Martin (Migration)

[2022] AATA 3622

Martin (Migration) [2022] AATA 3622 (4 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Brendan Martin

REPRESENTATIVE:  Mr Andrew Maurice Robertson (MARN: 1573795)

CASE NUMBER:  2112206

HOME AFFAIRS REFERENCE(S):          BCC2021/1605971

MEMBER:Deputy President Justin Owen

DATE:4 October 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 04 October 2022 at 11:34am

CATCHWORDS

MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – applicant convicted of criminal offences – withdrawal of the applicant’s substantive visa application – compassionate or compelling circumstances – impact of skill shortage on the applicant’s employer – separation from extended family – working as an unlawful resident – visa had already ceased – decision under review affirmed                

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 189, 198, 359, 501
Migration Regulations 1994, r 2.43

CASES

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 8 September 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(g) of the Act on the basis that the applicant was convicted of two offences in the State of New South Wales. 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 14 July 2022 and 18 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s employer Mr Declan MacLeod.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing of 14 July 2022.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   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.

   Background to this review

7. The applicant is a 33-year-old Irish national. 

8. As outlined in the delegate’s decision record the applicant provided to the Tribunal, the applicant first arrived in Australia as the holder of a Working Holiday visa on 14 August 2018.  He was subsequently granted a further two Working Holiday visas whilst onshore. 

9. The applicant stated he travelled to Australia with his then partner.  The applicant stated that they had travelled and worked in Western Australia and Far North Queensland before moving to Bondi. 

10. On 7 February 2021, the applicant was charged by the NSW Police with one charge of common assault (DV) – T2 and a further charge of assault occasioning actual bodily harm.  The applicant did not deny the offences, claiming there were extenuating circumstances that led to the offences, that it was an isolated incident and contrary to his usual demeanour.  The applicant was granted Police bail.

11. On 11 February 2021, the applicant pleaded guilty to both charges at Waverley Local Court.  The applicant was convicted, being sentenced with a Conditional Release Order – Conviction: 12 months commencing 11 February 2021 and concluding 10 February 2022.  The applicant was also fined $550 and received a Community Correction Order for 12 months commencing 11 February 2021 and concluding 10 February 2022.  The applicant was also required to abstain from alcohol for 6 months commencing 11 February 2021 and concluding 10 August 2021.  He was also required to report to City Community Corrections within 7 days, in addition to attending counselling in relation to both alcohol and domestic violence/anger management. 

12. On 29 July 2021, the applicant applied for a Temporary Skilled Shortage visa to work in the nominated occupation as a Drainer for his sponsored employer Anilan Contracting Pty Ltd.  A Bridging visa associated with this application was granted on 30 July 2021.  The delegate noted that the applicant had been convicted of the two aforementioned criminal charges and notified the applicant of its decision to consider cancellation (NOICC) on 17 August 2021.  The applicant responded to the NOICC.  After taking into account the applicant’s submissions, the delegate cancelled the applicant’s Bridging visa on 8 September 2021.  

13. On 12 September 2021, the applicant lodged an application for review of the delegate’s decision to cancel his Bridging visa. 

14. At the Tribunal’s hearing of 14 July 2022, the Tribunal discussed with the applicant the status of his application for a Temporary Skilled Shortage visa.  Post-hearing, the applicant provided the Tribunal copies of the Department’s correspondence which confirmed that his employer, Anilan Contracting Pty Ltd, had been approved as a sponsor on 17 August 2021. 

15. On 3 August 2022, the Tribunal wrote to the applicant under s 359A to invite him to comment on or respond to information that it considered would, subject to his comments or response, be the reason, or part of the reason for affirming the decision under review.  The particulars of the information were information from the Department of Home Affairs’ ICSE records that stated the applicant’s application for a Temporary Skill Shortage (subclass 482) visa was withdrawn on 15 October 2021.

16. The Tribunal noted in its correspondence that the information was relevant because his Bridging A (subclass 010) visa was granted on the basis of his application for a Temporary Skill Shortage (subclass 482) visa.  The Tribunal noted the information was relevant because the withdrawal of his Temporary Skill Shortage (subclass 482) visa application resulted in the cessation of his Bridging A (subclass 010) visa 35 days after the date of withdrawal of 15 October 2021.  The Tribunal explained that the information was relevant to its considerations when considering the discretion to cancel his Bridging A (subclass 010) visa.

17. The Tribunal explained the consequence of this information being relied upon is the fact the Bridging A (subclass 010) visa would no longer have any effect, and would be a relevant consideration to the Tribunal when considering the discretion to cancel.  The Tribunal noted the consequence of this information being relied upon is that it is relevant to considerations such as any hardship caused to the applicant by cancellation of his Bridging A (subclass 010) visa, given that the same hardship may exist even if the cancellation was to be set aside by the Tribunal.

18. The applicant responded in writing through his representative on 10 August 2022.  In this correspondence, the applicant’s representative Mr Robertson discussed the strategy that the applicant and his sponsor undertook after receiving notification that the employer’s nomination had been refused, which included withdrawing the applicant’s visa application on the basis he would be the subject of a s 48 bar restricting him from applying for another visa whilst on shore in Australia. The correspondence goes on to outline the actions undertaken to respond to the labour market testing and s 140GNA of the Act that had not been satisfied in the employer nomination. 

19. The strategy included the applicant applying for a Bridging visa C in the 35-day period between the withdrawal of his Temporary Skilled Shortage visa and the cessation of his Bridging visa A (granted in conjunction with the substantive visa application). 

