Feehely (Migration)

[2022] AATA 1142

Feehely (Migration) [2022] AATA 1142 (20 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr David Feehely

CASE NUMBER:  2108726

HOME AFFAIRS REFERENCE(S):          BCC2021/45875

MEMBER:Mary Sheargold

DATE:20 April 2022

PLACE OF DECISION:  Melbourne

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 20 April 2022 at 2:33pm

CATCHWORDS

MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – criminal convictions, community corrections order and behavioural change program – discretion to cancel visa – financial and personal hardship – toxic relationship, actions by both applicant and partner and circumstances of offences – relationship ceased – genuine remorse and low risk of reoffending – skills shortage in work sector and previous job still available if visa reinstated – character references – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(g)

Migration Regulations 1994 (Cth), r 2.43(1)(oa)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. David Feehely is a 35 year old Irish national who has worked in Australia as a carpenter since 2016.  In June 2019, he commenced a relationship with Ms Charlotte Stevens, a British national.  By September 2019, the relationship had become violent and dangerous; Victoria Police issued intervention orders restraining each party from contact with the other at various points.  Ultimately, Mr Feehely found himself in undesirable circumstances and admits that his violent acts warranted at least some of the criminal charges to which he pleaded guilty in the Moorabbin Magistrates’ Court in May 2021.  He was sentenced to a 24-month supervised community corrections order and was directed to participate in a men’s behaviour change program.  After these convictions were recorded, the Department took steps to cancel his Subclass 482 Temporary Skill Shortage visa.

2. Mr Feehely appeared before the Tribunal by MS Teams video link on 13 April 2022 to give evidence and present arguments.  My preference was to hear Mr Feehely’s evidence in person, but I accepted his request to attend the hearing by video link due to his anxiety and fear of leaving his home that has resulted since his criminal convictions.  He has not worked since his visa was cancelled, and stated he was unable to secure the services of a representative to assist him at review.

3. I am tasked with determining whether the ground to cancel Mr Feehely’s visa is made out and if so, whether the discretion to cancel his visa should be exercised.  Mr Feehely accepts that his criminal convictions are grounds under which his visa can be cancelled, but he requests the exercise of discretion not to cancel his visa primarily on the basis that there is a known skills shortage in carpentry in Australia especially in light of the Covid-19 pandemic.  On balance, the Tribunal is persuaded that the considerations in favour of cancelling Mr Feehely’s visa are outweighed by those against it, and so for the reasons set out below, I have decided to set aside the delegate’s decision and substitute it with a decision not to cancel his Subclass 482 visa.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. On 29 June 2021, a delegate of the Minister for Home Affairs cancelled Mr Feehely’s Subclass 482 (Temporary Skills Shortage) visa under s 116 of the Migration Act 1958 (Cth) (the Act).  The Minister may cancel a visa if they are satisfied that certain grounds specified in that provision are made out.

5. The delegate cancelled Mr Feehely’s visa under s.116(1)(g) because the prescribed condition set out in r.2.43(1)(oa) exists: specifically, he has been convicted of offences against the State of Victoria. I must decide whether that ground for cancellation is made out, and if so, whether, having regard to all the relevant circumstances (that may include matters of government policy), the visa should be cancelled.

   Does the ground for cancellation exist?

6. 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.

7. Mr Feehely does not dispute that he has been convicted of offences against the State of Victoria.  I have considered the documentary evidence regarding those convictions and Mr Feehely’s sentencing at Moorabbin Magistrates’ Court on 19 May 2021. There is no imputation that there is any inaccuracy in those documents.

8. Therefore, I am satisfied that the ground for cancellation in s 116(1)(g) of the Act and r.2.43(1)(oa) of the Regulations exists. As this ground does not require mandatory cancellation under s 116(3), I must proceed to consider whether the visa should be cancelled.

