INDAR SINGH (MIGRATION) - [2024] ARTA 192

INDAR SINGH (MIGRATION) [2024] ARTA 192 (12 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Keshvindar Singh Indar Singh
Respondent:  Minister for Home Affairs
Tribunal Number:  2429458
Tribunal:Senior Member A Mercer
Place:Melbourne
Date:12 November 2024
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 12 November at 02:15pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 - Temporary Skill Shortage – applicant convicted of an offense – relationship in Australia – migration history – new business nomination – skilled employment offers – financial hardship – decision under review set aside
LEGISLATION
Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, r 2.43
CASES
Wan v MIMA (2001) 107 FCR 133
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 482 - Temporary Skill Shortage 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 a prescribed ground for cancellation existed. The delegate found that the applicant had been convicted on 17 April 2024 of careless driving causing grievous bodily harm or death, and of having exceeded the blood alcohol limit while driving, as a result of which the applicant was disqualified from driving for 12 months and fined $1,900 and $1,150 respectively. The delegate noted that having a criminal conviction was a prescribed ground for cancellation pursuant to r.2.43(1)(oa) and s.116(1)(g). Although cancellation was not mandatory under these circumstances, the delegate found that the factors in favour of cancelling the applicant’s visa outweighed those against.
The Tribunal received a review application from the applicant on 21 August 2024. It was accompanied by a copy of the delegate’s decision.
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 30 October 2024 to give evidence and present arguments.
The Tribunal exercised its discretion to hold the hearing by videoconference, having determined that it was reasonable to hold a hearing by videoconference, given the nature of this matter and the individual circumstances of the applicant, who resided in Western Australia, and the Presiding Member, who is based in the Tribunal’s Victorian registry. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
Following the hearing, the applicant provided an additional letter from his most recent former employer on 1 November 2024.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF LAW, 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 Migration Regulations 1994 (Cth) (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.
Regulation 2.43(1)(oa) provides as follows:
…
(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));
…
Departmental history
The Department’s records indicate that the applicant was granted a subclass 482 visa on 24 November 2022, valid until 24 November 2024.
On 19 June 2024, a Departmental officer (the delegate) sent a Notice of Intention to Consider Cancellation (NOICC) to the applicant, based on evidence of the fact that he had the following criminal convictions:

Sentence Date

Court

Offence

Sentence

17 April 2024

Joondalup Magistrates Court, WA

Careless driving causing death, GBH or bodily harm

Exceed 0.08g alcohol per 100ml of blood

[Counts 1] Mdl disqualified: 3 months – concurrent; FINE: $1900

[Counts 1] FINE $1150; Mdl, disqualified: 9 months – Concurrent

The applicant was invited to respond and did so on 23 June 2024. In his response, he made the following points:
…
I made a terrible mistake on the 25th of February 2024 that has scarred me, I’m disgusted with myself for the mistake that I did, that was my first and last time. Upon receiving the court notice I immediately pleaded guilty. I promise that I will never do this again. On the day of the incident, I finished work, was having a really bad day, had a few beers on an empty stomach, I felt I was ok to drive and I drove, I was driving on auto cruise and lost control. I am truly ashamed and will never drive after consuming alcohol again. I hit my head on the steering wheel and blacked out for a few seconds and instantly came out to see if the other person was ok. By the time I came out she was already out of her car, I asked her if she was ok and apologized to the lady immediately and when the police arrive, I obeyed every instruction given by them. I am not chaotic or self destructive person. I am truly sorry and shameful that this mistake that will be on my records from now on. I will never make this mistake again.
A brief note about myself, I have lived in Australia for more than 5 years and I have never gotten into any trouble prior to this, I am a law abiding person as I take my temporary residence in Australia seriously and hope to turn it into a permanent residence in the future as my parents have passed away back in Malaysia and would like to settle down in Australia if allowed. I am a good worker and a good person, all I want to do is to build a good life for myself. I can provide character references from my employers (current and previous) and also from my friends and acquaintances if required.
I plead with you to not cancel my visa as I have built a life for myself here in Australia, I am working full time, paying my taxes and building a better future for myself. If my visa is cancelled, my future with be in jeopardy as I wont be able to get a good job back in Malaysia. There are too much of political corruption in Malaysia and racial biasness in the job market for me to restart my career path and build a life. This cancellation may also end my relationship with my partner as we are planning to get married next year, and should I have to leave to country, I will have to restart from the bottom and wont be in a position to get married.
I would like to end this appeal letter by imploring your good self to not cancel my visa due to this shameful mistake that I have made. I promise that it was my first and last time as I will never drink and drive again. I will gladly do any community service asked to prove that I am serious to live in Australia and to abide by its law.
…
Given the applicant’s criminal convictions, the delegate found that a prescribed ground (set out in r.2.43(1)(oa) existed pursuant to s.116(1)(g) and therefore the applicant’s subclass 482 visa was liable to cancellation.
As cancellation was not mandatory, the delegate considered the factors for and against cancelling the applicant’s visa, taking into account the guidelines set out in the Department’s Procedural Instruction General visa cancellation powers (s109, s116, s128, s134B and s140) on visa cancellation. These included the purpose of the applicant’s travel to and stay in Australia, the extent of his compliance with his visa conditions, the degree of hardship that might be caused to the applicant and any family members if his visa were cancelled, the circumstances in which the ground for cancellation arose, the applicant’s past and present behaviour towards the Department, whether any consequential cancellations might result, the legal consequences of cancelling the visa, Australia’s international obligations (including the best interests of any child or children), and/or any other relevant matters.
The delegate noted the applicant’s migration history, including his visits to Australia between 2008 and 2010 and the fact that he had studied in Australia from 2011 to 2013 and from 2019 to 2021, and the grant of the subclass 482 visa to him on 24 November 2022 based on his nomination as a Café or Restaurant Manager by The Trustee for Bask Cornish Arms Unit Trust (trading as the Cornish Arms Hotel). The delegate noted that the applicant had recently been nominated for the same occupation by another employer, Anything LA Pty Ltd, with that nomination being approved on 7 June 2023. The delegate accepted that the applicant’s current circumstances appeared to be in line with the purpose of the subclass 482 visa program, and gave this factor some weight in favour of not cancelling his visa.
The delegate also gave some weight to the fact that the applicant had held 16 Australian visas and there was no evidence that he had not complied with the conditions of those visas.
The delegate also accepted that cancellation of the applicant’s visa would cause the applicant some hardship, emotionally and financially, to the applicant and his prospective spouse, the delegate did not accept that the applicant would be unable to marry, or apply for a visa to return to Australia in future (although the delegate acknowledged that the applicant would face a 3 year bar on being granted a further visa, unless he was able to obtain a waiver). The delegate therefore gave some weight to this factor in favour of not cancelling the applicant’s visa.
However, the delegate considered the circumstances in which the ground for cancellation arose to be serious, noting that the car accident in which the applicant was involved was entirely his fault and occurred while he was drink driving, and had resulted in injuries to the other driver. The delegate acknowledged that the applicant was remorseful but found that it was not outside the applicant’s control that he drank on an empty stomach after a ‘really bad day’ and chose to drive, particularly since he could be taken to be aware of Australia’s drink driving laws given his long term residence in Australia. The delegate gave this factor significant weight in favour of cancelling the applicant’s visa.
The delegate accepted that the applicant had been cooperative with the Department but gave little weight to this in favour of, or against, cancelling his visa. The delegate noted that cancelling the visa would make the applicant an unlawful non-citizen and therefore liable to immigration detention but noted that he could apply for a bridging visa E to appeal any cancellation decision or to make arrangements to depart Australia. The delegate accepted that the applicant would be subject to s.48 of the Act, limiting the visas that he could apply for onshore, and to a 3 year ban for offshore visa applications (unless he sought and received a waiver). The delegate gave some weight to these factors in favour of not cancelling the applicant’s visa.