20. After advising the applicant of the strategy, his representative stated the applicant and he then became aware that the applicant’s Bridging visa A had been cancelled due to his criminal conviction; he was not holding a Bridging visa E and subject to s 48 of the Act which restricted him from applying for another substantive visa, including the Temporary Skilled Shortage visa, other than a small number of specific visas. 

21. The Tribunal held a further hearing attended by the applicant on 18 August 2022 where the Tribunal again discussed the impact of the applicant’s withdrawal of his temporary Skilled Shortage visa application, noting that the consequence of the withdrawal was that the Bridging visa A would have ceased 35 days after the withdrawal of 15 October 2021.  The Tribunal again noted a consequence of the Bridging visa no longer having any effect would be a relevant consideration to the Tribunal when considering the discretion to cancel.     

22. Section 375A Certificate

23. At the conclusion of the 14 July 2022 hearing, the Tribunal notified the applicant that a certificate dated 17 September 2021 had been issued by the delegate under s 375A of the Act.  A copy of the certificate was provided to the applicant.  The Tribunal notified the applicant that the certificate purportedly restricted the disclosure of correspondence between the NSW Police Force, the Department of Home Affairs and Australian Border Force concerning the applicant’s convictions on the basis it would be contrary to the public interest because where information was provided ‘in confidence’, the provider of the information had not consented to the disclosure of the information to the applicant. 

24. At the hearing, the Tribunal noted that it had considered the certificate to be invalid.  The Tribunal noted the delegate on 26 April 2022 had subsequently revoked the s 375A certificate on the basis that it dd not identify documents or information that should not be disclosed, or reasons for non-disclosure on ‘public interest’ grounds. The Tribunal noted the information purportedly covered by the certificate was essentially the Police Fact Sheet pertaining to the applicant and his Court Attendance Notice, documents the Tribunal was happy to provide to the applicant.  The Tribunal notes the relevant information contained in the documents appears in the delegate’s decision record the applicant provided the Tribunal, as well as in the applicant’s oral testimony to the Tribunal.        

    Does the ground for cancellation exist?

25. 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.

26. The applicant conceded he had been convicted of the offences and agreed that there were grounds for the cancellation of his visa. 

27. On 7 February 2021, the applicant was charged by the NSW Police with one charge of common assault (DV) – T2 and a further charge of assault occasioning actual bodily harm.  The applicant did not deny the offences, claiming there were extenuating circumstances that led to the offences, that it was an isolated incident and contrary to his usual demeanour.  The applicant was granted Police bail.

28. On 11 February 2021, the applicant pleaded guilty to both charges at Waverley Local Court.  The applicant was convicted, being sentenced with a Conditional Release Order – Conviction: 12 months commencing 11 February 2021 and concluding 10 February 2022.  The applicant was also fined $550 and received a Community Correction Order for 12 months commencing 11 February 2021 and concluding 10 February 2022.  The applicant was also required to abstain from alcohol for 6 months commencing 11 February 2021 and concluding 10 August 2021.  He was also required to report to City Community Corrections within 7 days, in addition to attending counselling.

29. The Tribunal is satisfied that the applicant was convicted of the offences identified above under the law of the State of New South Wales. 

30. The Tribunal finds that the applicant held a Bridging visa A and has been convicted of an offence. The Tribunal is satisfied that the ground set out in reg 2.43(1)(oa) is made out.

31. 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

32. 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

33. The evidence before the Tribunal indicates that the applicant arrived in Australia on 14 August 2018 on a Working Holiday visa.  Two subsequent Working Holiday visas were granted to the applicant whilst he was onshore.  The applicant travelled whilst in Australia, including spending time with his sister who is a resident of Western Australia. 

34. The applicant commenced working for Anilan Contracting as a drainer.  He has been working with the business for two years and is clearly a valued employee in a profession where there is a significant shortage of qualified labour.  On 29 July 2021 the applicant applied for a Temporary Skilled Shortage visa to work as a drainer for Anilan Contracting.  The applicant was sponsored by his employer. 

35. The applicant expressed a desire to remain in Australia to establish his own business.  He stated that he also wished to be with his family in Australia. 

36. The Tribunal considers the purpose of the applicant’s travel to and stay in Australia is to further his career as a drainer in Australia and to continue to work and spend time with his family.  He has also expressed an interest in developing his own business.  The Tribunal notes the chronic shortages of qualified drainers in Australia.

37. The Tribunal notes the evidence before it that the applicant withdrew his application for a Temporary Skilled Shortage visa after Anilan Contracting’s application to sponsor him was refused by the delegate.  The Tribunal accepts that this withdrawal was not due to any diminution of the applicant’s desire and motivation to work as a drainer in Australia, but rather was done for the purposes of not having a visa refusal on his migration record and the subsequent impact such a refusal may have on future applications.         

38. On the evidence before it concerning the purpose of the visa holder’s travel and stay in Australia and whether the visa holder has a compelling need to travel to or remain in Australia, the Tribunal weighs this factor slightly against cancelling the visa. 

    The extent of compliance with visa conditions

39. The evidence indicates that the applicant’s Bridging visa was cancelled by the delegate due to the prescribed grounds of the applicant’s criminal convictions and the delegate being satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa.  The Tribunal notes that there are no conditions attached to the applicant’s Bridging visa.  There is no evidence or suggestion that the applicant was non-compliant with conditions attached to previous temporary visas held in Australia. 

40. The Tribunal weighs this factor neither in favour nor against cancelling the visa. 

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

41. The Tribunal has considered the degree of hardship that may be caused to the applicant and his family members should his Bridging visa be cancelled.

