Pauvert (Migration)

[2023] AATA 1088

Pauvert (Migration) [2023] AATA 1088 (26 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Clement Louis Herve Pauvert

CASE NUMBER:  2301953

HOME AFFAIRS REFERENCE(S):          BCC2022/4659069

MEMBER:Bridget Cullen

DATE:26 April 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 408 (Temporary Activity) visa.

Statement made on 26 April 2023 at 2.22pm

CATCHWORDS

MIGRATION – cancellation – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – criminal convictions, fines and driving suspension – ground for cancellation conceded – discretion to cancel visa – work history – employment suspended after visa cancelled – consequences of cancellation on future visa options – circumstances of offending – minor and non-violent offences – travelling and unaware of court proceedings, so unable to contest charges – remorse and cooperation with department and tribunal – social connections and character references – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(g)

Migration Regulations 1994 (Cth), r 2.43(oa)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 February 2023 made by a delegate of the Minister for Home Affairs to cancel the Applicant’s Subclass 408 (Temporary Activity) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(g) following the Applicant’s conviction of three offences whilst he resided in Kalgoorlie, Western Australia. The Applicant was convicted in the Kalgoorlie Magistrates Court on 7 November 2019 of (1) failure to carry an overseas authorisation to drive; (2) providing false or misleading personal details; and (3) failure to provide a sample of breach for breath analysis test. The Applicant did not attend court as requested, and the convictions were recorded in his absence. 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 17 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Razali Linda, the Applicant’s flatmate. The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages.

4. 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

5. 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.

   Does the ground for cancellation exist?

   s 116(1)(g) - prescribed ground

6. A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(oa) is relevant. Regulation 2.43(oa) states that 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 time of the conviction and regardless of the penalty imposed (if any).

7. The Applicant has provided the Tribunal with a copy of the delegate’s decision record, as well as numerous character references, information relating to his work in Australia, his tenancy agreement, medical records, and various other documents. The Applicant has engaged in a meaningful way with the Tribunal.

8. In response to the Department’s Notification of Intention to Consider Cancellation dated 9 December 2022, and again before the Tribunal, the Applicant agreed that he has been convicted of the offences set out above and conceded that a ground for cancellation exists. He confirmed at the hearing that he had paid the penalty imposed, which was a fine of $2,700.00, and further confirmed that had served a suspension from driving for a period of nine months.

9. The Tribunal finds that a ground to cancel the Applicant’s visa exists, as he is the holder of a Temporary Activity visa and he has been convicted of offences against the law of a State of Australia, being Western Australia.

10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) of the Act 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

11. 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

12. The Applicant last arrived in Australia on 31 October 2022 as the holder of the Temporary Activity visa under review, for purpose of the Activity “Australian Government Endorsed Events”. He obtained the visa for the purpose of working as with an Insurance Claims company that assisted with resolution of flood claims. He then worked in this role, but his contract was placed on hold given the cancellation of the Applicant’s visa.

13. The Applicant gave evidence about his intention to work consistent with the purpose of the Temporary Activity visa, which the Tribunal accepts as being genuine. The cancellation has the potential to cause the Applicant difficulty down the track as he wishes to explore lawful means of obtaining a visa to remain in Australia on a longer-term basis. Having a cancellation on his record could cause the Applicant difficulties in seeking opportunities in the future. The Applicant is highly emotional about potentially compromising future, genuine visa pathways.

14. The Tribunal is satisfied that on balance, there are compelling reasons for the Applicant to remain in Australia.

15. The Tribunal gives this consideration weight in favour of the Applicant

    The extent of compliance with visa conditions

16. The Applicant’s visa was subject to condition 8107, which requires, amongst other things, the visa holder not to cease being employed by the employer in relation to which the visa was granted. The Applicant is currently suspended from his role working in flood claims resolution, because of the cancellation of his visa.

17. The Applicant’s visa was also subject to Condition 8303 (visa holder must not become involved in activities disruptive to, or violence threatening hard to, the Australian community or a group within the Australian community); and Condition 8501 (visa holder must maintain adequate arrangements for health insurance).

18. There is no information before the Tribunal suggesting that that Applicant has not complied with Condition 8303. The evidence before the Tribunal indicates that the has maintained private health insurance and has therefore been compliant with Condition 8501.