The delegate was not satisfied that any of Australia’s international obligations would be breached if the applicant’s visa was cancelled. The delegate noted that the Australian government was committed to minimising alcohol, tobacco and other drug-related harms, including drink-driving, and that the applicant was over twice the legal limit for driving when he had the accident for which he was convicted. While the delegate acknowledged the applicant’s remorse and statement that he would never drink and drive again, the delegate noted that the applicant had not indicated that he had undertaken any counselling or programs in relation to coping without using alcohol. The delegate considered that the applicant had demonstrated a disregard for Australian laws and the safety and wellbeing of the Australian community, and gave this factor weight in favour of cancelling his visa.
After considering all of the available information, the delegate considered that the factors in favour of cancelling the applicant’s visa outweighed those against.
Tribunal history
On 22 October 2024, the applicant provided a written statement and several character reference letters. In his statement, the applicant made the following points:
…
Late February I was involved in a car crash while I was intoxicated. The incident still haunts me until today. I made a terrible mistake by driving that day, I was my first and last time. I thank god that the lady in the other car was not injured because of the accident. That was the first thing I checked after getting out of the car.
I am truly remorseful and deeply regret to have done such a horrible thing. I have learned my lesson. The accident has caused such a rollercoaster of ripple effect such as a huge fine, suspension of license, cancellation of my visa, no work rights and now this appeal with AAT.
A brief description on myself, I am a restaurant manger by trade and I am good at my job. I enjoy what I do as well. I love my family and friends here in Australia. I donate blood, help around in the local Sikh temple when I am free. I always try my best to help anyone I can within my capabilities. I do not wish for the life I have built here to end drastically due to one mistake I made.
I do hope my appeal is considered and that my visa is reinstated.
…
At the hearing on 30 October 2024, the applicant confirmed the contents of his written statements, but clarified that his relationship with his partner had ended in or about July 2024 in the aftermath of the car accident, and his consequent visa cancellation and loss of employment.
The applicant told the Tribunal that at the time that the car accident occurred, he was having some personal problems with his relationship. Although he rarely drank after work, on this particular day, he did do so, and did so on an empty stomach. The applicant said that normally when he drank a reasonable amount, he would take an Uber, but in this case, he believed that he was OK to drive. He said that the car was on cruise control and therefore he could not decrease his speed quickly enough to avoid hitting another car and then he momentarily blacked out. When he came to, he checked on the other motorist and then the police arrived. He cooperated fully with the police as he accepted he was at fault, and he was scared as he had never been involved with the police before.
He did not attend court when the charges were heard as he pleaded guilty and was prepared to accept whatever sentence(s) were handed down. He clarified that his driver’s licence was suspended for 9 months and would be reinstated at the end of November 2024. The reinstatement was not subject to any conditions and he had not been required by the Court to undertake any rehabilitation or similar courses. The applicant told the Tribunal that he had not undertaken any counselling or undertaken a drink driving course as the accident was a one off incident and he did not normally drink much at all, much less drive, while drinking. He indicated, however, that if the Department considered he should undertake such a course, then he was willing to do so. However, he told the Tribunal that he did not consider that he had an ongoing problem with drinking and he did not anticipate ever being in the same circumstances that led to the car accident in February 2024.
In response to the Tribunal’s query, the applicant said that his subclass 482 visa was originally granted on 24 November 2022 on the basis of his nomination as a Cafe or Restaurant Manager at the Cornish Arms pub in Melbourne, but at the time of the car accident in February 2024, he had transferred his visa to a new nominator, Everything LA Pty Ltd, in Perth, WA, which ran a Malaysian restaurant. The applicant said that it was a better paying job and he wanted to try something different. Once his visa was cancelled and he lodged the review application with the Tribunal, he was granted a bridging visa, but it did not have work rights and by the time he was advised that he could apply to have his work rights reinstated, he was invited to the Tribunal hearing so he decided to attend that and see what the situation was after the hearing. The applicant said that in the meantime, he had got by financially by using his savings and rarely going out, and some of his friends had supported him as well.
The applicant told the Tribunal that his most recent employer had indicated that it would re-employ him if his visa status was resolved, and was also prepared to nominate him for permanent residence or for another subclass 482 visa as a Café or Restaurant Manager. He had also been told this by his former employer at the Cornish Arms in Melbourne. The applicant told the Tribunal that he had always hoped that after accumulating a period of work experience in his field, he would be able to apply for permanent residence. He said that he was good at his job, and the hospitality industry in Australia was still recovering after the COVID19 pandemic related lockdowns and had significant staff shortages still, so there was a need for people with his skills, experience and qualifications. The applicant told the Tribunal that he would probably prefer to make a skilled visa application in his own right than be sponsored by an employer but he needed to obtain a skills assessment first before he could lodge an expression of interest, and he had not done so yet because of being notified of the Tribunal hearing.
In response to the Tribunal’s query, the applicant said that he undertook 2 qualifications while studying in Australia: originally, he did a certificate IV in Marketing, then later he completed a Diploma of Business Management. In between, he returned to live in Malaysia as he missed his friends, but after completing the Diploma, he decided that he would have better opportunities if he stayed in Australia and built a career here. The applicant told the Tribunal that if he returned to Malaysia now and worked in hospitality, his pay would be very low compared to Australia. He also noted that many employers in Malaysia preferred to hire people from their own ethnic background, whereas in Australia, this was not a factor and he was employed on his merits. The applicant acknowledged that he had worked in an office when he was younger in Malaysia but said that if he had to retrain there in a new field at the age of 34, he would again only earn low pay until he was able to establish himself.

