Ouriaghli Zefzafi (Migration)

Ouriaghli Zefzafi (Migration) [2023] AATA 4808 (5 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Omar Ouriaghli Zefzafi
REPRESENTATIVE:  Mrs Elyse Trotter
CASE NUMBER:  2313612
HOME AFFAIRS REFERENCE(S):          BCC2023/1322108
MEMBER:Louise Nicholls
DATE:5 April 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 05 April 2024 at 2:01pm
CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – applicant convicted of several offences – plans to study in Australia – visa already ceased – labour shortage in skilled occupation – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 140, 501
Migration Regulations 1994, r 2.43
CASES
Minister for Home Affairs v Brown (2020) 376 ALR 133
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 28 August 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant had been convicted of several offences while in Australia. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 19 December 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Material before the Tribunal
The applicant provided the following documents held on the Department’s file no BCC2023/1322108:
·Applicant’s submission dated 5 August 2023.
·Representative’s submissions dated 8 August 2023.
·Copy of applicant’s Belgian passport issued on 18 October 2022.
·Bail decision made by police officer dated 24 January 2023.
·Weekly time sheet issued from the applicant’s employer.
·Applicant’s statutory declaration made on 9 August 2023.
·Untranslated Belgium police check dated 25 October 2022.
·Letter of support from the applicant’s employer dated 9 August 2023.
The applicant provided the following documents to the Tribunal held on the Tribunal’s file no 2313612:
·Delegate’s decision record dated 28 August 2023.
·Representative’s submissions dated 12 December 2023.
·Applicant’s statutory declaration made on 11 December 2023.
·Copy of applicant’s passport biodata page.
·Belgium police check (no convictions).
·Employment timesheets.
·Statutory declarations made by the applicant’s employers and the applicant’s mother.
·Reasons for bail decision by police officer dated 24 January 2023.
CONSIDERATION OF CLAIMS AND EVIDENCE
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) of the Act. 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
The applicant gave evidence at the hearing that is 31 years old and was born in Belgium. He attended school in Belgium and when he finished school he was apprenticed as a plumber. He worked as a plumber before he came to Australia. The applicant speaks French, Arabic and Dutch.
His parents, brother and sister live in Belgium. His mother works in a hospital, his father works as a labourer, his sister works in a preschool and his brother is an electrician.
The applicant arrived in Australia as the holder of a working holiday visa on 30 October 2023. He has a friend who is living in Sydney and the applicant found work as a roofer after he arrived in Australia.
Non-disclosure certificate
A preliminary issue for consideration concerns the issue of the certificate restricting disclosure of certain information in the Departmental file pursuant to s. 375A of the Act.
The Tribunal advised the applicant at hearing that the Department has the power to restrict information on its file in certain circumstances. In this matter the Department has restricted information relating to enquiries made by the Department to different government agencies to ascertain the applicant’s address for the purpose of sending a Notice of Intention to Consider Cancellation (NOICC). The reason given for the restriction of information in certain folios is because the disclosure would enable a person to ascertain the existence of a confidential source of information and disclose lawful methods of preventing, detecting and investigating breaches or evasions of the law which would be likely to prejudice the effectiveness of those methods.
The Tribunal explained it had an obligation to tell the applicant about the existence of the certificate and ask him if he wished to make submissions on the validity of the certificate.
The Tribunal told the applicant that while it was of the view that the certificate was a valid certificate, it did not consider the restricted material was relevant to its consideration of the cancellation as the material appeared to be only relevant to discovering the applicant’s address for notification. The applicant and his representative did not make submissions on the validity of the notice, but the applicant’s representative requested a copy of the certificate for their records.
The Tribunal is of the view that the certificate is a valid certificate as it covers documents and information given to the Department in confidence by third party agencies. However, the Tribunal considers the material in the documents is not relevant to the outcome of the review and the material does not prejudice the interests of the applicant and does not undermine the prospects of a favourable decision.
Does the ground for cancellation exist?
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(1)(g) provides:
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.
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.
