Mc Daid (Migration)

[2024] AATA 2213

Mc Daid (Migration) [2024] AATA 2213 (3 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dean Thomas Mc Daid

REPRESENTATIVE:  Ms Marial Lewis

CASE NUMBER:  2319066

HOME AFFAIRS REFERENCE(S):          BCC2023/1927559

MEMBER:P. Maishman

DATE:3 April 2024

PLACE OF DECISION:  Perth

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 03 April 2024 at 3:32pm

CATCHWORDS
MIGRATION – cancellation –Temporary Skill Shortage (Class GK) visa – Subclass 482– applicant was convicted of offences against laws of the State – offences are mostly alcohol and traffic related – partner would suffer emotional distress if the applicant’s visa is cancelled – decision under review set aside   

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, r 2.43, Schedule 2

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 November 2023 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).

2. The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant was convicted of offences against laws of the State. 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 19 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Brooke Lafu.

4. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

6. The applicant is a 23 year old citizen of Ireland. The applicant gave the Tribunal a copy of the delegates decision record with his application for review. The delegates decision record outlines the applicants visa history. In summary the applicant arrived in Australia on 28 August 2018 as the holder of Working Holiday (SC 417) visa and has remained in Australia as the holder of subsequent valid visas. Most recently he was sponsored by his employer, Catalpa Resources Pty Ltd, and was granted a Temporary Activity (SC 408) visa on 27 April 2021 and a Temporary Skill Shortage (SC 482) visa on 1 October 2021 valid to 1 October 2025.       

7. On 12 March 2024, the applicant gave the Tribunal documents in support of his application including:

   a.an undated written submission;

   b.a birth certificate and a letter dated 4 February 2015 from the Adoption Authority of Ireland;

   c.three letters from Prof Michael Fitzgerald, Psychoanalyst dated 5 February 2009;

   d.letter from Dr Anne Marie Robertson, Psychiatrist, dated 30 November 2009;

   e.email from Ray Pascoe dated 11 March 2024;

   f.construction white card 31 August 2018;

   g.Statutory declaration from Brooke Lafu dated 7 March;

   h.Statutory declaration from Paul Bresslin dated 7 March;

   i.Statutory declaration from Conall O’Donnell dated 7 March; and

   j.submissions prepared by the applicant representative dated 12 March 2024. 

   Does the ground for cancellation exist?

8. 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.

9. 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(oa) is relevant.

   Reg 2.43 Grounds for cancellation of visa (Act, s116)

   (1)   For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:  

   (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))

10. The Department’s decision record outlines information it received as follows:

    a.The visa holder was convicted of the following offences at the Joondalup Magistrates Court, Western Australia on 17 March 2023:

Offence	Result
·     Careless Driving	·     Fine: $300; MDL Disqualified S16/18: 3 months - Concurrent
·     No authority to drive (fines suspended)	·     Fine $300
·     Exceed 0.08g alcohol per 100ml of blood	·     Mdl Disqualified: 8 months – Concurrent; Fine: $1600

b.On 10 January 2023, the visa holder was convicted of the following offences at the Perth Magistrates Court, Western Australia:

Offence	Result
·     Disorderly behaviour in public	·     Fine $600
·     Entered premises contrary to a barring notice	·     Fine $600
·     Fail to comply with request to give police personal details	·     Community Based Order: 8 months concurrent from 10 January 2023

c.On 29 October 2020, the visa holder was convicted of the following offences at the Perth Magistrates Court, Western Australia:

Offence	Result
·     No authority to drive (disqualified)	·     Fine $1500; Mdl Disqualified: 9 months – cumulative
·     Driver exceeds zero blood alcohol content	·     Fine $1500

d.On 4 October 2022, the visa holder was convicted of the following offences at the Perth Magistrates Court, Western Australia:

Offence	Result
·     Fail to comply with request to give police personal details	·     Fine $500
·     Obstructing public officers	·     Fine $500

e.On 12 June 2020, the visa holder was convicted of the following offence at the Karratha Magistrates Court, Western Australia:

Offence

Result

·     No authority to drive – suspended

·     Disqualified: 9 months – cumulative

·     Fine $400

f.On 28 June 2019, the visa holder was convicted of the following offence at the Karratha Magistrates Court, Western Australia:

Offence

Result

·     Exceed 0.08g alcohol per 100ml of blood

·     Mdl Disqualified: 9 months – cumulative

·     Fine $750

1. The applicant does not contest he was convicted of multiple offences as outlined in the delegates decision.

2. The Tribunal finds that the applicant was a holder of a Subclass 482 visa, which is a temporary visa other than a Bridging visa and a Special Category visa. The Tribunal finds that the applicant has been convicted of offences against the laws of a state. The Tribunal finds that there are grounds for cancelling the visa under s 116(1)(g) and reg 2.43(1)(oa). The applicant concedes in his evidence to the Tribunal that there are grounds for cancelling his visa.

3. 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

4. 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

5. The applicant submits he came to Australia on a Working Holiday and was sponsored by Catalpa Resources Pty Ltd to work as a carpenter. The applicant submits his skills are highly desirable in Australia.  