42. The applicant has claimed that he will suffer from hardship and will suffer future hardship if the visa cancellation is not set aside. 

43. The applicant stated at the Tribunal’s hearing that he will experience “heartbreak” if his visa is cancelled, and he departs Australia.  He stated that he his close to his sister, Mrs Ciara Marie Breen who resides in Western Australia as well as his young niece.  He stated he would not be able to see them “for a few years” if he leaves Australia.

44. The Tribunal has considered this claim of emotional hardship.  The Tribunal accepts the applicant will experience some emotional hardship from being separated from his sister and niece and accepts he enjoys a close family bond with them.  The Tribunal however notes that the applicant currently lives on the other side of the Australian continent, meaning his face-to-face interactions with them are already limited.  The Tribunal notes the applicant and his family can remain in close, daily contact via telephonic and other communication modes.  The Tribunal notes the applicant’s sister and family can choose, subject of course to finances, to visit the applicant in Ireland or a third country should his visa be cancelled, and he depart Australia.  The Tribunal accepts there will be a degree of emotional hardship for the applicant should his visa be cancelled, but considers any hardship can be mitigated.

45. Similarly, in relation to his family in Australia, the Tribunal accepts there will be a degree of emotional hardship should the applicant’s visa be cancelled.  The Tribunal has considered the correspondence submitted from the applicant’s sister, Mrs Ciara Marie Breen and brother-in-law Mr Niall Oliver Breen.  The Tribunal appreciates the applicant and his sister especially have a close bond. The Tribunal accepts the applicant is close to his niece.  The Tribunal nevertheless considers any emotional hardship can be mitigated. The Tribunal notes the parties already reside on opposite coastlines of Australia, meaning they currently would appear to see each other in person only occasionally.  The Tribunal notes that the applicant and his family can remain in constant, daily contact via modern communication or meet in a third country if they so desire.  The Tribunal accepts there is a degree of emotional hardship for the applicant’s family but considers it to be limited, and any hardship can be mitigated.  

46. The applicant has claimed financial hardship, stating he has put a significant amount of work in with his current employer Anilan Contracting.  The applicant’s testimony – and his value to the business – was strongly supported and endorsed by his employer, Mr Declan MacLeod in his own oral and written submissions.  The applicant has been employed by Mr MacLeod for over two years as a drainer and is a highly valued employee in a profession of significant labour shortages.  He resides near the business. 

47. The Tribunal has considered the applicant’s claims.  The Tribunal accepts he is a hugely valued employee and an excellent worker.  The Tribunal accepts he would like to extend his experience in Australia as a drainer and look towards his own business at some point.  The Tribunal accepts all these claims but notes that the applicant’s skills are portable.  There is no evidence that the applicant will be unable to utilise those same skills to obtain gainful employment either in the Republic of Ireland or a third country.  The Tribunal furthermore notes the applicant has enjoyed gainful employment since arriving in Australia in 2018 and is clearly an excellent worker.  The Tribunal is not satisfied the applicant is unable to obtain similar employment in the Republic of Ireland or a third country.  There is no one in Australia furthermore relying on the applicant financially.  The Tribunal has considered the issues of financial hardship and hardship in relation to employment. The Tribunal accepts the applicant, and his employer, would prefer him to remain in Australia working for Anilan Contracting, but ultimately the Tribunal considers the hardship to the applicant to be limited. 

1. At the hearing, the applicant’s employer and proprietor of Anilan Contracting, Mr MacLeod spoke about the applicant’s value to his business and how challenging finding a replacement would be.  The Tribunal accepts Mr MacLeod’s claims that the applicant is an excellent employee, and he would like him to remain in Sydney as a valued member of the team.  The Tribunal accepts that Mr MacLeod may have to make some efforts in replacing the applicant at his business, but the Tribunal considers this is not unachievable or overly onerous, even considering the current tight employment market.  The Tribunal furthermore noted that the applicant stated at hearing that he in fact had a goal to establish his own business, suggesting he may have departed the business at some point.  The Tribunal accepts there is some short-term hardship to the applicant’s employer Anilan Contracting by the cancellation of the applicant’s visa, but ultimately the Tribunal considers the hardship to be limited.       

2. Importantly, the issue of hardship also needs to be considered in the context of the applicant’s current visa status. 

3. As the Tribunal put to the applicant under s 359A, and discussed at its second hearing, the applicant was granted the Bridging A (subclass 010) visa – whose cancellation is the subject of this review – on the basis of his application for a Temporary Skill Shortage (subclass 482) visa.  The applicant however withdrew his application for a Temporary Skill Shortage (subclass 482) visa on 15 October 2021.  Withdrawal of the application subsequently resulted in the cessation of his Bridging A (subclass 010) visa 35 days after the date of withdrawal of 15 October 2021 on 19 November 2021.   

4. The Tribunal put to the applicant the fact that the Bridging A (subclass 010) visa, should the Tribunal find it should not be cancelled, would no longer have any effect anyway, given the withdrawal of his substantive visa application and the cessation of his Bridging A (subclass 010) visa 35 days later, was a relevant consideration when considering the discretion to cancel, and in particular, the hardship that may be caused to the applicant. 

5. The applicant has stated that he wishes to lodge a new application for a Temporary Skill Shortage (subclass 482) visa.  The applicant has submitted that reinstatement by the Tribunal of his Bridging A (subclass 010) visa will provide him 35 days in which to lodge a new application for this visa.   

