Mc Daid (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Temporary Skill Shortage (Class GK) visa (Subclass 482) held by the applicant, a 23-year-old Irish citizen. The applicant had been in Australia since 2018 on various visas, most recently sponsored by Catalpa Resources Pty Ltd as a carpenter. The cancellation was initiated due to the applicant's convictions for offences against state laws, primarily alcohol and traffic-related. The applicant contended that his partner would suffer significant emotional distress if his visa were cancelled, and provided evidence of his strong ties to Australia through his relationship, employment, and community connections.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) was established, and if so, whether to exercise its discretion not to cancel the visa. Section 116(1)(g) permits the Minister to cancel a visa if satisfied that a prescribed ground applies, with regulation 2.43(oa) of the Migration Regulations 1994 (Cth) prescribing that a conviction for an offence against a law of the Commonwealth, a State, or Territory is a ground for cancellation for holders of certain temporary visas, including the Subclass 482.

The Tribunal found that the ground for cancellation under section 116(1)(g) was indeed established, as the applicant had been convicted of offences against state law. However, this ground did not mandate cancellation under section 116(3). Consequently, the Tribunal proceeded to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances. The Tribunal weighed factors including the applicant's purpose for travel and stay in Australia, his compliance with visa conditions, and the degree of hardship that cancellation would cause. It noted the applicant's established work history and desire to remain in Australia, his lack of prior visa non-compliance, and the significant emotional and financial hardship his partner and her family would experience if he were forced to leave.

Ultimately, the Tribunal concluded that the visa should not be cancelled. It set aside the delegate's decision and substituted a decision not to cancel the applicant's Subclass 482 visa.