Baig (Migration)
[2025] ARTA 420
•20 February 2025
BAIG (MIGRATION) [2025] ARTA 420 (20 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Ali Taimoor Baig
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2443478
Tribunal:General Member P Maishman
Place:Perth
Date:20 February 2025
Decision:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.
Statement made on 20 February 2025 at 5:25pm
CATCHWORDS
MIGRATION – cancellation – Subclass 485 (Temporary Graduate) visa – applicant was convicted of an offence – employer wished to sponsor the applicant for a further visa – emotional and psychological hardship caused to the applicant and partner – a compelling reason for the applicant to remain in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, r 2.43
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 485 (Temporary Graduate) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant was convicted of an offence against a law of the State of Western Australia which is a prescribed ground for cancelling the visa as described in reg 2.43(1)(oa) of the Migration Regulations 1994 (the Regulations). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 7 February 2025 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Tony Booker on behalf of the applicant’s employer and Ms Shannon MacGregor.
The applicant was represented in relation to the review.
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
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).
The Regulations may prescribe circumstances in which a visa is not to, or must, be cancelled: s 116(2) and (3). Further, the Regulations may prescribe matters to which the Minister must, must not, or may, have regard in determining whether a ground for cancellation is made out under s 116(1), (1AA), (1AB) or (1AC), and the weight to be given to such a matter: s 116(1A).
If satisfied that the ground for cancellation is made out, and any circumstances prescribed under s 116(2) or (3) are not applicable, the decision maker must proceed to consider whether the visa should be cancelled. In determining whether the visa should be cancelled, the decision-maker must have regard to all relevant circumstances, which may include matters prescribed under s 116(1A) and other matters of government policy.
Does the ground for cancellation exist?
A visa may be cancelled under s 116(1)(g) if the Minister is satisfied that a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Regulations. In the present case, the ground in reg 2.43(1)(oa) is relevant. If a visa may be cancelled under s 116(1)(g), prescribed circumstances may also exist in which a visa is not to, or must, be cancelled: s 116(2) and (3). There are currently no prescribed circumstances that apply.
For the purposes of s 116(1)(g), the grounds prescribed in s 116(1)(g) include reg 2.43(1)(oa):
(oa)in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa – that 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));…
The decision record contains information from the relevant authorities identifying that the applicant was convicted as follows:
Court and Date
Sentenced:Conviction: Outcome/Sentence:
Fremantle Magistrates
Court, 22 May 2024Exceed speed limit between 30 and 40km/h [Counts 1] FINE: $900
The applicant does not contest he was convicted of the offence as outlined in the delegates decision. The applicant concedes in his evidence to the Tribunal that there are grounds for cancelling his visa.
The Tribunal finds that the applicant was a holder of a Subclass 485 visa, which is a temporary visa other than a Bridging visa and a Special Category visa. The Tribunal finds that the applicant has been convicted of an offence against the laws of the state of Western Australia. The Tribunal concludes that there are grounds for cancelling the visa under s 116(1)(g) and reg 2.43(1)(oa).
For these reasons, the Tribunal is satisfied 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
Except for visas cancelled on the basis of a breach of visa condition under s 116(1)(b), there are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s policy guidelines (‘General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140)’), which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
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
The applicant submits he is in Australia on a Graduate visa after completing studies in automotive mechanic while the holder of a Student visa. He said he is employed at ANG Automotives and hoped to apply for a Subclass 482 visa if this visa was not cancelled and following its expiration. The applicant’s employer Mr Tony Booker confirmed he wished to sponsor the applicant for a further visa, acknowledging the good work and dedication to his job demonstrated by the applicant.
Mr Booker further told the Tribunal the applicant had excellent automotive mechanical skills and is in the unique position of being able to communicate in the native language of many Uber drivers who make up a large part of the employer’s clientele, being from a similar cultural and religious background. Mr Booker considers the applicant’s value to his clientele, and his business, a compelling reason for the applicant to remain in Australia.
The Tribunal finds the applicant is in Australia for the purpose of undertaking temporary work and was previously in Australia for the purpose of undertaking studies. The Tribunal finds the purpose of the applicant’s travel to Australia accords with the applicant’s ongoing activities in Australia.
The Tribunal gives the applicant’s purpose for travel and stay in Australia some weight against exercising the discretion to cancel the applicant’s visa.
The extent of compliance with visa conditions
The delegates decision record outlines historical non-compliance while the holder of a student visa and not maintaining enrolment in a course at the same, or higher, level in relation to which the visa was granted.
The applicant submitted it was not his intention to be non-compliant while the holder of a subclass 500 visa. He initially had difficulty fitting in with the requirements of the Australian education system. He switched to undertake lower-level courses in automotive mechanics thinking he was complying with his visa conditions because he continued to be a student. The applicant says he acquired the belief he continued to comply following discussion with education consultants, migration agents and other persons qualified to provide advice on migration related matters. The applicant confirmed to the Tribunal he had taken no action against any of the advisors in relation to being poorly advised.
