Merchant (Migration)

[2019] AATA 1080

Merchant (Migration) [2019] AATA 1080 (11 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Craig Merchant

CASE NUMBER:  1804465

HOME AFFAIRS REFERENCE(S):           BCC2017/4088717

MEMBER:John Cipolla

DATE:11 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 11 March 2019 at 2:13pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – convicted of an offence against a law of a State – finding of guilt without conviction – consideration of discretion – value to sponsor’s business – circumstances in which the ground for cancellation arose – character references – decision under review set aside

LEGISLATION
Criminal Procedure Act 2009 (Vic), s 3
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), rr 1.20KB, 2.43
Sentencing Act 1991 (Vic), ss 7, 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 February 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that the applicant had been charged with a number of criminal 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 21 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   Relevant law

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.

7. A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant. It provides the following

   (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 the following:

   (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))

   Does the ground for cancellation exist?

8. The applicant provided to the Tribunal a copy of the primary decision record. The decision record states that information before the Department indicates that on 17 August 2017 at the NJC Magistrates Court in Collingwood Victoria that the applicant was convicted of 6 offences. 

9. In his response to the Notice of Intention to Consider Cancellation (NOICC) of his visa the applicant stated:

   “With regard to the assault charges as per my partner’s statutory declaration, these charges and family violence intervention orders were not filed nor pressed by my partner Simone Neto and importantly were resolved without criminal conviction. I would appeal to the distinction that as I was not convicted of this offence this was an isolated incident, treated out of context and out of character, and one which I deeply regret regardless.”

10. The representative in a submission received just before the review hearing submitted the following:

    On 17 August 2017, at the Neighbourhood Justice Centre of Collingwood, Merchant pleaded guilty to
    2 counts of Unlawful Assault and 2 counts of Obtain Property by Deception. We are instructed that the
    unlawful assault charges related to separate incidents involving Merchant and his partner Simone
    Neto. As Merchant was on Bail at the time in relation to the Bitcoin charges, he was also charged with an additional 2 counts of ‘Commit Indictable Offence Whilst on Bail’.

    The outcome of those matters, as listed on page 2 of the Decision Record are as follows:

    Offence Court Result
    Unlawful Assault 2 Without conviction fined an aggregate of AUD 1,000
    Obtain Property by Deception
    Commit Indictable Offence
    Whilst on Bail
    Without conviction fined an aggregate of AUD 800

    For the Tribunal’s ease, we note that at the time of the Decision Merchant had no conviction recorded
    against his name.

    Reason for Decision – Conviction

    At paragraph 20 of the Decision Record, the Decision Maker provides the basis for his decision as
    follows:

    20. The visa holder stipulated that that [sic] he has not been convicted of a crime, however the
    common law defines conviction as the complete orders made by a court after finding an
    accused person guilty of an offence, including both the finding of guilt and any sentence passed
    as a consequence.1 For the purpose of the relevant legislation, in the Department’s view, a
    “conviction” requires a finding of guilt together with any sentence passed as a result of that
    finding and that the “recording” of a conviction is not required.

    Giving grounds to the reason for Decision, the Delegate provided his findings at paragraph 21:

    21. I find that the visa holder pleaded guilty to criminal offences including unlawful assault,
    obtain property by deception and commit indictable offence whilst on bail and had a penalty
    imposed by the NJC Magistrates’ Court – Collingwood. I consider the finding of guilt
    constitutes the “complete orders of the court” and this is a conviction.

    For reasons to follow, we respectfully argue that the delegate misunderstood and misapplied
    Regulation 2.43(oa) for the purposes of section 116 (1) (g) and that his decision to cancel our client’s
    visa is legally invalid.

    As mentioned above, at paragraph 20 of the Decision record the Delegate relied on a common law
    definition of ‘conviction’ for the purposes of Regulation 2.43 (oa), and in support of this definition
    provided as a footnote a reference to the Encyclopaedic Australian Legal Dictionary, citing Maxwell V
    The Queen (1996) 184 CLR 501.

    The delegate misunderstood the application of this definition in its application to his statutory task for
    the purposes of section 116 (1) (g).