   Consideration of discretion

9. The Minister’s power to cancel a visa pursuant to s.116(1) of the Act is discretionary. Therefore, I must now decide whether or not to exercise the discretion to cancel Mr Feehely’s visa. Noting that there are no prescribed considerations in either the Act or the Regulations, I have weighed up all the evidence before me from Mr Feehely against the matters set out in the Department’s Procedures Advice Manual (PAM3) regarding the exercise of visa cancellation powers.  To make my decision, I have asked the following questions:

   a.What was the purpose of Mr Feehely’s travel to and stay in Australia?

   b.To what extent has he complied with his visa conditions?

   c.What degree of hardship may be caused if his visa is cancelled?

   d.In what circumstances did the ground for cancellation arise?

   e.How has Mr Feehely behaved towards the Department in the past? How has he behaved during this process?

   f.Would any other visas be cancelled as a consequence of cancelling Mr Feehely’s visa?

   g.What are the legal consequences of cancelling Mr Feehely’s visa?

   h.Does Australia have any international obligations that may arise if Mr Feehely’s visa was cancelled?

10. In reaching my findings, I have considered the applicant’s evidence in relation to these matters as set out below.

    What was the purpose of Mr Feehely’s travel to and stay in Australia?

11. Mr Feehely was granted this Subclass 482 visa on 23 July 2020, sponsored by his employer Markscon Pty Ltd to work in his nominated skilled occupation of Carpenter.  The Subclass 482 visa scheme requires visa holders to work for an employer approved by the Department to sponsor them in their nominated skilled occupation.  Mr Feehely’s evidence is that his role with Markscon is still available should his visa be reinstated.  This is confirmed by the letter his manager provided to the Department at the time the Notice of Intent to Consider Cancellation was issued.  Mr Feehely explained to me that he has longer term ambitions to establish his own labour hire business in carpentry, noting not only the lack of carpenters in Melbourne at present but the lack of properly trained and experienced carpenters.

12. Based on the evidence before me, I am satisfied that Mr Feehely has come to Australia to work as a carpenter and that the purpose of him travelling and remaining in Australia is to continue in this line of work.  Therefore, I give this consideration some weight against cancelling the visa.

    To what extent has Mr Feehely complied with his visa conditions?

13. Mr Feehely’s Subclass 482 visa was granted with 2 conditions: condition 8501, requiring him to maintain adequate arrangements for health insurance while he is in Australia, and condition 8607, requiring him to work in his nominated skilled occupation for the person who is approved to sponsor him.

14. There is no evidence before me to suggest that Mr Feehely did not comply with condition 8501 or condition 8607 at any time whilst he held his Subclass 482 visa.

15. Therefore, I give this consideration a little weight against cancelling the visa.

    What degree of hardship may be caused if Mr Feehely’s visa is cancelled?

16. I have considered the potential for financial, psychological, emotional and other hardships that Mr Feehely may suffer if his visa is cancelled. Mr Feehely’s evidence at the hearing was that he has exhausted his personal savings and has accrued significant debts to his brother in Ireland, who has sent him over AU$20,000 to assist with his cost of living in Melbourne as he has not held work rights since the cancellation of his visa.  At the hearing, I noted my concern that Mr Feehely could and perhaps should have taken steps to follow up his request for a Bridging E visa with work rights while he awaited his Tribunal hearing. Mr Feehely has suffered significant financial hardship already, by exhausting his savings and by having been unable to work for his sponsor since his visa was cancelled.

17. The question of emotional and psychological hardship is a complex one in Mr Feehely’s case.  Mr Feehely was very forthright with his evidence at the hearing, explaining that he felt he had benefitted from the passage of time between his convictions and visa cancellation and the Tribunal hearing because he had been able to complete his men’s behavioural change program required as part of his sentencing, and that this experience had been transformational for him.  On several occasions Mr Feehely pleaded with me to understand that he was not trying to ‘butter [me] up’ with his exhibited contrition and promises that he is a changed man after completing this program. 