The delegate notes there is no information the visa holder has not been compliant with conditions attached to his current or other previously held visas.
The Tribunal finds the applicant has previously failed to comply with the conditions of his visa. The Tribunal notes the obligation is on the visa holder to be cognisant of the conditions attached to that visa. There is no independent information to support the applicant’s suggestion that he was poorly advised.
The Tribunal gives this consideration some weight towards exercising the discretion to cancel the applicant’s visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant submits cancellation of its fees would prevent him from being granted various categories of visa for a period of three years from cancellation and the provisions of section 48 of the migration act would bar him from applying for any substantive fees which would prejudice the applicant.
The conditions that are imposed restricting visa applications for visa holders who have their visa cancelled are a legitimate consequence of the application of the migration legislation. The Tribunal does not attribute any weight in relation to the hardship caused by the proper application of the legislation against exercising the discretion to cancel the applicant’s visa.
The applicant and Ms McGregor gave evidence individually of the emotional and psychological hardship that would suffer if the applicant’s visa was cancelled. In summary their evidence is that they have known each other for two years. They have been dating for eight months. They do not live with each other because of the applicant’s religious beliefs. They plan to get married and have children. Ms McGregor would suffer financial hardship if she had to meet travel costs for them to visit each other.
The Tribunal acknowledges they would be some emotional and psychological hardship caused to the applicant and Ms McGregor if the applicant’s visa was cancelled and he was required to depart Australia.
Mr Tony Booker submitted the applicant is a highly regarded and skilful employee. His cultural and religious background is a significant positive factor for the business of vehicle inspections, particularly for ride share clientele having their vehicles inspect. Mr Booker submitted the business would suffer financially without the skills and knowledge of the applicant.
The Tribunal accepts the applicant’s employer would incur some hardship having difficulty finding an employee with the qualifications, skills and knowledge to replace the applicant.
The Tribunal attributes a little weight to this circumstance against exercising the discretion to cancel the visa.
Circumstances in which ground of cancellation arose.
The applicant does not claim the grounds for cancellation arose because of circumstances beyond his control. The Tribunal observed that despite only being convicted once, it was unlikely that ignoring the speed limit was a one-off incident given the applicant’s assertion he was unaware that he was speeding. In the Tribunal’s view it is likely that he frequently travels at excessive speed if he genuinely didn’t realise he was going 30 to 40 km faster than those other vehicles around him.
The applicant and Mr Booker both told the Tribunal the applicant’s employer took non-compliance with the road rules very seriously given the nature of the work in which the applicant is involved. Mr Booker gave evidence that he is convinced the applicant has learnt a lesson and has a clear understanding that further breaches of road rules may result in him losing his license which would put his employment in jeopardy.
The Tribunal notes the penalty imposed for the conviction was a $900 fine and the loss of the merit points. There is no evidence before the Tribunal that the applicant has any other convictions. The Tribunal noted the applicant did not appear to have paid each of the instalments in relation to the fine, however accepts based on information received after the hearing, that the applicant had been repaying a parking fine. The applicant made the point that had he not complied with the repayment conditions his license would be cancelled.
The Tribunal does not consider this conviction a trivial matter. Clearly travelling in a motor vehicle at excessive speed can result in the death of innocent people. In the Tribunal’s view the penalties for the conviction are fortunate and expects the penalties would have been different, as would this decision, had the conviction involved the death of an innocent party. It should not come as a surprise to a visa holder that breaches of the host countries laws would potentially result in the cancellation of the visa and has a consequence the visa holder no longer being entitled to remain in the host country.
The Tribunal gives weight to the applicant having just a single conviction. The Tribunal accepts the applicant’s evidence that he has not incurred any other penalties not disclosed to the Tribunal. The Tribunal gives weight to Mr Booker’s evidence that the applicant has learnt from his conviction on the basis that Mr Booker works closely with the applicant, and his understanding that the applicant recognises he would likely lose his means of financial support if his behaviour were repeated.
The Tribunal attributes the circumstances in which the grounds for cancellation arose some weight against exercising the discretion to cancel the visa.
Past and present behaviour of the visa holder towards the Department
The Tribunal accepts that, aside from the conviction recorded, there is no adverse information in relation to the applicant’s past and present behaviour towards the Department. The Tribunal gives this factor neutral weight.
Whether there would be consequential cancellations under s 140
There is no evidence before the Tribunal to indicate that there are any persons who would be affected by the consequential cancellations under s.140. The Tribunal gives this factor neutral weight.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention although he would have limited opportunities to make visa applications onshore due to the limitations imposed by s 48. The applicant may also be subject to an exclusion period if he were to make an application offshore.
The Tribunal has considered these consequences, but it places little weight on this factor against the visa being cancelled.
Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation
There are no children who would be affected by the cancelation of the visa. The applicant does not have family in Australia. The Tribunal finds that Australia’s international obligations will not be breached as a result of the cancellation.
If a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The visa in question is a temporary visa.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.
Date(s) of hearing: 7 February 2025
Representative for the Applicant: Mrs Mayo Tuohy (MARN: 0956785)
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