In response to the Tribunal’s query, the applicant said that he had 4 older brothers and his parents were deceased. Currently, all of his brothers were in Malaysia, where they had their own families. They might be able to have him stay with them for a while if he had to return there but they could not provide him with financial support; in fact, he told the Tribunal that he had sometimes sent them money when needed. The applicant noted that one of his brothers previously lived in Australia but had returned to Malaysia after his marriage broke down. The applicant said that his brother had children in Australia and the applicant was close to his nephew and niece here. The applicant said that he also had cousins and his step-mother in Australia.
The Tribunal noted that if it had not been cancelled, the applicant’s subclass 482 visa would in any case expire on 24 November 2024, so reinstating it would have only brief effect. The applicant said that it would expunge the cancellation from his immigration record, and he was concerned that if that did not occur, it would be really difficult for him to make any further visa applications in future. He also thought that he could probably arrange for his most recent employer to nominate him and lodge a further subclass 482 visa before his old visa expired, if the cancellation were set aside.
The Tribunal agreed to defer its decision for a period after the hearing to enable the applicant to provide a letter from his most recent employer stating that they would re-employ the applicant and nominate him for another visa.
On 1 November 2024, the Tribunal received a further letter from the applicant’s most recent former employer, Mr Harwinder Singh, as follows:
…
We have been informed by our former employee, Keshvindar Singh, about the upcoming hearing [sic] and the necessary requirements.
We would like to express our strong desire to reemploy him as the manager of our restaurant, as finding reliable staff has been a significant challenge for us.
We are also willing to assist him with sponsorship if needed. Keshvindar was an invaluable member of our team, and we would gladly welcome him back once the hearing is resolved.
…
Does a ground for cancellation exist?
Section 116(1)(g) of the Act sets out prescribed grounds for cancellation, which in turn link to r.2.43 of the Regulations. This includes subreg 2.43(1)(oa), which provides that:
(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));
It is not disputed that the applicant was convicted of 2 criminal charges in Western Australia in April 2024, the details of which are set out in paragraph 15 above.
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
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.’
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 was originally granted a subclass 482 visa in late 2022 to work as a Café or Restaurant Manager, to fill a labour market shortage for an Australian business (at that time, the Cornish Arms pub in Melbourne). By early 2024, the applicant had transferred his visa to a new nominating employer, a Malaysian restaurant in Perth, WA, operated by Everything LA Pty Ltd, and one of the directors of the business provided written evidence pre and post hearing that the applicant was a valued employee who had contributed to the business and that the business would happily re-employ the applicant if his visa were reinstated and nominate him for a further visa.
The Tribunal also notes that the previous and potential future employment arrangement between the applicant and Everything LA Pty Ltd is in line with the aims of the subclass 482 visa and nomination program, which is to enable Australian employers to fill roles which cannot easily be filled locally.
The Tribunal further notes that the applicant has now resided in Australia for approximately 5 years, since coming to Australia to undertake a second qualification in 2019 then obtaining a subclass 485 then a subclass 482 visa. The Tribunal further notes that the applicant had spent time in Australia visiting and studying prior to 2019.
The Tribunal gives these factors some weight in favour of not cancelling the applicant’s visa.
Extent of compliance with visa conditions
The Tribunal accepts that there is no evidence that the applicant breached any condition(s) of his visas to date, and this weighs in favour of not cancelling his visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal accepts from his evidence at hearing that the applicant has lived in Australia for approximately 5 years now, and that he considers it as his home as he has family – in the form of his step mother and his nieces and nephews – here (although his 4 brothers remain in Malaysia). The Tribunal therefore accepts that cancellation of his visa (which would otherwise not have ceased until 24 November 2024) would cause him some emotional and/or psychological hardship, and possibly some financial hardship arising from having lost his work rights and ceasing employment here and relocating to Malaysia and having to find employment there.
The Tribunal considers that these factors weigh in favour of not cancelling the applicant’s visa.
Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
There is no suggestion that the circumstances of the cancellation of the applicant’s visa involved a personal relationship breakdown or family violence.
The Tribunal accepts that the circumstances that led to the applicant’s visa being cancelled were not outside his control, as he chose to drive having consumed alcohol on an empty stomach. It further accepts that he caused a motor accident in which the other driver was injured while he was over the relevant blood alcohol limit, and that he was convicted on 2 charges related to this incident, resulting in fines and the loss of his licence for 9 months. This is clearly a serious incident.