Regulation 2.43(1)(oa) provides:
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));….
On 27 October 2022 the applicant applied for a Subclass 417 (Working Holiday) visa which was granted on that date. He arrived in Australia on 30 October 2022.
On 14 July 2023 the delegate sent the applicant a Notice of Intention to Consider Cancellation under Section 116 of the Act (NOICC). That notice set out the information which indicated there were grounds for cancellation pursuant to r.2.43(1)(oa) of the Regulations. That information being, that the applicant had been convicted of four offences against the law of NSW on 22 February 2023 in the Local Court of NSW at Sydney Downing Centre. Those offences were described as:
·Sexually touch another person without consent – T2.
·Smoke in or on public passenger vehicle, train, public area.
·Possess prohibited drug.
·Behave offensive manner in or on public passenger vehicle etc.
The applicant was invited to comment on the grounds for cancellation. He was also advised that if the delegate was satisfied there were grounds for cancellation the applicant should submit any reasons why the visa should not be cancelled taking into account matters set out in the NOICC.
The applicant’s representative responded to the NOICC on 8 August 2023. He submitted that the applicant had admitted that he had been convicted of the offences set out in the NOICC and had pleaded guilty to the offences. He submitted that the offences arose from an incident which took place after he had been attending a social event in Bondi and became extremely intoxicated after consuming alcohol. The applicant did not remember the incident until police officers came to his home and showed him the video of the incident.
He was instructed that the applicant approached a middle-aged woman where he was perceived to have kissed her forehead and hand. The applicant also engaged in vaping on public transport and when police confronted him they found joints of marijuana in his possession from a previous and unrelated occasion.
At the hearing the Tribunal put it to the applicant that his previous statements and submissions indicated that he accepted he had been convicted of the offences set out in the cancellation decision. He did not dispute the evidence that he had been convicted of the four offences outlined above.
The Tribunal is satisfied on the evidence before it that the applicant has been convicted of offences against a law of the Commonwealth, a State or Territory, that is, he has been convicted of four offences against the law of NSW on 22 February 2023 in the Local Court of NSW at Sydney Downing Centre.
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
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. As set out below 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.
In the applicant’s representative’s submissions to the Tribunal he stated the applicant had never lived overseas and chose to apply for an Australian visa in terms of landscape and culture. He submitted the applicant is a roofer tiler/plumber by trade, and in line with the purpose of his visa, has successfully gained employment in Australia and acquired additional specialist skills and knowledge of work safety and practices.
At the hearing the applicant stated that he wanted to leave Belgium and hoped to improve his English skills while he lived and worked in Australia. The Tribunal put it to him that the working holiday visa ceased after 12 months, and the purpose of the visa was to enable persons to holiday and work during that 12 months. He stated that during his time in Australia he has worked as a roofer for his friend, and he has travelled for work to Dubbo, Taree and the Gold Coast. The applicant provided a letter of support from his employer. His employer confirmed he had been working as a roofing contractor and that he had become friends with the applicant. His employer was aware that the applicant’s visa could be cancelled and asked that some leniency be exercised. He believed that the applicant had made some bad decisions which resulted in the charges against him. He stated that the applicant was remorseful and had stopped drinking since the incident.
The applicant could not explain what he had planned to do when his 12-month working holiday visa ceased. He said he had no particular plans; he would just keep working and travelling. The Tribunal pointed out that his visa was due cease after 12 months and he would have had to apply for another visa or make arrangements to depart.
He stated he was hoping to apply for a student visa. When asked what enquiries he had made about his eligibility for a student visa he stated he had heard about a school in Bankstown but did not know the name. He was hoping to study English language. However, he had not sought any advice about his options. He was focussing on his roofing work.
The extent of compliance with visa conditions.
In the applicant’s representative’s submissions to the Tribunal he stated that the applicant has complied wholly and substantially with visa conditions in relation to his visa, including conditions 8547 and 8548. Furthermore, there is no evidence that the applicant has been uncooperative with the Department.