18. However, having heard Mr Feehely’s sworn evidence in its entirety, and with the benefit of considering all the documentary evidence before me, I am persuaded that given all the circumstances surrounding Mr Feehely’s criminal convictions, he will suffer further psychological hardship if his visa is cancelled.  This is because it is clear to me that, whilst accepting his role in the ‘toxic’ relationship he described with Ms Stevens, he has been the victim of her drug and alcohol fuelled violent tendencies on repeated occasions.  My conclusions regarding this relationship are detailed further below, but at this juncture, it is appropriate to note simply that Mr Feehely will likely feel that the interests of justice have not fully been served if his visa is cancelled and hers is not, and in my view, this will likely have a negative impact on his mental health going forward.

19. Additionally, Mr Feehely stated on more than one occasion that he would feel humiliated if he had to return to Ireland ‘with his tail between his legs’ and to try and start over after working in Australia and New Zealand for so long.  Mr Feehely does not believe he will have the same opportunities for work in Ireland.  He also explained that his mother has repartnered since his father’s passing in 2008; her new partner has a terminal illness, and he and his brothers have chosen not to tell her about his current predicament as he does not wish to inflict further anxiety and worry upon her.  It is clear that Mr Feehely carries a burden in respect of his family in Ireland.

20. Mr Feehely has provided a body of character references supporting this application.  Notably, Ms Collette Martin from the Department of Families, Fairness and Housing wrote in July 2021 that she has drawn on her skills and experience in working with adults who are impacted by family violence to assess Mr Feehely’s behaviour and conduct, which she states is indicative of a man remorseful for his poor choices.  Ms Martin asserts that Mr Feehely did not ask him for a reference letter from her.  Mr Feehely has provided a reference from his former partner, Tegan Owen, a psychiatric and forensic nurse from New Zealand, who describes the conduct by Mr Feehely leading to his convictions as out of character and that he never displayed any aggression towards her even during their disagreements.  These referees are not called on as expert witnesses to Mr Feehely’s application.  However, I give their statements some weight having considered their professional backgrounds and the fact that they have willingly come forward to support Mr Feehely.

21. Having considered all of the evidence available to me, I am persuaded that Mr Feehely will suffer significant financial and psychological hardship if his visa is cancelled.  Therefore, I give this consideration some weight against cancelling the visa.

    In what circumstances did the ground for cancellation arise?

22. Family violence is a serious issue in Australia.  In this analysis, I will explore the totality of the circumstances leading to Mr Feehely being in a position where he faced a number of criminal charges.  A brief chronology is instructive.  At the hearing, I asked Mr Feehely to set out in writing his recollection of all the events and circumstances culminating in his arrest, incarceration, and ultimately, his convictions and sentencing.  He has provided a letter outlining the key dates in his relationship with Ms Stevens. 

23. I note that Mr Feehely has been unable to provide copies of documentation from Victoria Police regarding specific incidents of violence toward him by Ms Stevens; I accept that because he chose not to press charges against Ms Stevens at any point, he is not party to such records and is not entitled to access them.  At the hearing, Mr Feehely was able to articulate in adequate detail the salient points and I am prepared to accept his recollections as accurate.

24. On 20 September 2019, Ms Stevens was arrested for assault and criminal damage.  Specifically, she repeatedly struck Mr Feehely in the face while they were out in public, then she followed Mr Feehely home, smashed a window, entered the home, and continued to assault him.  The police attended Mr Feehely’s home and arrested her, and she was issued with an intervention order on 26 September 2019 with Mr Feehely listed as an affected family member.

25. Mr Feehely stated that Ms Stevens pleaded with him to have the order removed because it could compromise her employment as a disability support worker, and so he took steps to have the order removed.  In January 2020, a court ordered the revocation of the intervention order.  Mr Feehely’s evidence is that immediately thereafter, Ms Stevens was the complainant in an intervention order made against him.  His evidence is that she told him she sought this order to prevent him from being able to obtain another order against her in the future.

