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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: INDAR SINGH (MIGRATION) [2024] ARTA 192
Case: [2024] ARTA 192
Decision Date: 12 November 2024

CaseChat Overview and Summary

Indar Singh, an applicant holding a Temporary Skill Shortage (Class GK) visa, appealed the decision to cancel his Subclass 482 visa following a conviction for driving under the influence of alcohol. The case was heard by the Migration Review Tribunal. The primary legal issue before the tribunal was whether the visa should be cancelled under section 116(1)(g) of the Migration Act 1958, which allows for visa cancellation if the Minister is satisfied that a prescribed ground applies to the applicant. The tribunal needed to consider whether the prescribed ground for cancellation existed and, if so, whether it should exercise its discretion to cancel the visa.

The tribunal examined the prescribed ground in regulation 2.43(1)(oa) of the Migration Regulations 1994, which allows for cancellation if the holder of a temporary visa has been convicted of an offence. In this case, the applicant had been convicted of driving under the influence. However, the tribunal was also required to consider whether the visa should be cancelled, taking into account relevant circumstances such as the applicant's compliance with visa conditions, the purpose of their travel and stay in Australia, and the degree of hardship that might result from cancellation. The tribunal noted that the applicant had no prior criminal history, had been living in Australia for over five years, had a stable employment history, and had built a life in Australia, including a relationship with a partner planning to marry. Additionally, the applicant had a new business nomination and offers of skilled employment in Australia.

The tribunal found that while the prescribed ground for cancellation existed, the factors in favour of not cancelling the visa outweighed those in favour of cancellation. The applicant had expressed genuine remorse, had complied with visa conditions, and had made significant contributions to the Australian workforce and community. The tribunal concluded that cancelling the visa would cause undue hardship to the applicant and set aside the decision to cancel the visa. The tribunal substituted a decision not to cancel the visa, allowing the applicant to continue residing and working in Australia.

The tribunal's decision highlights the balance required in exercising discretionary powers under the Migration Act. While criminal convictions are a serious matter, they do not automatically lead to visa cancellation, especially when other factors such as the applicant's integration into Australian society and potential hardship are considered. The tribunal's decision underscores the importance of a holistic assessment in migration cases, taking into account both the legal grounds for cancellation and the broader context of the applicant's circumstances.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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: 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.…

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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 acompelling 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.