The Tribunal put it to the applicant at the hearing that one of the conditions attached to his working holiday visa was that he could not work for one employer for more than 6 months without the permission of the Secretary of the Department, that is, Condition 8547.
He stated that he had worked for his friend and employer for more than six months but stated that he had not worked continuously. He had a two week break in March and three week break in April. His representative noted that the Department had relaxed compliance with the six month rule during the COVID pandemic and the applicant had a bridging visa with permission to work.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
In the applicant’s submissions to the Tribunal, it was stated that he has lived in Australia for over one year in which time he had forged significant ties to his Australian work colleagues at TRP Pro Pty Ltd. It was submitted that if his visa is cancelled this will result in his employer suffering some hardship.
At the hearing the applicant stated that he would suffer hardship if his visa was cancelled because he planned to stay in Australia. He enjoyed the lifestyle in Australia and if his visa was cancelled that would change everything.
The Tribunal put it to him that even if his visa had not been cancelled there was no guarantee he could remain in Australia past the 12 month working holiday visa period. He would have to make an application for, and be eligible for another type of visa. At the time of his cancellation, he had not taken any steps or made enquiries about his visa options. He claimed he had found a school in Bankstown and had looked at the internet for information on how to apply for a visa.
He claimed it would be difficult for him to return to Belgium as he wanted to create a future in Australia. He claimed the weather was better in Australia and he enjoyed the beaches.
He claimed his parents would be affected if his visa was cancelled because they would be concerned that he was sad. He confirmed that he did not have a partner or children in Australia who would be affected by a cancellation.
Circumstances in which ground of cancellation arose.
In the submissions to the Department the applicant’s representative stated the applicant instructed that:
·The applicant was attending a social event in Bondi and became extremely intoxicated when the offences occurred. He did not remember the incident until the police officers came to his home and showed him the body cam video of that day.
·The applicant approached a middle-aged woman where he was shown to have kissed her forehead and hand.
·The applicant engaged in vaping on public transport.
·When the police confronted applicant, they found joints of marijuana in his possession from a previous and unrelated occasion.
He submitted that two of the offences for which he had been convicted had resulted in no penalty and were not considered serious. The two remaining offences are regarded as more serious however the contributing factor of intoxication should be taken into account.
The applicant’s representative referred to comments made in two judgements which referred to cancellations pursuant to s.501 of the Act. It was submitted that the s.501 cases illustrated the high standard of criminality that would result in a cancellation of a visa. He claimed the applicant would not meet this high level. He submitted that the offences committed by the applicant were in no way severe enough for the applicant to be considered ‘criminal’ and to ultimately have his visa cancelled.
In his submissions to the Tribunal the applicant’s representative states
…The Review Applicant does not deny his offences and pleaded guilty to all charges, consideration should be given to the nature and circumstances, the fact that there is no pattern of offending, as well as all other aspects of the Review Applicant’s character.
The applicant’s representative submitted that the contributing factor of intoxication must be considered and that poor judgment on one singular occasion is not necessarily an indicator of poor character as situational issues are relevant to such an assessment.
At the hearing the applicant gave evidence about the incident which gave rise to the charges against him and the consequent convictions. The Tribunal put it to the applicant that the offence of sexually touching another person would be regarded as the most serious of the four offences.
He stated that he was at Bondi with two or three friends on a very hot day and he had been drinking alcohol. He explained that he did not drink alcohol regularly and was very affected by his alcohol intake. He claimed that he blacked out and could not remember much about the incident from when he left the beach and returned home by train.
When the police called him to the police station after the incident they showed him some photos of the incident and he started to recall what happened.
He stated he was on a train and was smoking. He also remembers urinating in the corner of the carriage. He touched a lady and was very sorry about that. He did not remember much about this incident at the time but when he was shown the video he was disgusted with what he did.
The Tribunal put it to him that the woman must have complained to police and they investigated and found him through the CCTV evidence. He stated that one day he was at work and his landlord called him and he was asked to go to the police station. He went to the police station and was interviewed with an interpreter. He stated he did not watch a video of the incident on the train; he did not want to see himself drunk. He was charged at the police station and granted police bail. He also had to report once a week as part of his bail conditions.