6. The Tribunal has considered the applicant’s submission but cannot see on what basis this argument is made.  The applicant’s Bridging A (subclass 010) visa was granted on the basis of his original application for a Temporary Skill Shortage (subclass 482) visa in July 2021.  He withdrew that application on 15 October 2021.  The applicant’s Bridging A (subclass 010) visa ceased by operation of Schedule 2, 35 days after this date.  In other words, even if the Tribunal essentially overturned the delegate’s cancellation of the applicant’s Bridging A (subclass 010) visa, it still would have ceased 35 days after he withdrew his Temporary Skill Shortage (subclass 482) visa application on 15 October 2021.  

7. The Tribunal furthermore notes Departmental policy for s 116 cancellations, like that of the applicant, states that if a s 116 cancellation decision is set aside by a Tribunal, “the s 116 cancellation is operative until the date of the Tribunal’s decision and is set aside only after this date”.

8. On this basis, the Tribunal finds the hardship caused to the applicant by the cancellation of his Bridging A (subclass 010) visa is extremely limited.  The applicant’s Bridging A (subclass 010) visa expired anyway 35 days, by the operation of Schedule 2, after the withdrawal of his substantive Temporary Skill Shortage (subclass 482) visa application on 15 October 2021.

9. The Tribunal accepts on the evidence before it that the applicant would prefer to remain in Australia.  The Tribunal accepts there is a limited degree of emotional hardship for the applicant and his family.  The most significant issue however before the Tribunal is the fact that the ultimate hardship the applicant will face by the specific cancellation of his Bridging A (subclass 010) visa is remote.  The burden and obstacles the applicant faces in lodging a successful Temporary Skill Shortage (subclass 482) visa application exist even if the Tribunal were to find that his Bridging A (subclass 010) visa should not be cancelled.  The applicant’s Bridging A (subclass 010) visa, even if the Tribunal were to find it should not be cancelled, ceased anyway 35 days after he withdrew his Temporary Skill Shortage (subclass 482) visa application on 15 October 2021.  In such circumstances, the Tribunal does not accept that the applicant faces hardship from the cancellation of his Bridging A (subclass 010) visa.  That hardship exists despite the cancellation: it exists as a result of him withdrawing his temporary Skill Shortage (subclass 482) visa application on 15 October 2021 and his Bridging A (subclass 010) visa subsequently expiring 35 days later.  

10. In relation to the degree of hardship that may be caused to the applicant, the Tribunal considers the hardship he faces arises ultimately whether the Tribunal either affirms or sets aside the cancellation.  For this reason, the Tribunal weighs this factor neither in favour nor against cancelling the visa.   

    The circumstances in which the ground for cancellation arose

11. The cancellation arose from the charging and conviction of the applicant with multiple criminal offences in the State of New South Wales.  The applicant was convicted of one charge of common assault (DV) – T2 and a further conviction of assault occasioning actual bodily harm. 

12. On 11 February 2021, the applicant pleaded guilty to both charges at Waverley Local Court.  The applicant was convicted, being sentenced with a Conditional Release Order – Conviction: 12 months commencing 11 February 2021 and concluding 10 February 2022.  The applicant was also fined $550 and received a Community Correction Order for 12 months commencing 11 February 2021 and concluding 10 February 2022.  The applicant was also required to abstain from alcohol for 6 months commencing 11 February 2021 and concluding 10 August 2021.  He was also required to report to City Community Corrections within 7 days, in addition to attending counselling in relation to both alcohol and domestic violence/anger management. 

13. The applicant provided, both orally and in written submissions, a background of his life in Australia leading up to the circumstances in which the ground for cancellation arose.

14. The applicant arrived in Australia as the holder of a Working Holiday visa on 14 August 2018.  He arrived with his then partner.  The applicant and his partner worked in a range of regional locations.  In March 2020 it is claimed the applicant and his de facto partner moved to Bondi so his partner could be closer to her friends.  It is claimed that by Christmas 2020 the relationship was breaking down and both parties were excessively drinking and engaged in a “fast-paced” lifestyle in Sydney.   

15. At the Tribunal’s hearing, the applicant discussed the events and circumstances that led to his charging and convictions – which grounded the cancellation of his visa.  He stated he, his de facto partner and a friend were out drinking.  He stated that his friend and his de facto partner returned to the Bondi apartment he shared with his de facto whilst he continued drinking. 

16. The applicant stated he subsequently returned to his apartment where he found his de facto partner and his friend in a compromising position.  The applicant submits that an altercation developed between himself, his de facto partner, and his male friend whilst he evicted the male friend from the apartment. This altercation led to a charge of common assault domestic violence in relation to his actions towards his de facto partner, and a more serious charge of assault occasioning actual bodily harm in relation to his actions towards his male friend he had found in an illicit liaison with his then de facto partner.    

17. The applicant states that due to his inebriated state and having witnessed his de facto partner in an untoward and tawdry situation with another man, he decided to depart his residence and went to a friend’s place and stayed there for two days.  The applicant stated when he arrived back at Bondi, his de facto partner stated that he had been reported to the NSW Police Force and they wished to question him.  The applicant stated he immediately and voluntarily attended Bondi Police Station.  The applicant stated he was interviewed, charged, and granted bail.  The applicant did not deny the offences, claiming there were extenuating circumstances that led to the offences, that it was an isolated incident and contrary to his usual demeanour.  The applicant was granted Police bail.

18. In his written submission, as well his NOICC response, the applicant submitted he did not deny his actions, was remorseful and realised his behaviour was inappropriate regardless of his level of inebriation.  The applicant pleaded guilty at Waverley Local Court.  He stated he did not have legal representation for this matter. 