    Maxwell v the Queen

    The case of Maxwell concerned a man charged with the killing of his wife in the early 1990’s. Maxwell
    was charged with murder but following a psychiatric report which suggested that he was of diminished
    responsibility for his actions, the prosecution offered Maxwell a plea bargain – that it would drop the
    murder charge in exchange for manslaughter. Maxwell accepted the plea bargain and the case went
    to the trial judge for sentencing. Before a sentence could be made, the psychiatrist discovered additional material that he had not considered at the time of his earlier report. On reviewing the
    additional documents, the psychiatrist was of the opinion that Maxwell was not of diminished
    responsibility by reason of mental impairment. The prosecution tendered this supplementary report
    and the Trial Judge, in viewing that the manslaughter charge was perhaps no longer appropriate,
    deemed that it was in the interests of justice not to pass sentence and instead seek a determination
    from the Court of Appeal on the following two issues:

    1. ‘Can the prosecution withdraw the acceptance of a plea after a plea has been accepted? And

    2. Has a Trial Judge, when a plea has been accepted by the Crown in full satisfaction of an
    indictment, any power to reject the plea?’

    Maxwell argued that according to the long-established principle of autrefois, that neither the
    prosecution can withdraw acceptance of a plea nor can the Trial Judge reject it. If Maxwell was
    convicted of manslaughter, he could not then be charged with murder, so the issue became whether
    he was in fact convicted of manslaughter.

    The issue then arose as to what is a conviction (primarily for the purpose of autrefois) and when is a
    conviction crystallised as a conviction?

    The Court of Appeal deemed that it was impermissible for the Trial Judge to accept the plea bargain.

    On appeal to the High Court, the Justices held that pursuant to s394A of the Crimes Act 1900 (NSW)
    was silent on the issue of whether the Crown was permitted to withdraw acceptance of the plea
    bargain but added it can only do so with leave of the Court.

    This case had more to do with the implications of rejecting a plea, than definition of the conviction. It
    was necessary to define the scope of a conviction for the purpose of determining the implications of
    rejecting a plea bargain. It was necessary for the Justices to distil a common understanding of
    “conviction” for the purpose of its secondary effect on the main issue of “autrefois”. ‘

    It was in this context that the Justices stated:

    “What amounts to a conviction depends upon the context in which it is asked.”

    We argue that the Delegate in this case entirely lost context with not only his statutory task at hand by
    importing a definition out of context, but also in not assessing our client’s merits in the context of the
    appropriate statutory framework.

    The Relevant Law

    The starting point for considering whether or not a person has a conviction is not by referring to a
    legal dictionary but by considering the relevant law. In the State of Victoria, that law is the Sentencing
    Act 1991. Importantly, Section 8 of that Act provides as follows:
    SENTENCING ACT 1991 - SECT 8

    Conviction or non-conviction

    (1) In exercising its discretion whether or not to record a conviction, a court must have regard to
    all the circumstances of the case including—

    (a) the nature of the offence; and

    (b) the character and past history of the offender; and

    (c) the impact of the recording of a conviction on the offender's economic or social well-being
    or on his or her employment prospects.

    (2) Except as otherwise provided by this or any other Act, a finding of guilt without the recording
    of a conviction must not be taken to be a conviction for any purpose.

    (3) A finding of guilt without the recording of a conviction—

    (a) does not prevent a court from making any other order that it is authorised to make in
    consequence of the finding by this or any other Act;

    (b) has the same effect as if one had been recorded for the purpose of—

    (i) appeals against sentence; or

    S. 8(3)(b)(ii) amended by No. 65/2011 s. 6.

    (ii) proceedings for variation or contravention of sentence; or

    (iii) proceedings against the offender for a subsequent offence; or

    (iv) subsequent proceedings against the offender for the same offence.

    Some very important, and relevant points emerge from a consideration of the above section. First, it is
    quite clear that the court has a discretion whether or not to record a conviction and before doing so, is
    required to take into account a number of factors including importantly, the impact of a conviction on
    the offenders economic or social well-being or on his/her or her employment prospects.

    A person’s Visa status is connected with both social well-being and employment prospects, and is therefore a highly relevant consideration.