He attended the Downing Centre Local Court and pleaded guilty in February 2023. He was assisted by an interpreter. The Tribunal put it to him that he was convicted and sentenced to a community correction order for 18 months commencing on 22 February 2023 until 21 August 2024 and fined $2000. He told the Tribunal he had not paid the fine because he lost the document. He had not done anything under the community correction order because no one had contacted him about those matters.
Since he was convicted, he has stopped drinking and has focussed on his work.
Past and present behaviour of the visa holder towards the department.
There is no evidence that the applicant has not been cooperative with the Department since his visa was cancelled.
Whether there would be consequential cancellations under s.140.

There are no consequential cancellations under s.140 of the Act.
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 possible 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.
As discussed with the applicant at the hearing, if the applicant’s visa is cancelled he may become an unlawful non-citizen and subject to immigration detention. However, the applicant may also apply for a Bridging Visa E while he makes arrangements to depart and if it was granted, he would not be detained. If he did not depart voluntarily he may be removed from Australia. He may be prevented from applying for certain visas while in Australia and also excluded from being granted certain visas for a period of three years form the date of the visa cancellation.
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.
The applicant is a citizen of Belgium and there is no information which indicates that the applicant cannot return to Belgium. The applicant agreed he could return to his family in Belgium but that he wanted to live in Australia and saw his future in Australia. There are no claims that the applicant would suffer serious or significant harm if he returned to Belgium and there is no information which would suggest Australia would be in breach of its non- refoulment obligations if he returned to Belgium. The applicant does not have a partner or children in Australia and there is no issue as to family unity or the best interests of children.
Any other relevant matters
In the submissions to the Department the applicant’s representative stated that the offences do not form part of a pattern of conduct. The incident which gave rise to the offences was an isolated incident and the applicant accepts full responsibility. The applicant has not committed any offences in Belgium or any other offences in Australia.
He submitted there is no risk to the Australian community and little risk of re-offending. The submissions pointed out that the applicant was granted police bail which is an indicator that he is not a risk to the community. The applicant has stopped drinking and has worked hard to put the past behind him.
The applicant claims he is remorseful and that his offences were not intentional and arose from the level of his intoxication. There was no deliberate act to cause harm, fear or intimidation. The applicant’s representative noted that the applicant must uphold his community correction order but was not required to enter any court ordered programs.
The applicant’s representative stated that he was engaged as a roofing contractor and that this was a skilled occupation which was in demand in the Australian labour market.
In submissions to the Tribunal the applicant’s representative noted the event which gave rise to the offences was an isolated incident which occurred while the applicant was intoxicated and he has shown remorse and not committed any further offences. He also pleaded guilty to the offences.
The applicant provided several letters of support which attest to his quiet disposition, strong work ethic, courtesy and other aspects of his character.
With respect to his employment the applicant’s representative submitted
The Review Applicant has been employed at TRP Pro Pty Ltd as a Plumber/Roofer Tiler. TRP Pro is an Australian company specialising in professional roofing and plumbing services to residential and commercial clients across Sydney and the rural suburbs. Working with subcontractors, the employer has projects in Dubbo and Coffs Harbour for Australian schools and other governmental facilities.
Due to the temporary relaxations of the subclass 417 Working Holiday visa between 31 December 2022 and 30 June 2023, the Review Applicant was able to work for TRP Pro for most of his Working Holiday visa period without contravening the 6 month limitation period. As of 1 July 2023, the Review Applicant remained working for the same employers until his visa cancellation which was less than 6 months employment.
As the Tribunal is aware, the Review Applicant’s skilled occupation is highly desirable and required for the Australian economy especially given the economic climate of the Australian labour market, being on the relevant skilled occupation list in the medium-long term. According to Hays Jobs Report, there is a shortage of plumbers who have experience working on construction sites. Taking the Review Applicant’s experience into consideration, the Review Applicant’s employer confirmed that it is extremely difficult to replace the Review Applicant with someone who has the same detailed knowledge, willing to work weekends, and travel long distances.