19. The Tribunal gives the Applicant’s suspension from his employment some weight in favour of cancellation but gives the Applicant’s compliance with Conditions 8107 and 8303 some weight in favour of the Applicant and not cancelling the visa. The result of the weighing exercise in relation to the Applicant’s compliance with visa conditions is that, overall, the Tribunal weighs this as a neutral factor, neither for nor against cancellation.

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

    Circumstances in which ground of cancellation arose

20. The Applicant has been in Australia since September of 2018 when he first entered on a Subclass 417 (Working Holiday) visa. During this time, the Applicant has formed several positive social connections within Australia.

21. The Applicant is distressed about the prospect of losing the opportunity to remain in Australia, and of returning to France, in circumstances where he recognises that he is responsible for the circumstances in which the ground for cancellation arose. Given the nexus between the Applicant’s distress in relation to these circumstances, and the potential psychological and emotional harm a cancellation will cause him, the Tribunal has addressed these factors together.

22. The Applicant has put forward several personal character references, which acknowledge the behaviour that led to cancellation. He submits, and the Tribunal agrees, that the offences he was convicted of, in his absence, are of a minor and non-violent nature.

23. The Tribunal raised with the Applicant the concerns that were expressed by the delegate in relation to the offended. Although the delegate’s reasoning is not relevant in merits review, as the Tribunal is charged with making a fresh decision, the Tribunal had the same concerns about the Applicant’s failure to appear in Court on the charges and wondered how the Applicant found himself charged with offences that might indicate an obstructive demeanour on his part in relation to the provision of his name.

24. The Applicant told the Tribunal that his name was incorrectly recorded when he was arrested and that he did not deliberately attempt to mislead the police. The Tribunal has had the benefit of hearing from the Applicant, in person. He explained that he believed the arresting officers in Kalgoorlie could not understand his strong French accent and recorded his name incorrectly when he gave it to them. The Tribunal thinks it quite plausible that the Applicant’s accent would have made it a challenge, as it was a challenge for the Tribunal in a hearing context where it was also apparent that the Applicant very much wanted to be cooperative and provide information.

25. The Applicant said that he did not have his licence with him when he was arrested, which is why he was unable to provide it to the police officers at the time of the offence. The Applicant says that while searching his pockets, he came across and pulled out his credit card, which he then handed to officers. This facilitated the officer’s ability to accurately record his name, but also led to the concerns that he had tried to mislead the officers by providing a different name earlier.

26. Further, the Applicant claimed that the alcohol test device did not work at the time he was approached by police and that the failure to provide a test was not due to deliberate actions by him. The Applicant did not contest the charges, as he did not receive the summons to attend. The reason for this was that he had left Kalgoorlie to travel elsewhere, and he only became aware following receipt of a debt notice from Baycorp Debt Collection, seeking to collect the $2,700.00 fine.

27. The Applicant was in his early 20s when the offences happened in 2019. He says that he has matured, learned from his mistake, and is remorseful. The Applicant’s character references attest to both his remorsefulness about the offences, general character, and distress at the prospect of having his visa cancelled.

28. The Applicant’s character references include the following:

    • Daniel Bromley of DB Painting:

    “I usually do an interview before hiring someone, this was the case for Mr Clement Pauvert. I don’t always ask for police checks however I always ask if they have a criminal record during the interview to determine if it could have any impact on my business. Mr Clement Pauvert was immediately honest and notified me about the offence he had committed in Kalgoorlie and seemed extremely remorseful and embarrassed about the whole situation. As I appreciated the fact that he was honest and that he seemed competent and experienced, I decided to hire him anyway.

    I don’t regret it at all, because working with Clement was a real pleasure. He was very professional and he worked very well. He was autonomous and he knew how to manage the building site all by himself. He was always respectful towards me and the clients. Clement was a real asset to my business and I was very disappointed I couldn’t keep him on because of the covid 19 impact and he also had to finish his farming obligations. It’s not easy to find workers of his quality, he can come back to work for me whenever he wants and sponsorship would be available if he has the correct eligibility.”

    • Marina Kerrache, a friend and a clinician psychologist specialising in neuropsychology:

    “After graduating in France as a clinician psychologist specialized in neuropsychology, I’ve decided to expatriate myself in Australia where I met Mr. Pauvert four months ago. During this period, I have known him to be a fine, responsible, hardworking character, with a lot of kindness toward the people he surrounds himself with.