19. The applicant made detailed submissions to the Tribunal in relation to his sentencing.  The applicant has submitted that his sentencing is essentially indicative that his actions were not objectively serious.  The applicant stated he was issued with a Conditional Release Order (CRO) in relation to his conviction for the offence of Common Assault (DV) T2, which is the “most lenient penalty available that a Judge or Magistrate can give for any criminal or traffic offence in NSW”.  The applicant stated in his written submission that CROs are used to deal with first-time and less serious offences, where the offender is unlikely to present a risk to the community. 

20. In relation to his conviction for the offence of Assault occasioning actual bodily harm, the applicant in his submissions stated he had been fined $550 and placed on a Community Corrections Order (CCO) for 12 months.  In his written submissions, the applicant submitted that a CCO is a penalty imposed by the Courts for more serious types of criminal or traffic offences which involve imposing a conviction, with conditions.  Conditions imposed by the Court in relation to the applicant’s CCO were the fine as well as a requirement to report to a Community Corrections Office within 7 days, plus rehabilitation for drug and alcohol counselling/screening and testing and domestic violence/anger management for twelve months between 11 February 2021 and 10 February 2022.  The applicant was also directed to abstain from alcohol for 6 months between 11 February 2021 and 10 August 2021.       

21. At the Tribunal’s hearing, the applicant stated that his actions that led to the ground for the cancellation of his visa were entirely out of character.  He stated that he has not reoffended since these convictions and had given up alcohol after this event and had not had a drink for over a year. The applicant has pointed out that no Domestic Violence Order (DVO) was put in place.  He also drew the Tribunal’s attention to correspondence of 28 April 2022 from Mr Chris Hurst of City Community Corrections of Corrective Services NSW, stating that Community Corrections had triaged the applicant’s risk as being “Low” relating to his stability in the community.  As a result, supervision of the applicant by Community Corrections was suspended on 2 March 2021. 

22. In his written submission of 29 April 2022, the applicant has submitted that his sentencing essentially stands as evidence that his offending was not serious.  The applicant points out that he does not have a ‘Substantial Criminal Record’ (as defined in s 501(6)(d) of the Act) and he does not pose a “risk” of engaging in future criminal conduct.  Utilising the language of s 501 cancellations, it is submitted by the applicant through his representative that his convictions were a “one-time occurrence” during his time in Australia, and the evidence suggests the offences committed, whilst reckless behaviour, were out of character with a “very low” chance of recidivism.  The applicant submits the conduct was “at the lower end of the spectrum” in terms of seriousness, with no custodial sentence imposed and the offending was a singular event with no suggestion of a trend of increasing seriousness.     

23. The applicant’s written submission also notes that the circumstances in which the ground for cancellation arose was the only consideration the delegate gave weight in favour of cancelling the applicant’s visa. 

24. The Tribunal has considered the applicant’s oral and written submissions.    

25. The Tribunal acknowledges that the applicant’s offending appears to have been a “one-off” event.  The Tribunal notes his expressed willingness to take responsibility for his past actions and his attempts to improve his well-being by abstaining from alcohol.  The Tribunal notes the early decision of Corrective Services NSW to abandon a reporting regime and accepts the applicant was regarded as relatively low risk by the Court and Corrective Services NSW.  The Tribunal notes the fact that on the evidence he appears to have been cooperative with the NSW Police. The Tribunal notes that there is no evidence before it of any further adverse interactions with the law. 

26. The Tribunal gives greater weight however to the fact the applicant has nevertheless been convicted of a number of significant offences involving the commitment of acts of physical violence.  The Tribunal notes the common assault – domestic violence conviction from his actions towards his then de facto partner.    The Tribunal considers domestic violence – and violence committed against women generally – to be a very grave offence.  The applicant was further convicted of assault causing grievous bodily harm.  Even taking into account the particular circumstances of the evening, a night involving the excessive consumption of alcohol, and the discovery of the unfaithfulness of a de facto partner, the Tribunal considers criminal behaviour that involves the committing of acts of violence against another person is a significant concern. 

27. The applicant has explained to the Tribunal the background to the convictions and his recollection of events.  The Tribunal has taken all his submissions into account. Having taken all the evidence into account, the Tribunal weights the circumstances in which the ground for the cancellation arose in favour of cancelling the visa. 

    Past and present behaviour of the visa holder towards the Department

28. The Tribunal has considered the past and present behaviour of the applicant towards the Department.  The decision record the applicant provided indicates the applicant responded to the NOICC and has actively engaged in the cancellation consideration process.  The applicant in his submissions asserts that his behaviour warrants more than “a little” weight against cancelling the visa.  The Tribunal accepts that the applicant has engaged in the cancellation process, but as discussed elsewhere in this decision record, notes his failure to engage with the Department and follow up his Bridging visa E application in November 2021 that resulted in him being an unlawful non-citizen in the Australian community for some nine months.   On the evidence before it, the Tribunal weighs this factor slightly against cancelling the visa. 

    Whether there would be consequential cancellations under s 140

29. The applicant confirmed at the hearing there are no dependent visa holders as part of his visa.  The Tribunal therefore finds that there will be no consequential cancellations under s 140 if the visa is cancelled.  The Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa. 

    Mandatory legal consequences of a decision to cancel the visa

30. The Tribunal notes that the applicant will become an unlawful non-citizen if his visa is cancelled, and may be liable for detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia.  The Tribunal has considered that indefinite detention is a possibility if his visa was to be cancelled.  The applicant will also be subject to a s 48 bar which will limit his options in applying for further visas in Australia.  Depending on the visa for which he may apply, the Tribunal notes that the applicant will be subject to Public Interest Criterion 4013 because of the cancellation, and may not be granted a temporary visa for three years from this date except in certain circumstances. 