We argue that by not allowing the Review Applicant to remain in Australia is ultimately depriving Australia in securing an adequate skilled workforce for an advanced industrialised economy. At the hearing the applicant’s representative submitted that the applicant had pleaded guilty and was remorseful. She claimed that the incident was out of character and that he had not committed any offences before or after that incident. She stated that there was no evidence that he presented a risk to the community and had voluntarily stopped drinking alcohol.
At the Tribunal hearing his representative submitted that during the COVID 19 pandemic the Department had relaxed its attitude to condition 8457 and had not taken action against visa holders who worked for more than 6 months with an employer.
She submitted that if his visa was cancelled that he faced a three-year exclusion period and could not apply for a student visa and study English.
Conclusion
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
The Tribunal has considered the evidence provided by the applicant and submissions made by his legal representative in determining whether the applicant’s visa should be cancelled.
The Tribunal accepts that the applicant has been cooperative with the Department and that he has generally complied with the conditions of his working holiday visa. It accepts the submissions of the applicant’s representative that the requirements of condition 8547 were relaxed during the period of the COVID 19 pandemic and he was generally compliant with the other conditions attached to his visa. It also accepts that he has not committed any criminal offences in Belgium and, other than for the offences which are the subject of this decision, he has not committed any other offences in Australia. It accepts that his employer and two other persons have provided him with letters of support. It accepts he has been a hardworking employee and that his employer may find it difficult to replace him. However, with respect to his employment there is nothing which indicates that he could have remained working for his employer after his working holiday visa was due to cease in October 2023 even if his visa had not been cancelled. The applicant did not hold, nor had he applied for, a substantive visa which would have given him permission to work.
Despite the factors set out above, the Tribunal considers there are other factors which weigh heavily in favour of the cancellation of his visa.
The applicant’s representative made submissions on the nature of the applicant’s convictions, referring to one Federal Court authority[1] and two AAT decisions. He submitted:
That the offences committed by the Applicant are in no way severe enough for the Review Applicant to be considered ‘criminal’ and to ultimately have his visa cancelled. In support of this, we also refer to recent decisions by the Tribunal where the applicants were convicted of offences similar to that of the Review Applicant, and the Tribunal Member still set the decision to cancel aside.
[1] Minister for Home Affairs v Brown (2020) 376 ALR 133; [2020] FCAFC 21
With respect to the Federal Court authority the Tribunal does not consider it is analogous to the present matter. The subject of the cancellation in that matter was the holder of a permanent visa who had lived in Australia since he was 7 years of age and had an entirely different history of engagement with the Department. In relation to the first AAT decision the applicant’s conviction for sexual touching had been quashed and he was found guilty of a drug offence but the court did not proceed to a conviction. In the second AAT decision the subject of the decision was a traffic offence which was found to be at the lower end of offending.
The Tribunal does not accept the applicant’s submissions that the offences for which he was convicted were not serious offences. While it accepts that smoking in a public passenger vehicle would be regarded as a minor offence it does not accept that the other three offences were minor offences. In particular, it does not accept that the offence of “Sexually touch another person without consent-T2” is a minor or less serious offence. The NSW Criminal Trials Courts Bench Book[2] notes that
[2] Criminal Trial Courts Bench Book NSW
The Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (the amending Act) implemented recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse and the Child Sexual Offences Review team to reform the law with respect to sexual offences. These included repealing the basic and aggravated offences of indecent assault (former ss 61L and 61M Crimes Act 1900, respectively) and replacing them with separate offences of sexual touching in ss 61KC and 61KD for adults, and in ss 66DA and 66DB for children.
The new provisions apply to offences committed on or after 1 December 2018: Crimes Act 1900, Sch 11, Pt 35.
“Sexual touching” is defined in s 61HB(1) as a person touching another person in circumstances a reasonable person would consider to be sexual:
(a) with any part of the body or with anything else, or
(b) through anything, including anything worn by the person doing the touching or by the person being touched.
