Murphy (Migration)

[2019] AATA 1428

Murphy (Migration) [2019] AATA 1428 (3 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sean Patrick Murphy

CASE NUMBER:  1816275

HOME AFFAIRS REFERENCE(S):           BCC2018/1617904

MEMBER:Louise Nicholls

DATE:3 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 03 January 2019 at 1:14pm

CATCHWORDS

MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – convicted of offences – employment opportunities in Australia – specialised duties – no specified work in regional Australia – family support in Ireland – decision under review affirmed         

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a citizen of Ireland and he is 25 years of age. He was granted a Subclass 417 (Working Holiday) visa on 16 June 2017 with an expiry date of 19 August 2018.

2. On 4 May 2018 a delegate of the Minister for Home Affairs sent the applicant a Notice of Intention to Consider Cancellation (NOICC).

3. The NOICC put it to the applicant that he had been convicted of offences against the laws of New South Wales, that is, convictions for possession of a prohibited drug on 16 January 2018 and Affray on 7 March 2018. As a result the applicant’s visa was subject to cancellation by virtue of s.116 of the Migration Act 1958 (the Act). The applicant was invited to comment on the information in the NOICC and show why the ground or grounds for cancellation did not exist or give reasons why the visa should not be cancelled.

4. On 18 May 2018 the applicant’s representative made written submissions on why the visa should not be cancelled and provided the applicant’s statutory declaration and a reference letter from his employer EM Civil. Essentially he submitted that his visa should not be cancelled because he was a young man working to make a life for himself, that his convictions did not reflect his true character and he is deeply sorry and regretful for behaving in such a way. He stated he worked in a civil infrastructure business which undertook work for Ausgrid and that he hoped to continue working for this business in the foreseeable future.

5. On 25 May 2018 the delegate cancelled the applicant’s Subclass 417 (Working Holiday) visa. The delegate cancelled the visa under s.116(g) on the basis that the applicant had been convicted of two criminal offences at the time the NOICC was issued and convicted of a further offence of assault on 23 May 2018 prior to the making of the decision. The delegate considered the reasons put forward by the applicant that his visa should not be cancelled but found, on balance, that the visa should be cancelled.

6. On 4 June 2018 the applicant made an application for review of the cancellation decision. The applicant provided a copy of the delegate’s cancellation decision. He also provided a copy of a statement made by Ms Alana Gibson on 16 November 2018, a statement made by his employer Eoin Moynihan on 16 November 2018 and NSW Police Facts sheets relevant to the circumstances of his three convictions.

7. The applicant appeared before the Tribunal on 19 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Alana Gibson and the applicant’s employer Mr Eoin Moynihan.

8. The applicant was represented in relation to the review by his registered migration agent who attended by way of conference telephone

9. The applicant gave evidence about his background, his visa history, the grounds for cancellation and his current circumstances. Ms Gibson gave evidence about her knowledge of, and contact with, the applicant and Mr Moynihan gave evidence about the applicant’s employment skills and conduct. Both witnesses were aware that the applicant had been convicted of several offences.

10. 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

11. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

12. 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(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

13. The applicant is 25 years of age and was born in Derry, Northern Ireland. He and his family moved to County Tyrone where he lived and attended school. His father is the manager of a Citroen car dealership and his mother works in the retail industry. His brother and sister live at home and work in County Tyrone.

14. After the applicant left high school he attended college for 2 years in Omagh. He left college after two years and worked in a demolition company in Dublin and then in a factory in County Tyrone. He told the Tribunal that he had almost finished his electrical trades’ course and only needed to do six months further study before he could register as a licensed electrician.

15. The applicant was in a relationship with his girlfriend, Karla during his time in Sydney; however, she had returned to Ireland and is now living in County Clare. He stated they were having a break in the relationship. The Tribunal noted that he had been convicted of assaulting Karla in Sydney in May 2018 and that she had been unwilling to make a statement accusing him of assault but that other witnesses had provided evidence of the assault.

16. Prior to cancellation of his visa, he held a working holiday visa but he told the Tribunal his intention was to obtain sponsorship and a temporary work visa to work and live in Australia.  

    Does the ground for cancellation exist?

17. 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. Section 116(g) provides that

    Section 116 Power to cancel

    (1)     Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

    ….

    (g)  a prescribed ground for cancelling a visa applies to the holder.

18. 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 (oa) is relevant.

19. Regulation 2.43 (1) (oa) provides that

    (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));

20. The NOICC stated that the applicant had been convicted of two offences following the grant of the applicant’s Working Holiday visa; that is,

    1.    Offence: Possess prohibited drug

    Offence date: 15 December 2017

    Sentence: Fine $440

    Court date/name: 16 January 2018, Downing Centre Local Court.