    The ability of the Court to impose a fine, as opposed to a non-conviction is in cognizance that the
    imposition of a conviction can have over-reaching implications on the offender. It could be argued that
    the corresponding decision to cancel on this flimsy basis, is the exact pre-caution the Court attempted
    to avoid by not imposing a sentence.

    Second, subsection (2) clearly specifies that except as otherwise provided a finding of guilt must not
    be taken to be a conviction for any purpose. We are not aware of any legislative provision specifying
    otherwise in circumstances relevant to Merchant’s situation and therefore it is our submission that the
    characterisation of his guilty pleas as ‘convictions’ is clearly erroneous and that S116(1)(g) of the Act
    has no relevance to his situation.

    Conclusion

    In summary, for the reasons outlined above the necessary criteria to trigger a cancellation under
    section 116 (1) (g) of the Migration Act did not exist at the time the decision was taken nor does it
    exist now and in our submission the Tribunal must revoke the cancellation.

    Ref:

11. Having regard to the Department’s decision record and submissions from the applicant’s representative dated 20 and 21 February 2019, the Tribunal notes that the applicant was charged with three offences in Victoria on 26 July 2017 but these charges were struck out or withdrawn on 1 June 2018. The applicant pleaded guilty to the following offences in Victoria namely, ‘Unlawful Assault’, ‘Obtaining Property by Deception’ and ‘Committing an Indictable Offence Whilst on Bail’ on 17 August 2017. The outcome of these pleadings was no conviction was recorded and the applicant received an aggregate fine of AUD$1,800.00.

12. For the cancellation ground prescribed in r.2.43(1)(oa) to be made out, a decision maker must be satisfied that the applicant has been convicted of an offence against a law of the Commonwealth, a State or Territory. The ground applies whether the visa holder held the visa at the time of the conviction and regardless of the penalty imposed (if any).

13. The Explanatory Statement (ES) for the Migration Amendment (2014 Measures No.2) Regulation 2014, which introduced r.2.43(1)(oa), states that the introduction of this cancellation ground was to provide a ‘lower threshold for the consideration of visa cancellation for [persons] whose conduct falls short of what is expected’: Attachment B, ‘Overview of the Regulation – Schedule 3’. In the same section of the ES, it is stated that the amendment was made in the context that temporary visa holders are expected to make a positive contribution to Australian society, respect community values, and obey Australia’s laws. The ES further stated that the ground will apply if a person is convicted at any time during their stay in Australia, not necessarily while the holder of the temporary visa subject to cancellation: Attachment C, Schedule 3 – ‘Character and general visa cancellation’.

14. This indicates that the intention behind the cancellation ground was to allow for broader cancellation powers in circumstances where a visa holder’s behaviour casts doubt on their regard for Australian law. However, as discussed below, this intention may not have been reflected in the use of the word ‘convicted’ when the legislative context in Victoria is considered.

15. The delegate in their decision considered the dictionary definition of ‘conviction’ and referenced the judgment of Maxwell in a footnote to find the applicant had been convicted of an offence for the purposes of r.2.43(1)(oa).

16. In Maxwell, Dawson and McHugh JJ held that ‘the question of what amounts to a conviction admits of no single, comprehensive answer. Indeed, the answer to the question rather depends upon the context in which it is asked.’ Dawson and McHugh JJ then reasoned that a plea of guilty is not itself indicative of a conviction, a conviction does not occur until there has been an acceptance of the plea amounting to a determination. This line of reasoning, applied to the current factual scenario where the applicant entered guilty pleas and this resulted in a fine being imposed, or a determination, suggests the necessary elements for a conviction have occurred. However, Maxwell related to the timing of a conviction for manslaughter for the purposes of determining whether the court could reject a guilty plea after new evidence came to light rather than the issue of where a court has made a finding of guilt without recording a conviction. Considering the current facts in context, as required by Maxwell, regard should be had to the definition of ‘conviction’ in Victorian legislation. As s.8(2) of the Sentencing Act expressly states that a finding of guilt without the recording of a conviction should not be taken to be a conviction for any purpose, the elements of a conviction as found by Dawson and McHugh JJ in Maxwell do not appear to be sufficient in this context.