31. The Tribunal has noted the applicant’s strong desire to lodge a further Temporary Skill Shortage (subclass 482) visa application.  The Tribunal notes that the applicant currently, as the holder of a Bridging visa E associated with this review, would be required to make such an application from outside of Australia: applicants in Australia must hold either a substantive visa, or a Bridging visa A, B or C: Schedule 1 requirements for a subclass 482 application.  

32. The Tribunal furthermore notes the impact of Public Interest Criteria 4014 should the applicant’s visa be cancelled.  Should the applicant depart Australia as the holder of a Bridging visa E, the applicant will be unable to apply for a further Temporary Skill Shortage (subclass 482) visa for three years unless he satisfies the Minister that there are compelling circumstances that affect the interests of Australia; or there are compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident, or an eligible New Zealand citizen.

33. The Tribunal again notes that the legal consequences that will flow on from a decision to cancel the applicant’s visa are largely already consequences that the applicant will face.  As the Tribunal has discussed multiple times in this decision record, the applicant’s Bridging A (subclass 010) visa expired anyway 35 days, by the operation of Schedule 2, after the withdrawal of his substantive Temporary Skill Shortage (subclass 482) visa application on 15 October 2021. The applicant was granted the Bridging A (subclass 010) visa – the matter on review before the Tribunal – because of his substantive visa application.  The applicant withdrew that application on 15 October 2021.  The applicant’s Bridging A (subclass 010) visa ceased by operation of Schedule 2, 35 days after he withdrew his substantive Temporary Skill Shortage (subclass 482) visa application.  It so follows that the mandatory legal consequences the applicant faces from the cancellation of his visa, as outlined in paragraphs 77 to 79, are already overwhelmingly consequences he faces even if the Tribunal were to not cancel his visa. The Tribunal in such circumstances does not accept, and no legal basis has been provided in support of the argument, that the applicant’s Bridging A (subclass 010) will be simply reinstated by the delegate and the applicant again able to lodge an onshore Temporary Skill Shortage (subclass 482) visa application.

34. The Tribunal considers that the adverse migration consequences the applicant now faces are in many ways a result of him deciding to withdraw his substantive visa application in 2021 as opposed to the Tribunal affirming the decision to cancel his visa.  

35. The Tribunal appreciates that, if the visa was not cancelled, the applicant would no longer face the s.48 bar.  Nevertheless, other mandatory consequences, as outlined, above will preclude him from lodging a further Temporary Skill Shortage (subclass 482) visa application whilst in Australia as he desires.  

36. In relation to the mandatory legal consequences that may be caused to the applicant, the Tribunal considers these consequences he faces largely arise whether the Tribunal either affirms or sets aside the cancellation.  The Tribunal weighs this factor neither in favour nor against cancelling the visa.   

    International obligations – non-refoulment

1. The applicant is an Irish national.  The Tribunal is not aware of any international obligations which would be breached as a result of the cancellation.  None have been claimed.  

2. The Tribunal weighs this factor neither in favour nor against cancelling the visa. 

   Any other relevant matters

   Impact of cancelling the applicant’s visa on his employer

3. Under the section “Any other relevant matters” in the applicant’s written submissions of 29 April 2022, the applicant drew the Tribunal’s attention to a range of legal authorities emanating from the Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 decision in relation to the weighting given to the various considerations.

4. The applicant has submitted that his existing full-time employment as a drainer by Anilan Contracting Pty Ltd – and the impact cancellation of his visa would have on an Australian business in Anilan Contracting – is a consideration that should be given “substantial weight” against cancelling the visa.  The applicant has submitted that cancellation of his visa would “impact heavily” upon his employer. 

5. The applicant has submitted that his occupation of Drainer is on the Medium to Long-Term Skills Shortage List in Australia.  The applicant’s submissions were supported by his employer who provided both oral testimony and written statements in response to the original NOICC that continuation of the business was very reliant on the applicant remaining in Australia. 

6. The applicant has submitted that he is a skilled worker, and cancellation of his visa, and his subsequent inability to be granted a Temporary Skill Shortage (subclass 482) visa will cause his employer hardship.

7. The Tribunal has noted the written correspondence of Ms Anita Iscru, Director of Anilan Contracting of 5 August 2021, who stated the applicant had been “an integral part” of the growth of the business.  The Tribunal has noted the written correspondence of Mr Declan MacLeod, Director of Anilan Contracting of 21 July 2021 who states that losing the applicant from the business would result in setbacks in company growth and possible loss of income and job security of others in the company.  Mr MacLeod in his oral testimony to the Tribunal spoke at some length about the applicant’s value to the business. 

8. The Tribunal has taken into account the applicant’s submissions on these claims and has considered the impact on the applicant’s employer’s business because of the cancellation of the applicant’s visa. 

9. The Tribunal accepts that the applicant is a skilled and valued employee.  The Tribunal accepts the claim that the role of Drainer is on the skills shortage list in Australia.  The Tribunal accepts that there may be challenges for the applicant’s employer in filling any vacancy created by the cancellation of the applicant’s visa and his potential departure from Australia. 

10. The Tribunal notes however that the applicant has only been with the business since March 2021.  The Tribunal was informed that there were some 16 employees “on the books” plus subcontractors. The Tribunal does not accept the submission that almost the entire viability of the business relies upon the applicant’s continued ability to remain as a full-time employee. 