    2.    Offence: Affray-T1

    Offence date: 19 January 2018

    Sentence: Community service order 80 hours

    Court date/name: 7 March 2018, Downing Centre Local Court.

21. The delegate was satisfied that the applicant had been convicted of the offences set out above and found that there were grounds for cancellation pursuant to s.116 (1)(g) of the Act and Regulation 2.43(oa) of the Regulations.

22. The delegate also found that after the NOICC was issued the applicant was convicted of Common Assault (DV) on 23 May 2013 and fined the sum of $1100.

23. After discussing the delegate’s decision record the applicant gave evidence that he had been convicted of three offences in New South Wales and agreed there were grounds for cancellation of his visa.

24. The Tribunal notes the material in the delegate’s decision record and the oral evidence of the applicant and finds that the applicant was the holder of a temporary visa and has been convicted of three offences against the laws of New South Wales.

25. 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

26. 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’.

27. The applicant gave evidence that the purpose of his travel to Australia was to work while the holder of a working holiday visa and then to obtain a sponsored temporary work visa. His plan was to stay in Australia on a long term basis. He had a few friends who had found work in Australia and he also had cousins living and working in Perth. He wanted to remain in Australia because of the opportunities for work and because he enjoyed the Australian lifestyle.

28. He stated that he would experience hardship if he returned to Ireland without being able to obtain a temporary work visa as he hoped to live and work in Australia and he would see it as a backward step if he returned to Ireland. He stated that there were more work opportunities in Australia than Ireland. The Tribunal put it to him that if he returned to Ireland he would be able to obtain the support of family and friends in Ireland and to obtain work in Ireland, the United Kingdom or other parts of the European Union.

29. The applicant first arrived in Australia in the company of one friend who eventually went to Melbourne to work. The applicant spent two weeks in Ulladulla and then returned to Sydney where he worked for a scaffolding company. He found full time work with EM Civil in April 2018 and has been working for them since then.

30. He stated that the work he was doing for his current employer was skilled work for Ausgrid. He was involved in changing cables and digging specialised trenches. He wanted to stay in Australia and better himself. If he had to leave he would be disappointed and it would be hard to explain to his parents. He had not told them about his convictions.

31. He currently lives in a share house with four other people and pays $282 a week in rent. He sends some money to Ireland and uses public transport to get around.

32. The Tribunal put it to the applicant that he had been convicted of three offences within a short period of time and the offences appeared to be related to the overconsumption of alcohol. He stated that when he arrived he became friendly with the wrong group of people and a lot of their socialising involved drinking. He had grown up in a rural area of Ireland and had not experienced living in a large city before he moved to Sydney; he felt isolated, lonely and a little bit overwhelmed.

33. Since he had been convicted he had reduced his drinking and only has a small amount on weekends. He has not made any enquiries or thought about joining an alcohol reduction program or seeking counselling.

34. The Tribunal invited the applicant to comment on, or respond to, information in the Computerised Police records held by the NSW Police which showed that the police had recorded seven incidents involving intoxication from August 2017 to April 2018. In some incidents he had been directed to “move on” and others led to his convictions. The most serious offence which took place in April 2018 involved an assault on his girlfriend Karla with whom he had been living for four months. She had been injured as a result of that assault. He was advised that the information is relevant to the consideration of whether his visa should be cancelled and he was also advised he could seek further time to comment or respond to the information.

35. He told the Tribunal that he could not recall any of the incidents as a result of his heavy intoxication at the time of the incidents.

36. Mr Moynihan, the sole Director of EM Civil provided the Tribunal with a character reference and also gave evidence on the applicant’s behalf. He was aware of the applicant’s convictions and his drinking problems. He stated that the applicant was a good worker and always early for work. He employed 16 employees and the workers had to undergo regular drug and alcohol testing because of their work on high voltage cables. The applicant was always clear of drugs and alcohol when he turned up for work. The work the applicant did for Ausgrid was specialised and involved working with high voltage electricity. As the applicant had electrical training he was able to do this skilled work and he was an asset to the company. He would continue to employ the applicant despite his convictions and would be happy to sponsor him for a temporary visa.

37. Ms Gibson provided a statement and gave oral evidence on the applicant’s behalf. She stated that she met the applicant through EM Civil where she worked in the office. The applicant was looking for weekend work at the company. They had none at that stage but she asked him if he could do some regular handyman tasks at her home in Ruse in south west Sydney. The applicant told her about his convictions and she found it hard to believe as he had observed him to be a polite and conscientious young man when he was working at EM Civil.

