Tribunal accepts that the applicant and [Ms A’s] resignations may disadvantage their respective employers and has regard to this in its considerations.

    Overall considerations

16. The Tribunal has had regard to all of the evidence and weighed up all of the relevant considerations. The applicant is 33 year old professional who has progressed well in his career. He has aspirations of becoming a partner in a multinational consulting firm.  His friends, colleagues and managers consider him to be of good character and describe him as hardworking, determined, committed, responsible, trustworthy, caring, and willing to help others. They have all expressed their surprise at the applicant being convicted of [Offence 2], and were of the view that this was not consistent with their knowledge of him. His close friends, who appear to have knowledge of the circumstances of the incident, have indicated that the applicant is remorseful, embarrassed and ashamed of what he had done on the night of the incident. 

17. About 6 months after his arrival in Australia on a temporary business visa, the applicant engaged in unlawful conduct that resulted in him being charged with a number of offences, one of which led to a conviction of [Offence 2]. While the applicant’s offending conduct was not in any way excusable, when considering the seriousness of the offence for which the applicant was convicted, it would be considered at the lower end of the criminality scale. This is reflected by the sentence received for the offence i.e. a fine of $750. The evidence before the Tribunal suggests that the applicant’s offending conduct was uncharacteristic and that he is unlikely to reoffend. When giving oral evidence, the applicant appeared to be genuinely remorseful and ashamed of his offending conduct.

18. For the applicant, what occurred on the night of the incident was a serious error of judgement for which he will have to bear the collateral and social consequences. Notwithstanding the outcome of this review, the applicant’s criminal conviction will forever be a part of his record. He will need to declare it to the authorities of countries he travels to, including Australia, and should he apply for further visas in Australia he will still need to demonstrate that he meets the character requirements, which is likely to involve a reassessment of the facts that led to the conviction.

19. While the circumstances in which the ground of cancellation arose weigh in favour of cancelling the visa, the Tribunal considers that the favourable considerations, in combination, tip the balance in favour of not cancelling the visa. The Tribunal notes that the visa in issue is a temporary visa granted to the applicant for a specified purpose and for a limited duration. The applicant is sponsored by a multinational firm and his supervising partner has provided a letter of support indicating that the applicant is responsible for a team of up to 15 people and is involved in a number of engagements with revenues of about $AU 1 million. While the Tribunal considers that [Company 1] would be able to find someone to replace the applicant, it also considers that the applicant’s continued stay in Australia will enable him to fulfil the purpose for which the visa was granted, which is to work on the various engagements for the benefit of his nominating employer. The Tribunal does not consider that the applicant’s temporary stay in Australia will pose a risk to the Australian community. The applicant has, during his stay in Australia to date, made a positive contribution to the community through his employment, training of graduates and involvement with charities. Furthermore, the Tribunal considers that setting aside the decision will alleviate the hardship that is likely to be experienced by [Ms A], who would otherwise have to prematurely resign from her employment in Australia, despite having no part to play in the applicant’s wrongdoing.

20. In considering all of the relevant circumstances in this case, the Tribunal concludes that the visa should not be cancelled.

    DECISION

21. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    R. Skaros
    Member