11. The Tribunal furthermore notes the applicant was working for the business as a unlawful non-citizen between November 2021 and August 2022. He held no visa that lawfully permitted him to undertake this employment  with Anilan Contracting during this period.    

12. The Tribunal accepts that the applicant’s employer and the wider business would prefer the applicant to remain in its employment.  The Tribunal accepts that finding a suitable qualified replacement may be challenging and involve both cost and time.  The Tribunal does not however accept, on the limited evidence before it, that this a consideration that outweighs other considerations, nor is it a consideration that justifies the applicant’s visa not being cancelled.    The Tribunal does not consider this consideration as a matter that should be granted greater weight than other considerations before the Tribunal.   

13. The Tribunal has considered the impact the cancellation of the applicant’s visa will have on his employer, Anilan Contracting Pty Ltd.  The Tribunal weighs this consideration slightly against cancelling the visa.

    Risk posed by the applicant

14. The applicant submitted correspondence from City Community Corrections of Corrective Services NSW pertaining to the applicant’s 12-month CCO of 11 February 2021, and its decision to suspend the supervisory component in the first month of the Order.  It has been pointed out that Community Corrections considered the applicant’s risk as being Low based on his stability in the community.  The applicant subsequently was not required to maintain regular appointments with Community Corrections after 2 March 2021.  The Tribunal accepts the applicant was assessed as low risk, and furthermore accepts that the applicant completed the CCO on 10 February 2022 with no incidents and no reinstatement of the supervisory component. 

15. The Tribunal accepts that the applicant has not reoffended and has fulfilled the requirements of his CCO.  The Tribunal does however note that the applicant, by his own admission, did not undertake or fulfil any rehabilitation for drug and alcohol counselling/screening and testing, and Domestic Violence Anger Management.  The applicant has stated that he himself stopped drinking, essentially independently of any order by the Court.  Whilst in the circumstances the Tribunal is prepared to accept his claim, the Tribunal notes that anger management and self-control are measures that go beyond simply the consumption of alcohol. 

16. The Tribunal has considered the applicant’s submissions pertaining to risk.  Bearing in mind the legislative purpose of the cancellation of the visa is community protection, the Tribunal agrees that risk can generally be seen to be a relevant consideration.  The Tribunal considers that in a case where the applicant presents no risk to the community, that would weigh against cancelling, but would not necessarily be determinative of a decision. Likewise, if the Tribunal found an applicant presented a strong risk, that would weigh strongly in favour of cancelling.  The Tribunal is not however obliged to quantify the risk or make a definitive finding that the applicant does or does not pose a risk, as the applicant appears to have asserted.  The Tribunal acknowledges that in cases where there was a finding of no risk, cancellation, depending of course upon the individual circumstances of the case, may seem disproportionate given the consequences to an applicant and potentially their family.

100.   The Tribunal has, based on all the evidence before it in relation to the circumstances of the event, considered the risk that the applicant may be to the community based upon the events that led to his criminal convictions.  The Tribunal has also considered the various information and evidence before it as to how any potential future risk may be mitigated.  

101.   The Tribunal notes the evidence before it suggests the applicant does not pose a significant risk to the community in the future.  The Tribunal has drawn this conclusion based upon a number of pieces of evidence before it, including the decision of the sentencing Judge to not impose a custodial sentence upon the applicant but instead hand down a CCO.  His Honour’s decision to impose such a non-custodial sentence suggests the risk the applicant poses to the community is limited. 

102.   The decision of the Department to grant the applicant a further Bridging visa to allow him to remain in the community, rather than place the applicant in immigration detention, upon the cancellation of his Bridging visa A has also been of relevance to the Tribunal in its consideration of risk.  If the applicant was assessed as a risk to the community, the Tribunal would have reasonably expected, in the circumstances of this case, for the Department to place the applicant in immigration detention whilst his outstanding migration matters were assessed.  The applicant was however granted a further Bridging visa E that has allowed him to remain in the community. 

103.   The Tribunal recognises the applicant’s claimed remorse for his actions. The Tribunal notes that there is no evidence before it of any further adverse behaviour by the applicant now for well over two years.  The Tribunal recognises that the applicant appears to have focused on improving his life since his conviction.  The Tribunal has also considered the risk the applicant may be in the community.  The Tribunal does note that the Court did not see fit to incarcerate the applicant after his conviction.  The Department did not see fit to place the applicant in immigration detention after his visa cancellation, rather he was granted a further Bridging visa to allow him to remain in the community.  On the facts, the Tribunal considers the applicant’s presence in the community, as an ongoing risk to the community, is low.

104.   On the issue of risk, the Tribunal weighs this matter against cancelling the applicant’s visa. 

The applicant’s migration status

105.   For completeness, the Tribunal notes the applicant was an unlawful non-citizen at the time of his first hearing before the Tribunal on 14 July 2022.  The evidence suggests, as outlined by the applicant in his submissions, that the applicant was granted a Bridging visa E on 14 October 2021 with an expiration of 19 November 2021 following the cancellation of his Bridging A (subclass 010) visa. The applicant then applied for a further Bridging visa E on 2 November 2021 in order to remain lawfully within Australia after the expiration of his then existing Bridging visa E.  The applicant stated that no outcome was received from the Department in relation to that application.  After the Tribunal’s hearing and receiving correspondence from the Tribunal, the applicant through his representative contacted the Department, who subsequently held an interview with the applicant and granted him a new Bridging visa E on 10 August 2022. 