26. In February 2020, Mr Feehely was assaulted by Ms Stevens who was at the time allegedly under the influence of alcohol and cocaine.  Mr Feehely states that they had agreed to give up drinking alcohol in January 2020 because they realised it was impacting on their relationship, and so he was not happy that she had broken their agreement.  He stated he had to call the police for assistance as Ms Stevens had become ‘out of control’.  He told me that while he waited for the police to arrive, Ms Stevens took his car keys, got into his garaged vehicle and drove it straight through the closed garage door to evade the police.  He stated that the police informed him that she would be arrested and charged with assault, theft of a motor vehicle and for breaching the intervention order, but that he asked for no charges to be made because he did not want to jeopardise her employment.

27. In his written statement, Mr Feehely recounts an incident where Ms Stevens struck him with a glass bottle, then used the broken glass to cut her stomach and arm.  He stated that her arm was cut so badly it required medical attention, and that Ms Stevens lied to the paramedics and doctors stating she had slipped and fallen on the glass, creating the impression that in fact Mr Feehely had inflicted the injuries on her. 

28. Mr Feehely gave detailed evidence regarding several other assaults, and told me that he had had to attend work on occasions with two black eyes.  He explained that he often felt humiliated and embarrassed and that his co workers were not convinced by the excuses he made regarding his injuries.  Mr Feehely stated repeatedly that Ms Stevens would only become violent when under the influence of alcohol or other substances, and that he believed she was truly remorseful about each incident afterwards.  I understand that Mr Feehely does not have documented police reports to verify his evidence in relation to his abuse, but having listened to him discuss his circumstances with me for a considerable time, I am satisfied that he has attempted to give an honest account of his experiences.

29. The impact of family violence cannot be underestimated.  I questioned Mr Feehely regarding Ms Stevens and whether there was a disparity in size between them; he reluctantly admitted that she was taller and significantly heavier than he was.  He emphasised that he did not wish to target Ms Stevens or turn her into the cause of his problems.  He was able to distinguish his acts and behaviour from hers and did not at any point seek to blame her for his actions.  Having said that, it is clear that Mr Feehely has been deeply affected by the repeated pattern of violence towards him by Ms Stevens.  Mr Feehely’s evidence suggests that Ms Steven’s violence was not just physical but psychological too.  During the hearing, he told me that she would continually use the intervention order she had taken out against him as a threat, and that she would deliberately cajole him and inflame their arguments.

30. Before I understood this background, Mr Feehely had explained to me in careful detail the reasons he had found himself arrested and incarcerated in 2021.  He reflected on his experience in the men’s behaviour change program he completed and noted that he now realised he had a fear of being alone and that this fuelled him remaining in what he now views as a ‘toxic’ relationship with Ms Stevens.  He told me that he can see now that they brought out the worst in each other, especially when alcohol was involved.  His friends had grown tired of listening to his complaints and encouraged him to separate from her permanently.  Mr Feehely told me that he frequently argued with Ms Stevens and that their arguments escalated rapidly.

31. When I reviewed Mr Feehely’s criminal convictions prior to the hearing, I had built an image of a violent man who had harassed, intimidated and attacked his former partner.  Mr Feehely was convicted of burglary, theft, stalking, criminal damage, contravening a Family Violence final intervention order, 2 counts of committing an indictable offence whilst of bail, and 7 counts of contravention of a conduct condition of bail. 

32. However, the man on paper did not appear to be the man who presented evidence and arguments at the Tribunal hearing.  Mr Feehely’s evidence at the hearing was that he had been arrested and incarcerated for 70 days prior to having his matter heard in court, and that only learned of a number of these charges on the morning of his hearing.  Mr Feehely told me that his legal aid lawyer had advised him that if he pleaded not guilty to any of them, he would likely remain in remand until Christmas.  He told me that he would have pleaded guilty to murder that morning if it meant he would be released from prison.

