Croley (Migration)

[2024] AATA 2210

Croley (Migration) [2024] AATA 2210 (4 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Danny Croley

REPRESENTATIVE:  Mr Munashe Rusamo

CASE NUMBER:  2318822

HOME AFFAIRS REFERENCE(S):          BCC2023/4606062

MEMBER:P. Maishman

DATE:4 April 2024

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

Statement made on 04 April 2024 at 4:19pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482– applicant was convicted of offences – offences are all related to his actions during a toxic relationship that has now ceased – at the lower end of severity – decision under review set aside   

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, r 2.43, Schedule 2

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 November 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant was convicted of offences against laws of the State. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 21 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s friend, Allison Strachan.

4. The applicant was represented in relation to the review.

5. 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

6. 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?

7. A visa may be cancelled under s 116(1)(g) if the Minister is satisfied 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 Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant.

   Reg 2.43 Grounds for cancellation of visa (Act, s116)

   (1)   For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:  

   (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))

8. The delegates decision identifies it received information indicating the applicant was convicted of offences against the Western Australian state laws on 5 April and 27 June 2022 and 21 July 2023.

9. The applicant gave the Tribunal transcripts of the sentencing remarks correlating with the dates identified by the delegate. The applicant gave oral evidence he does not dispute the delegates record of his convictions is correct.   

10. 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 visa should be cancelled.

    Consideration of discretion

11. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

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

12. The applicant submits he first arrived in Australia in 2011 as the holder of a working holiday visa and has held various work based visas. In November 2022 he was granted a second Temporary Skill Shortage (subclass 482) visa for the purpose of employment with his approved sponsor MPK Tree Management Pty Ltd in the skilled occupation of Arborist. 

13. James Meaney, Operations Manager, of MPK Tree Services provided a written letter confirming the applicant is its employee and attesting to the applicant’s good character and importance of his role to the business.

14. The applicant told the Tribunal the stress of the visa cancellation has affected his ability to work safely in the tree lopping business, but he continues to work in lower, safer situations.

15. 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

16. The applicant submits there is no history of non-compliance with the conditions of his past visas. There was no evidence before the Tribunal to indicate that the applicant has not been compliant with the conditions of his previous visas.

17. The Tribunal gives this some weight against exercising the discretion to cancel the applicant’s visa.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

18. The applicant has been in Australia for more than 12 years and has formed strong ties with the community and with his employer. He has formed a relationship and they plan to move in together when they can find a suitable place to rent. His prospective partner has children and they would all be emotionally distressed if the applicant’s visa is cancelled. Ms Strachan gave evidence that she and her daughter are very close to the applicant and would be devastated if the applicant is unable to stay in Australia.

19. The Tribunal accepts the applicant’s claim that he has built a strong reputation in his field in Western Australia and would struggle to find work if he had to return to the UK. 

20. The Tribunal accepts the applicant and his friends would suffer emotional distress if the applicant’s visa is cancelled. The Tribunal accepts the applicant and his prospective partner would also likely suffer some financial hardship if they could not take advantage of the pooling of their financial resources to cover their day-to-day living costs.

21. The Tribunal attributes some weight to this circumstance against exercising the discretion to cancel the visa.   

    Circumstances in which ground of cancellation arose.

22. The applicant does not claim the grounds for cancellation arose because of circumstances beyond his control. The applicant states the offences are all related to his actions during a toxic relationship that has now ceased.

23. The applicant states he and his ex-partner had been on and off for months and his ex-partner applied for a Family Violence Restraining Order (FVRO) in an attempt to end the relationship permanently. The applicant did not attend Court in response to the FVRO and ultimately the interim order was made final. The applicant breached the terms of the FVRO by contacting his ex-partner by electronic means to ask her to look after his dog, which she knew, if he went to the UK to see his unwell father. In sentencing on 5 April 2022 the magistrate accepted there was no violence or threats or malintent and considered it unlikely the applicant would reoffend. The magistrate imposed a spent conviction and fine.

24. The applicant said the police issued an order for him to stay away from the residence he shared with his ex-partner which he thought was for 24 hours, but which was in fact for 36 hours. He returned to the premises after 24 hours and the police located him there while conducting a check. His ex-partner had made no complaint. The magistrate on 27 June 2022 imposed a fine and acknowledged the applicant thought it was alright to return to the premises and remarked there was no allegation of violence and the offence was towards the lower end of the scale.

25. In relation to the Criminal Damage or Destruction of Property conviction on 21 July 2023, the applicant said he had visited his ex-partner at her insistence. The applicant sought to leave when his ex-partner raised she had been indiscrete during their relationship. The applicant decided to leave the premises to avoid conflict and was frustrated when he walked past her car and hit the wing mirror. He arranged for cost of repair to be covered which was acknowledged by the magistrate who observed the maximum fine was $36,000 or three years imprisonment. The magistrate discounted an imposed fine to $850 based on the applicants personal and mitigating circumstances.

26. The Tribunal notes the applicants convictions are for behaviours directly related to his relationship with his ex-partner and accepts the applicants evidence that relationship has completely ceased. The offences are acknowledged by the magistrates as being at the lower end of the scale. The Tribunal does however take into account that the offences were serious enough for convictions to be recorded and while they may be at the lower end of severity, they are offences that occurred and for which the applicant has been convicted.     

27. The Tribunal attributes the circumstances in which the grounds for cancellation arose some weight towards exercising the discretion to cancel the visa.

    Past and present behaviour of the visa holder towards the Department

28. The Tribunal accepts that, aside from the offences 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

29. 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.

30. 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.

31. 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

32. 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

33. The visa in question is a temporary visa.

    CONCLUSION

34. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    DECISION

35. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

    P. Maishman
    Member