106.   The Tribunal appreciates the delay in the delegate making a decision in relation to the applicant’s Bridging visa E and accepts the applicant in November 2021 was making an active attempt to remain lawfully in Australia with a new application lodged prior to the expiration of his existing visa.  The Tribunal nevertheless notes it is encumbered upon the applicant to ensure his migration status is kept up to date and he remains lawful whilst in Australia. Based on the information supplied by the applicant, he was an unlawful non-citizen between 19 November 2021 and 10 August 2022.  The Tribunal considers the applicant should have undertaken genuine attempts to follow up and contact the Department should he not have received a response from the delegate in relation to his application in November 2021 for a further Bridging visa E.  The applicant was clearly aware his Bridging visa E was due to expire on 19 November 2021.  It remains encumbered upon him to follow up on the status of the application and ensure he remains lawful.  In the applicant’s written submission of 10 August 2022 through his representative, it is stated that the applicant “sought lawfully to remain in Australia at all times”.  The Tribunal would respond that relying essentially on “no response” from the Department as a substitute for evidence of the grant of a further Bridging visa E is, quite frankly, ludicrous.  It should not be up to the Tribunal to motivate the applicant into finally enquiring into the status of a Bridging visa E application from some nine months earlier.  The Tribunal appreciates that the delegate should have actioned the application much sooner.  This does not however justify the applicant’s subsequent total lack of action post November 2021 in enquiring into the status of his application, as well as ensuring his migration status remained lawful whilst in Australia.               

Conclusion 

107.   The Tribunal has weighed the considerations.  In this case, the Tribunal has considered the applicant’s convictions, and his statements of regret and remorse for his behaviour.  The Tribunal has considered his willingness to abstain from alcohol and his lack of any further adverse interactions with the law. The Tribunal has taken into account his strong and genuine work ethic, and the value he brings to his employer and broader society in filling a role which faces chronic shortages in Australia.    The Tribunal has taken into account the hardship that he, his sister and their family may face should his visa be cancelled.  The Tribunal has considered the impact upon his employer’s business should his visa be cancelled.

108.   However, the Tribunal considered these factors were outweighed by the other considerations, in particular the circumstances in which the ground for cancellation arose. The Tribunal notes that the Commonwealth Government has a low tolerance for criminal behaviour by non-citizens who are in the Australian community on a temporary basis and do not hold a substantive visa.  The Tribunal considers the events that occurred at the applicant’s apartment at Bondi which led to his convictions for assault are of concern.  Provocation and inebriation should not be held out as legitimate excuses for anti-social behaviour and acts of physical violence. 

109.   The Tribunal furthermore notes that a number of considerations have been impacted as a result of the withdrawal in October 2021 of the applicant’s substantive visa application. Considerations such as the hardship the applicant may face, and the mandatory legal consequences flowing from the cancellation of the visa, have all been impacted by the withdrawal of the applicant’s substantive Temporary Skill Shortage (subclass 482) visa application. 

110.   Withdrawal of the substantive Temporary Skill Shortage (subclass 482) visa application by the applicant has left the review of the Bridging visa he was granted for the purpose of such an application in a somewhat problematic and indeed arguably futile state.    

111.   For instance, the Tribunal considers the hardship the applicant will face is limited as his Bridging A (subclass 010) visa expired anyway 35 days, by the operation of Schedule 2, after the withdrawal of his substantive Temporary Skill Shortage (subclass 482) visa application on 15 October 2021.  The applicant was granted his Bridging A (subclass 010) visa because of his substantive visa application.  The applicant was granted his Bridging A (subclass 010) visa for an express purpose.  It was a visa that allowed him to remain in Australia lawfully whilst his substantive Temporary Skill Shortage (subclass 482) visa application was assessed by the delegate.  The applicant decided to withdraw that application and did so on 15 October 2021.  Thirty-five days after that point, his Bridging A (subclass 010) visa, given the applicant no longer had the substantive visa application before the delegate, ceased by virtue of Schedule 2.  Even if the Tribunal were to conclude the applicant’s Bridging A (subclass 010) visa is not cancelled and overturn the delegate’s decision, the visa would have ceased 35 days after the withdrawal of the Bridging A (subclass 010) visa anyway.  For this reason, the Tribunal considers the hardship the applicant faces arises ultimately whether the Tribunal either affirms or sets aside the cancellation.  For this reason, the Tribunal weighed this factor neither in favour nor against cancelling the visa.   The Tribunal appreciates the hardship to the applicant, his family, and his employer – but that specific hardship ultimately exists despite the cancellation of the applicant’s Bridging A (subclass 010) visa. 

112.   Similarly, with regard to the consideration of the mandatory legal consequences arising from cancellation of the applicant’s visa, those legal consequences will largely flow on a practical sense whether the Tribunal finds the applicant’s visa should be cancelled or not: his Bridging A (subclass 010) visa ceased in mid-November 2021 anyway.  There is no coherent submission before the Tribunal as to what basis this Bridging A (subclass 010) visa could be reinstated when it has already ceased.  The Tribunal does not accept the submission that it can simply find that the applicant’s Bridging A (subclass 010) visa not be cancelled, and that will give the applicant another 35 days to lodge a new substantive Temporary Skill Shortage (subclass 482) visa application.  Even if the Tribunal were to not cancel the Bridging A (subclass 010) visa, this same visa ceased 35 days after the applicant withdrew his Temporary Skill Shortage (subclass 482) visa application on 15 October 2021.                  

113.   The Tribunal has carefully considered the applicant’s evidence and his explanations and submissions both independently and cumulatively.

114.   Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

decision

115.   The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Justin Owen
Deputy President