17. In the submission dated 20 February 2019, the applicant’s representative makes reference to the discussion of the principle of autrefois convict in Maxwell, where a person should not be punished more than once for the same matter. That principle is not relevant to the current facts as the applicant in this case had not previously been charged in relation to the offences he pleaded guilty to on 17 August 2017.

18. When sentencing a person under s.7 of the Sentencing Act, a court has a discretion to do so with or without recording a conviction. Section 8 provides the court with guidance as to the circumstances it should consider in exercising its discretion. Section 8(2) of the Sentencing Act states that:

    (2)        Except as otherwise provided by this or any other Act, a finding of guilt without the recording of a conviction must not be taken to be a conviction for any purpose.

19. There is no indication in the Migration Act 1958 (Cth) (the Act) or the Migration Regulations 1994 (Cth) (the Regulations) that a finding of guilt without the recording of a conviction should be taken to be a conviction for the purpose of the Act and Regulations. For example, r.1.20KB draws a distinction between people who have been charged but not convicted (‘the charge has been withdrawn, dismissed or otherwise disposed of without the recording of a conviction’ in r.1.20KB(2)) and those who have been convicted (including where the conviction has been quashed or otherwise set aside: r.1.20KB(3)).

20. Section 8(3) of the Sentencing Act specifies that, for appeals and related or subsequent proceedings, a finding of guilt without the recording of a conviction has the same effect as if one had been recorded. Section 3 of the Criminal Procedure (CP) Act defines ‘conviction’, in Chapter 6 of the CP Act (which relates to appeals), as including a finding of guilt by a court, whether or not a conviction is recorded. When the CP Act was introduced, this definition extended to Chapter 8, containing general provisions, but was amended later that year by the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 (Vic) to apply only to Chapter 6, relating to appeals. The definition of ‘conviction’ in s.3 of the CP Act is consistent with s.8(3) of the Sentencing Act which confines the equating of a finding of guilt without a conviction to a finding of guilt with a conviction to appeals and related or subsequent proceedings.

21. The Department’s Procedural Guidelines or PAM 3 should not be relied on as a guide to interpretation, but they do indicate how the Department construes ‘convicted’ for the purposes of r.2.43(1)(oa). The Department’s policy on ‘General visa cancellation powers (s109, s116, s128, 134B and s140)’ gives examples of circumstances of when r.2.43(1)(oa) may apply:

    •If a Working Holiday (TZ-417) visa holder has been convicted of an offence against a State law and sentenced to a three month custodial sentence.

    •If a Student visa holder has been convicted of one count of assault occasioning actual bodily harm and one count of affray and sentenced to a twelve month good behaviour bond.

1. Notably, in both circumstances the applicant has been sentenced.

2. It does not appear from the context of the Victorian legislation considered above that r.2.43(1)(oa) is enlivened when a person is found guilty and no conviction is recorded.

3. As no conviction has been recorded against the applicant, and having regard to s. 8(3) of the Sentencing Act (Victoria), the Tribunal has formed the view that the ground for cancellation has not been made out. As the ground for cancellation does not exist, the cancellation would be set aside.

4. However, even if the Tribunal is wrong in its interpretation, and if the applicant is taken to have been convicted of an offence, for the purpose of s. 116(1)(g) and r.2.43(1)(oa), the Tribunal would exercise discretion to set aside the cancellation. The Tribunal’s reasoning with respect to the discretionary considerations is set out below.

   Consideration of discretion

5. 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

6. The applicant’s immigration history indicates that the applicant first came to Australia as the holder of a Visitor visa for a period of 3 weeks to visit his brother who is in Australia as the holder of a Subclass 417 visa. The applicant returned to the United Kingdom in June 2015 and applied for a Subclass 417 visa. The applicant then returned to Australia as the holder of that visa. Whilst holding that visa the applicant obtained a job for an Australian business Forex Capital Trading as a Senior Account Manager. The applicant described this as a position involved in capital trading. The applicant stated that he had substantial experience in this field in the United Kingdom. The applicant stated that his employment with this Australian company worked out well and an application was made for a Subclass 457 visa which was granted to the applicant on 20 December 2016, and valid for a period of 4 years. The applicant stated that whilst holding his subclass 457 visa he lawfully changed nominating businesses commencing work with My FX Plan in Melbourne. The applicant stated that he still worked in the role of Senior Account Manager.