Nevertheless, the Tribunal is satisfied that this did not reflect a pattern of behaviour for the applicant, that he was given a sentence at the relevantly light end of the relevant spectrum, that he is sincerely remorseful and that he pleaded guilty to the offences at the outset as he knew that he had done the wrong thing.
While the Tribunal acknowledges that drink driving offences are regarded (and should be regarded) as serious in Australia, the Tribunal considers that the above factors are fairly evenly balanced in favour of cancelling and in favour of not cancelling the applicant’s visa in this particular case.
Past and present behaviour of the visa holder towards the department
The Tribunal is satisfied that the applicant has been cooperative when dealing with the Department and this weighs in favour of not cancelling his visa.
Whether there would be consequential cancellations under s 140
The Tribunal is satisfied that there will be no consequential cancellations pursuant to s.140 of the Act, and gives this factor no weight in favour of cancelling or not cancelling the applicant’s visa.
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 possible 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
The Tribunal accepts that the cancellation of the applicant’s visa has resulted in him holding a bridging visa (without work rights) and that he is therefore not unlawful or immediately liable for detention and removal from Australia. However, it also accepts that he is subject to s.48 of the Act, which prevents him from making a new subclass 482 visa application (and most other visa applications) in Australia. It also appears that he would be subject to a 3 year bar (from the date of cancellation, so until 24 November 2027) on returning to Australia if he were to go offshore and apply for another subclass 482 visa, unless he could demonstrate compassionate or compelling circumstances to waive the bar.
The Tribunal accepts that this limits the applicant and his employer’s options to continue the most recent employment relationship, and it gives these factors some weight in favour of not cancelling the visa.
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 (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)
There is no evidence that cancellation of the applicant’s visa would breach any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, as a result of the cancellation.
The Tribunal therefore gives no weight to this factor in favour of cancellation or of non cancellation.
If a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
This criterion is irrelevant in this case, as the applicant’s cancelled visa was not a permanent residence visa.
Any other relevant matters
The applicant did not identify any other relevant matters besides the ones discussed above, apart from his concern not to have a visa cancellation as part of his Australian immigration record.
The Tribunal notes that the period for which the applicant’s visa would have been valid is almost due to expire (on 24 November 2024). Therefore, reinstating the visa has limited utility. However, the applicant has indicated that he believed that he could make another subclass 482 visa application by that date, and he provided evidence indicating that he has the support of his most recent employer in WA to do so. The Tribunal accepts that this aligns with the purpose for which the applicant was originally granted a subclass 482 visa.
While the Tribunal does not condone or minimise the drink driving offences for which the applicant was convicted in April 2024, it is satisfied that they constituted a one off aberration on the part of the applicant, which was not intentional (although it was reckless). At hearing, the applicant gave credible evidence of his genuine and sincere remorse. The Tribunal is satisfied that there is no evidence that the applicant has committed similar offences (or any other offences) prior to or after his convictions in April 2024.
The Tribunal considers that these factors weigh slightly in favour of not cancelling his visa.
Conclusion
Considering the circumstances as a whole, the Tribunal concludes that the applicant’s visa should not be cancelled. In reaching this conclusion, the Tribunal considers that the factors in favour of not cancelling the visa just outweigh those in favour of cancelling it, and in particular, gives weight to the fact that:
- the applicant’s criminal convictions, although serious, were dealt with by way of fines and suspension of his licence, rather than imprisonment;
- the applicant was genuinely remorseful for his actions and there is no evidence that they formed part of a pattern of behaviour or indicated a more general disregard for Australian law;
- the applicant’s most recent employer is willing to re-employ him as a Café or Restaurant Manager and to nominate him for a new visa;
- the applicant is working in the hospitality industry in relation to which there remain documented shortages of experienced workers at present and is now settled in Perth; and
- there is no evidence of any other breaches of immigration (or any other) law by the
applicant.
Therefore, despite the criminal convictions, the Tribunal considers that the factors in favour of not cancelling his visa outweigh those in favour of cancelling it and it 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 482 - Temporary Skill Shortage visa.
Date(s) of hearing: 30 October 2024