6. The applicant arrived in Australia on 28 August 2018 as the holder of Working Holiday (SC 417) visa and has remained in Australia as the holder of subsequent valid visas. Most recently he was sponsored by his employer, Catalpa Resources Pty Ltd, and was granted a Temporary Activity (SC 408) visa on 27 April 2021 and a Temporary Skill Shortage (SC 482) visa on 1 October 2021 valid to 1 October 2025. After the hearing, the applicant gave the Tribunal a copy of an email dated 23 February 2024 from Mr Barry O’Neill, Director of Catalpa Group, indicating the employer would again sponsor the applicant for a visa.

7. The Tribunal finds the applicant has travelled to, and stayed in, Australia for the purpose of undertaking temporary work. The Tribunal finds the purpose of the applicant’s travel to Australia accords with the applicant’s ongoing activities in Australia.

8. The applicant gave oral evidence that he would be unlikely to be able to find suitable employment easily in Ireland. He has established a strong working history and reputation in Australia. 

9. The Tribunal gives the applicant’s purpose for travel and stay in Australia some weight against exercising the discretion to cancel the applicant’s visa.          

   The extent of compliance with visa conditions

10. The applicant submits there is no history of non-compliance with the conditions of his past visas. There was no evidence before the Tribunal to indicate that the applicant has not been compliant with the conditions of his previous visas.

11. The Tribunal gives this some weight against exercising the discretion to cancel the applicant’s visa.

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

12. The applicant submits he has been in Australia for more than 5 years and has formed strong ties with the community through his partner, Ms Lafu; his work and his friendships. He has been in a relationship and lived with Ms Lafu for more than three years. He is close to Ms Lafu’s younger siblings. Ms Lafu told the Tribunal the applicant was a strong emotional support and mentor to her younger brother who exhibits some anger management issues. Ms Lafu described how the applicant relates well with her brother and has a calming effect on him. Ms Lafu’s siblings and family are all close to the applicant and would be at a loss if he cannot stay in Australia. The applicant assists Ms Lafu to meet her debt repayments and they share their living expenses of around $700 per week. Ms Lafu could not afford the rent amount and other living expenses without his assistance. Neither Ms Lafu, nor the applicant claimed to suffer psychological issues, although both described the emotional distress they would suffer if the applicant’s visa were cancelled. Ms Lafu is young and does not want to leave her mother and siblings with whom she has very strong bonds.         

13. The Tribunal accepts the applicant and his partner, Ms Lafu, would suffer emotional distress if the applicant’s visa is cancelled. The Tribunal accepts the parties would also likely suffer some financial hardship if they could not take advantage of the pooling of their financial resources to cover their day-to-day living costs.

14. The Tribunal attributes a little weight to this circumstance against exercising the discretion to cancel the visa.       

    Circumstances in which ground of cancellation arose.

15. The applicant does not claim the grounds for cancellation arose because of circumstances beyond his control. The applicant provided submissions detailing his upbringing and identifies he came to Australia as an 18 year old. He entered the workforce when he arrived in Australia and most of his social relationships were established with older people in gatherings and social events mostly consisting of heavy drinking. His behaviours leading to his convictions are all alcohol fuelled. The applicant claims he has learnt from his mistakes and has not been drinking for about 8 months.

16. The Tribunal notes the applicants convictions are for behaviours repeated between 2019 and March 2023. The offences are mostly alcohol and traffic related, but extend to disorderly behaviour, refusing to give police personal details and obstructing public officers.

17. The applicant acknowledges the applicant was a young man when he arrived in Australia without a friendship or family support group. The Tribunal acknowledges functions where a young person is likely to find a friendship group will often involve the consumption of alcohol. The Tribunal acknowledges the applicant’s claim of current sobriety and intention not to offend any further, however the applicant’s record demonstrates he has not previously adhered to avoiding offences against the State laws.

18. The Tribunal notes the applicant was issued a Formal Advice Letter by the Department on 26 April 2021. The applicant claims not to have received this notice because the migration agent to whom it was sent was dismissed by the migration agency. The Tribunal accepts the applicant may not have been aware of the advice, but observes that it should not come as a surprise that breaches of the host countries laws would result in difficulties for a visitor to remain in that host country.             

19. The Tribunal attributes the circumstances in which the grounds for cancellation arose some weight towards exercising the discretion to cancel the visa. 

    Past and present behaviour of the visa holder towards the Department

20. The Tribunal accepts that, aside from the offences recorded, there is no adverse information in relation to the applicant’s past and present behaviour towards the Department. The Tribunal gives this factor neutral weight.

    Whether there would be consequential cancellations under s 140

21. There is no evidence before the Tribunal to indicate that there are any persons who would be affected by the consequential cancellations under s.140. The Tribunal gives this factor neutral weight.

    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 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

22. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention although he would have limited opportunities to make visa applications onshore due to the limitations imposed by s 48. The applicant may also be subject to an exclusion period if he were to make an application offshore. The Tribunal has considered these consequences, but it places little weight on this factor against the visa being cancelled.

    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

23. There are no children who would be affected by the cancelation of the visa. The applicant does not have family in Australia. The Tribunal finds that Australia’s international obligations will not be breached as a result of the cancellation.

    If a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

24. The visa in question is a temporary visa.

    CONCLUSION

25. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    DECISION

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

    P. Maishman
    Member