7. The applicant provided the Tribunal with a recitation of his post school qualifications and experience. The applicant stated that he held the relevant certifications to work as a stockbroker in Australia.

8. The Tribunal asked the applicant what value he brought to the Australian business that he was currently working for. The applicant stated that he was involved in the management of most clients which included individual, retail, and institutional clients. The applicant stated that he managed around 200 clients. The applicant stated that he interacted with financial services with regard to ongoing compliance issues. The applicant stated that his depth of experience in the United Kingdom gave him a substantial edge in Australia and that his management expertise was being put to good use.

9. The Tribunal took evidence from the applicant’s employer Mr Nicholas Frichot.  The witness advised that the applicant worked for him as a Senior Account Manager and was also involved with information technology and marketing. He advised that the applicant had been working for him for over a two-year period. The Tribunal asked the witness what impact the ongoing cancellation of the applicants visa would have on his business. The witness stated that it would have a detrimental impact on his business. The witness stated that the applicant managed his premium clients and he was innovative and had great skills in growing the business. The witness stated that he had worked in the financial services industry for 20 years and that the skill set of the applicant was substantial. The witness stated that he would like to expand his business to a broader range of products and that it was essential to retain the applicant for that purpose. The witness stated that he also considered the applicant to be a friend and believed that the applicant’s interaction with the criminal justice system was a serious of unfortunate incidents. The witness stated that he would like to sponsor the applicant for permanent residence because of his skill set, education, and abilities. The witness stated that the retention of the applicant had a positive impact on the profitability of the business.

10. The purpose of the Subclass 457 visa is to enable the applicant to work in a nominated occupation where there is a recognisable skills shortage.  The evidence from the applicant, his Subclass 457 visa employer, and references provided by a number of friends and colleagues indicate that the applicant is fulfilling the purpose for which his visa was granted and that he is a valued employee. The Tribunal gives significant weight to this consideration in favour of not cancelling the applicant’s visa.

    The extent of compliance with visa conditions

11. There is no evidence of the applicant’s non-compliance with visa conditions.

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

12. As stated the evidence before the Tribunal indicates that the applicant is a valued employee and has made significant contributions to the Australian business that he works for.

13. Further to this the evidence before the Tribunal indicates that the applicant has been in a long-term partner relationship with an Australian citizen. The evidence before the Tribunal indicates that the applicant and his Australian partner are engaged to be married which indicative of the committed nature of the relationship. The evidence before the Tribunal indicates that the applicants partner, Ms Simone Neto, is working and studying in Victoria and maintains close links with her family. The applicant has advised that he would like to remain in Australia in the long-term. Both the applicant and his partner gave evidence to the Tribunal about the hardship that would be caused by the ongoing cancellation of the applicant’s visa and the difficulties with the applicant’s partner relocating to the United Kingdom.

14. The Tribunal gives this consideration weight in not cancelling the applicant’s visa.

    Circumstances in which ground of cancellation arose

15. The applicant advised the Tribunal that he had no criminal antecedents in the United Kingdom. The Tribunal asked the applicant at hearing about the offences that he had been charged with in the State of Victoria.  The applicant stated that in December 2016 he had an argument with his partner who had been drinking heavily and that her alcohol use was the factor in the argument. As a consequence of shouting the police were called by a person or persons unknown and attended the applicant’s premises. The applicant stated that at the time that the police attended he had taken his dog for a walk to try to diffuse the situation. The applicant stated the police were still present at his premises when he returned from the walk. The applicant stated that the police applied for an intervention order and the applicant had to attend the Collingwood Neighbourhood Justice Centre.

16. The applicant advised that he had to attend the Collingwood Neighbourhood Justice Centre on a number of occasions for judicial mentions pertaining to the police intervention order. The applicant stated that his partner spoke to the police on multiple occasions to have the matter withdrawn but the police would not withdraw the intervention order application.