The following matters in s 61HB(2) must be considered when deciding whether a reasonable person would consider touching to be sexual:
(a) whether the area of the body touched or doing the touching is the person’s genital area or anal area or (in the case of a female person, or transgender or intersex person identifying as female) the person’s breasts, whether or not the breasts are sexually developed, or
(b) whether the person doing the touching does so for the purpose of obtaining sexual arousal or sexual gratification, or
(c) whether any other aspect of the touching (including the circumstances in which it is done) makes it sexual.
The applicant did not give any detailed oral evidence about the incident on the train which resulted in him being charged with sexual touching; he claimed he could not remember the incident and that he declined to watch the CCTV presented to him at the police station. He also stated he was disgusted with his conduct.
The applicant’s representative submitted his instructions were that the applicant kissed the complainant’s forehead and hand and in his later submissions he explained the applicant’s conduct as being overly familiar in attempting to apologise to the complainant. He submitted that:
The Tribunal should consider relevant Belgian social customs, which may provide additional context to the incident. We note that in Belgium, there is a cultural practice of greeting others with different actions based on gender and the level of familiarity. Men are typically greeted with a handshake; while women or those with whom there is a more friendly relationship are traditionally greeted with three kisses. In turn, the Review Applicant instructs that at the time, he genuinely believed that he was apologising to the victim when he did the acts that resulted in the conviction. In his intoxicated state, the Review Applicant simply and inadvertently apologised to her as an individual with whom he had a high level of familiarity. Importantly, he fully accepts and notes this is not accepted practice in Australia.
While the applicant claims he was remorseful for his conduct, the Tribunal considers he has attempted to minimise his conduct by either claiming it was a kiss on non-sexual parts of the woman’s body or something which was not sexual but rather overly familiar. However, it is clear from the terms of the offence that the touching must have had a sexual element for the applicant to be charged and for the court to accept a plea of guilty and convict the applicant with a fine and community corrections order. The applicant also admitted that he urinated in the train carriage during the incident and was convicted of offensive behaviour.
The Tribunal considers that the nature of the offences and convictions must be considered in the context of the applicant’s temporary visa status. At the time of the cancellation, he was the holder of a 12-month Subclass 417 Working Holiday visa and had been convicted of these offences some four months after his arrival in October 2022. In the normal course of events the applicant would have had to depart Australia at the end of the visa period in October 2023 unless he was eligible for another class of visa. He did not claim he had undertaken prescribed regional work during the period of his visa which may have made him eligible for a second working holiday visa. He had not applied for, or made enquiries about, other visas to which he may have been entitled. At the Tribunal hearing he claimed that he wanted to study but had not taken any steps to find out if he was eligible other than he had consulted the internet. The Tribunal considers that the short-term duration of the working holiday visa and the nature and circumstances of the offences weigh heavily in favour of his visa being cancelled.
Further he has no family or dependents who would be affected by the cancellation, and he could not demonstrate any significant hardship he or others would suffer if his visa was cancelled. The Tribunal accepts that he enjoys the lifestyle and weather in Australia and would be disappointed if he had to depart but it does not consider that this constitutes hardship. He gave evidence that he had been working as a plumber in Belgium and that his parents and two siblings were living in Belgium and the Tribunal considers he would have considerable family support if he returned. There is no evidence that the applicant’s employer had any long term plans to sponsor the applicant or continue his employment once his visa ceased and in these circumstances the Tribunal does not accept his employer would suffer hardship if the visa is cancelled.
There is no impediment to the applicant returning to Belgium and if his visa is cancelled and he may make an application for a Bridging Visa E which, if granted, will allow him to make arrangements to depart. He may be subject to a three-year exclusion period if he wishes to make an application for certain visas and may be limited in his options for applying for another visa onshore, however, the Tribunal does not consider that these factors weigh against cancelling his visa.
Overall, those factors which indicate his visa should be cancelled outweigh those other factors which might indicate that the visa should not be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.
Louise Nicholls
Senior Member

[2023] AATA 4808

5 April 2023

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