38. Ms Gibson is a single mother who works in two jobs to make ends meet. She shares her home with her mother and disabled stepfather. Ms Gibson’s home needed some modification for her stepfather and the applicant undertook this work and got to know the family and ended up having regular contact with them each weekend. The applicant worked around the house, acted as a companion for Ms Gibson’s stepfather and took her niece to athletics.

39. She told the Tribunal that the applicant now comes to their home on Friday evenings and stays for the weekend. He has made a huge difference to their lives and they have become very reliant on him.  He now does work around the house for them for no payment. The family does not drink and she has not observed the applicant to have too much alcohol when he is staying with them. She believes the applicant deserves a second chance.

40. The Tribunal has considered the matters relevant to whether the applicant’s visa should be cancelled.

41. The Tribunal finds that the applicant was the holder of a working holiday visa which was due to expire in August 2018. As it does not appear that he undertook any specified regional work he would, in the normal course of events, have had to depart Australia at the end of his visa period. He stated that he was hoping to obtain a sponsored temporary work visa and his employer indicated he would be willing to sponsor him for such a visa, however, there was no evidence suggesting that the applicant was in the process of making such an application.

42. The applicant stated he wanted to stay in Australia to access the employment opportunities and enjoy an Australian lifestyle. He referred to his disappointment if he was not able to work long term in Australia. The Tribunal does not consider that these matters constitute a compelling need to remain in Australia. If he returned to Ireland he would have access to work opportunities in Ireland, the United Kingdom and the European Union[1] and would also be able to complete the remaining six months of his Irish electrical trades course in order to become a licensed electrician.

    [1] Persons born in Northern Ireland are entitled to both Irish and British nationality. British Nationality Act 1981 and the Irish Nationality and Citizenship Acts 1956 to 2004.

43. As discussed with the applicant, the NSW Police records clearly show a pattern of anti-social incidents involving intoxication between August 2017 and April 2018, including an assault on his girlfriend which was observed and reported to police by persons witnessing the assault. The applicant does not have any close family in Australia and given his age, his immaturity and his drinking problems it may be to his advantage to return and access the support of family and close friends in Ireland. Ms Gibson and her parents have recently provided the applicant with a “de facto” family experience on weekends since April/May 2018 but his relationship with them has been short term. While it has been a supportive environment for the applicant, given its short duration there is no guarantee it will continue into the future. The applicant has not approached any programs or engaged a counsellor to assist him with his alcohol problems. He appears to have little insight into how to address these issues on his own.

44. There is no evidence that the applicant has failed to comply with his visa conditions and it appears from the evidence that when he is not intoxicated he is a well-regarded, honest, kind and competent young man. He was very distressed at the Tribunal hearing when he was giving evidence about his situation and the prospect of his visa being cancelled.

45. If the applicant’s visa is cancelled he will be required to depart Australia. He holds a passport and there is no reason he cannot return to Ireland; there is no prospect of indefinite detention. It is highly likely that the applicant will be granted a bridging visa on departure grounds and even though he will not have a valid visa he will have sufficient time to make arrangements to depart.

46. There is no prospect that if the visa was cancelled Australia’s international non refoulment obligations would be breached. There is no evidence that there are any children under the age of 18 years who would be affected by the cancellation and there are no consequential cancellations. The applicant’s former partner has returned to Ireland and there is no evidence the applicant has a current relationship with an Australian citizen or resident.

47. In weighing the circumstances, the Tribunal has placed significant weight on the nature of the applicant’s conduct in the short period he has been in Australia. It notes that the convictions and other contacts with police have generally involved intoxication and aggressive conduct, including an assault on his girlfriend. He has not sought to obtain counselling for these problems and told the Tribunal he had no recall of these incidents due to intoxication. This is a matter of some concern because it suggests that without some treatment, family support or management of his drinking problems this conduct may continue and may result in the applicant or another person being seriously harmed in the future.

48. The Tribunal accepts that the applicant will be disappointed if his visa is cancelled and that his hopes for the future may be not be realised in the short term. He appears to be held in high regard by his employer and Ms Gibson and her family. If his visa is cancelled he will be subject to a three year exclusion period and will not be able to apply for a temporary work visa. However, during this period he may address those problems which have led to his convictions and he may possess a greater level of maturity at the end of that period and revisit his intentions to obtain a temporary work visa in Australia at that time.

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

    DECISION

50. The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

    Louise Nicholls
    Senior Member