17. Evidence provided to the Tribunal by the applicant’s partner pertaining to this incident confirms that her alcohol use was a factor in the argument that led to the police being called to their premises. The applicant’s partner advised the Tribunal that the applicant had never abused her physically or mentally. The applicant’s partner advised that she had struggled with alcohol in the past but had attended a rehabilitation course. The applicant’s partner advised the Tribunal that the applicant did not drink as his father had passed away from alcoholism.

18. The applicant stated that the next incident pertained to BITCOIN trading and the applicant stated that as a consequence he was charged with one count of dealing with property suspected of being the proceeds of crime, one count of negligently dealing with the proceeds of crime, and one count of failing to comply with a direction to assist. The applicant stated that these charges were eventually thrown out by a Magistrate for want of prosecution.

19. The applicant stated that he was also charged with an offence of obtaining property by deception.  The applicant stated that at the time he was questioned by police with regard to the BITCOIN offences he was also questioned about the purchase of some vinyl records. The applicant stated that he purchased some vinyl from a person called Jacob and it was this purchase that led to the charge of obtaining property by deception. The applicant stated that as a result of this charge he was also charged with ‘commit an indictable offence whilst on bail’ for the BITCOIN offences that were eventually dropped due to want of prosecution.

20. The Tribunal has had regard to the two offences for which the applicant was fined but for which no conviction was recorded. The Tribunal notes that the unlawful assault pertained to a domestic incident where the applicant and his partner were involved in a loud argument and the police were called by persons unknown. The police sought an intervention order on behalf of the applicant’s partner. The applicant’s partner has given evidence to the Tribunal that the applicant has never physically or mentally abused her in any way and that she attempted to have the police prosecution withdrawn because the incident related to her prior drinking problem. The applicant’s evidence at review pertaining to the obtain property by deception is such that the applicant claims that he purchased some vinyl records in good faith and that he was not complicit in the knowledge that these goods had been obtained by deception.

    Past and present behaviour of the visa holder towards the department

21. There is no adverse information before the Tribunal about the applicant’s behaviour towards the Department.

    Whether there would be consequential cancellations under s.140

22. There are no persons whose visas would be affected by consequential cancellations. 

    Whether there are mandatory legal consequences

23. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant may become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The Tribunal notes that the applicant is in a long-term relationship with an Australian citizen and is engaged to be married to her.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

24. There is no evidence, and the applicant does not claim, that international obligations would be breached as a result of the cancellation. There are no children affected by the cancellation. The Tribunal finds that Australia’s international obligations would not be breached as a result of the cancellation.

    Any other relevant matters

25. The applicant’s partner and employer provided oral evidence attesting to the applicant’s good character. Written character references have been provided and duly considered. The Tribunal accepts that evidence. The Tribunal accepts that those who gave evidence believe the applicant to be a good employer and a good person.

26. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that there are no grounds for cancelling the applicant’s visa because there is no record of the conviction.

27. However, if the Tribunal is wrong in its approach, the Tribunal has also had regard to discretionary considerations. The Tribunal acknowledges that some hardship may be caused by the cancellation, because the applicant would need to seek another visa and there can be no guarantee that the visa would be granted. However, the Tribunal is also mindful that the visa in question is a temporary visa which would not permit the applicant to remain in Australia permanently and the applicant needs to seek another visa in order to remain in Australia.

28. There are no consequential cancellations as a result of the cancellation of the applicant’s visa and there would be no breach of Australia’s international obligations.

29. The Tribunal places significant weight on the circumstances in which the ground for cancellation arose. The Tribunal accepts the applicant’s evidence about the circumstances in which he was charged with a number of criminal offences, a number of which were not pursued.  The Tribunal accepts the applicant’s evidence pertaining to the unlawful assault charge and the obtain property by deception charge.  The Tribunal acknowledges the applicant’s evidence that he is remorseful about the incident in which the police attended his and his partner’s premises in December 2016.  The Tribunal has had regard to the fact that no conviction was recorded in relation to the applicant.  Having regard to all the circumstances before it, the Tribunal has formed the view that the cancellation of the visa would result in more severe punishment than is warranted by the circumstances of the offences.

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

    DECISION

31. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    John Cipolla
    Senior Member