33. Mr Feehely’s recollection of the incidents leading to these charges is, in summary, that despite Ms Stevens having an intervention order preventing him from contacting her, she had wished for them to live together at various points and so he continued to live with her, but that she would then use the intervention order as a means to gain advantage in any disagreement they had.  His view is that the charges of criminal damage relate to an incident where he was alone in the house after Ms Stevens moved out without his knowledge, and that he had become angry and had kicked a can of paint that had covered the walls, and thrown other items in the house causing damage.  It was a rental property and at the beginning of the hearing, Mr Feehely told me that he hopes to be able to contact the landlord to apologise for his reckless behaviour and to pay for the damage he caused as he is humiliated by the incident. 

1. Mr Feehely told me that the charges of burglary and theft arose from an incident at the same property where he had entered through an unlocked, broken door (that he alleges Ms Stevens broke) and retrieved a laptop he believed to be his.  He believes the stalking charges relate to phone calls and text messages he sent to Ms Stevens, her ex-partner and another friend of Ms Stevens.

2. Mr Feehely showed me that he accepts responsibility for his mistakes and has shown clear remorse.  He advised me that he has been designated at the lowest risk level for reoffending under his community corrections order, and that his case officer now checks in with him only once every few months.  Ms Stevens’ alleged behaviour towards Mr Feehely was repugnant and unacceptable, but this does not excuse Mr Feehely’s poor choices.  Mr Feehely’s detailed recollection of the lessons and experiences in the men’s behaviour change program appeared completely genuine and in my view, demonstrate that he has truly changed his outlook towards relationships, himself, and his family. 

3. Family violence is unacceptable.  Mr Feehely’s criminal record will remain with him for the rest of his life.  I am conscious that it may preclude him obtaining any further visas to live and work in Australia.  However, when I consider the totality of the circumstances leading Mr Feehely to the situation where he has found himself, I am satisfied that it does not warrant more than a little weight in favour of cancelling his visa.

   How has Mr Feehely behaved towards the Department in the past? How has he behaved during this process?

4. Mr Feehely has been open and honest with the Department and with the Tribunal at review.  He gave honest answers to all questions asked at the Tribunal hearing.  He showed genuine remorse and contrition for his past conduct that has led to him earning a criminal record.  In my view, he has been respectful in his dealings with Department and the Tribunal, and has not sought to make excuses for his circumstances.

5. Therefore, I give this consideration some weight against cancelling the visa.

   Would any other visas be cancelled as a consequence of cancelling Mr Feehely’s visa?

6. Mr Feehely does not have any dependents listed on his Subclass 482 visa. His evidence is that his relationship with Ms Stevens has ended and that he does not intend to communicate with her again. There would be no consequential cancellations under s.140 of the Act, and so I give this consideration a little weight in favour of cancelling the visa.

   What are the legal consequences of cancelling Mr Feehely’s visa?

7. A decision to cancel Mr Feehely’s visa means he may become an unlawful non-citizen who may be liable for detention under s.189 of the Act and removal from Australia under s.198 of the Act. He would also be affected by s.48 of the Act, which would severely limit his options to apply for further visas while in Australia.

8. Therefore, I give this consideration a little weight against cancelling the visa.

   Does Australia have any international obligations that may arise if Mr Feehely’s visa was cancelled?

9. Mr Feehely has not made any claims that he fears for his safety or that of his family if his visa is cancelled and he returns to Ireland.  There is no evidence before me to suggest that any of Australia’s international obligations would be engaged if Mr Feehely’s Subclass 482 visa is cancelled.  Therefore, I give this consideration a little weight in favour of cancelling the visa.

   Are there any other relevant matters the Tribunal should consider?

10. Mr Feehely has not identified any other matters of relevance for the Tribunal to consider.  His mother and siblings reside in Ireland and their migration status is not impacted by the Tribunal’s decision in this case.  Mr Feehely does not have any children.  I am satisfied that no other relevant matters warrant consideration at the time of my decision.

    Conclusion

11. Considering the circumstances as a whole, I have decided that Mr Feehely’s visa should not be cancelled.

    DECISION

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

    Mary Sheargold
    Member