Feehely (Migration)

The Administrative Appeals Tribunal considered the cancellation of Mr. Feehely's Subclass 482 (Temporary Skill Shortage) visa. The delegate of the Minister for Home Affairs had cancelled the visa under section 116(1)(g) of the *Migration Act 1958* (Cth) and regulation 2.43(1)(oa) of the *Migration Regulations 1994* (Cth) due to Mr. Feehely's criminal convictions. Mr. Feehely accepted that the ground for cancellation existed but sought the exercise of discretion not to cancel his visa.

The Tribunal was required to determine whether the ground for cancellation was made out and, if so, whether the discretion to cancel the visa should be exercised. Mr. Feehely did not dispute his criminal convictions, and the Tribunal was satisfied that the ground for cancellation under section 116(1)(g) and regulation 2.43(1)(oa) was established. As this ground did not mandate cancellation, the Tribunal proceeded to consider the exercise of discretion.

In exercising its discretion, the Tribunal weighed the factors for and against cancellation, considering matters such as the purpose of Mr. Feehely's stay, his compliance with visa conditions, the hardship that cancellation would cause, the circumstances of the offences, his behaviour, and the potential consequences of cancellation. The Tribunal noted Mr. Feehely's genuine remorse, low risk of reoffending, the availability of his previous carpentry role due to a skills shortage in Australia, and his ambition to establish a business in the carpentry sector. These factors, when balanced against the grounds for cancellation, persuaded the Tribunal that the considerations in favour of cancellation were outweighed by those against it.

Consequently, the Tribunal set aside the delegate's decision to cancel Mr. Feehely's visa and substituted it with a decision not to cancel his Subclass 482 visa.