    …

    “Despite some misapprehensions concerning his case, he confessed a lack of judgment he exhibited and expressed remorse at the heart of the matter. In my opinion, I could not believe Mr. Pauvert will be able to intend anything bad in his surroundings. He always exhibited kindness toward me and other friends and was always a great support when I (we) had to face adversity. Moreover, he always worked, paid his bills on time, and had no other issues with the law during his time in Australia.”

    “Mr. Pauvert has thus far shown a resolute demeanour in moving forwards this mistake in a successful and constructive manner.”

    • Grechel Taucare, a friend:

    “Eventually, we became good friends and he openly shared with me the offenses he committed. It was clear to me that he recognised his wrongdoing and that he regretted what he did, and he would not do it again. During the period I have been meeting Clement, he has always been very respectful; to me and everybody in the class. Clement has demonstrated to be a good citizen, he has always been very kind and willing to volunteer as a helper in different social
    activities”.

    • Florent Lenogue, a friend and resident of Australia for 4 years:

    “I heard that he received a notice from the government and I really want to share my opinion because even if he made a mistake, he does not deserve to leave the country. He has a lot of projects in his head and if he works hard it is so that one day these projects will see the light of day here in Australia. Australia needs exemplary workers like Clement and you will understand this when you get the letters from his employers.”

    • Linda Razali, a friend and the Applicant’s co-tenant:

    “Granted, Clement made a mistake on October 13, 2019. But he only made one in Australia, and I think we all deserve a second chance. Since that day, Clement has always worked, and has been able to get by on his own and has always had the confidence with his employers. He had his visas renewed since that incident and has continued to create his future in Australia. He is a hard worker who can work everyday if he must because our quotes is that you don’t get something for nothing in life.”

29. The Tribunal accepts that the cancellation of the Applicant’s visa could potentially result in hardship including psychological and emotional hardship to the Applicant. The Tribunal weighs this in the Applicant’s favour, as a factor against cancellation.

30. The Applicant has accepted that there is a ground for cancellation, demonstrating insight into the circumstances of his cancellation. The Tribunal accepts that the Applicant’s failure to appear in Court was because of his being genuinely unaware of the summons as he had moved. While the Tribunal is not able to ignore the fact of the Applicant’s convictions, it is also conscious that the Applicant has an alternate version of fact that he did not have the opportunity to present.

31. The Tribunal considers that in the Applicant’s circumstances, cancellation would be disproportionate to the offending conduct, particularly in view of the passage of several years since the 2019 offending conduct. In the years between 2019 and the hearing, the Applicant says that he has had no other conduct of an adverse nature with Australian law enforcement. There is no information before the Tribunal suggesting to the contrary.

32. The Tribunal weights the circumstances of the Applicant’s offending as a factor that is slightly in favour of cancellation, as all criminal conduct is a serious matter, particularly in relation to temporary visa holders such as the Applicant.

    Past and present behaviour of the visa holder towards the Department

33. The Applicant responded to the NOITCC and has fully engaged in the cancellation process. He was cooperative and forthcoming with information during the Tribunal hearing.

34. The Tribunal gives this aspect weight in the Applicant’s favour, as a factor against cancellation.

    Whether there would be consequential cancellations under s.140

35. There is no evidence before the Tribunal of any consequential cancellation under s140. Accordingly, the Tribunal gives this aspect neutral weight.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

36. The cancellation of the Applicant’s visa means that unless the Applicant makes other arrangements, he could be liable for detention and removal from Australia. He would also encounter difficulties in being granted any further visas. The Tribunal considers those potential consequences to be serious, however they are intended legislative consequences. Accordingly, the Tribunal gives this aspect neutral weight.

    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

37. There is no evidence before the Tribunal to suggest that Australia would be in breach of any of its international obligations, in case of cancellation. Accordingly, the Tribunal gives this aspect neutral weight.

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

38. The Subclass 408 is not a permanent visa. Had it not been cancelled; the Applicant’s visa would expire on 7 October 2023. There is no evidence before the Tribunal of the Applicant having strong family or other ties in Australia as his family lives in France. Accordingly, the Tribunal gives this aspect neutral weight.

    Any other relevant matters

39. The Tribunal is not aware of any other relevant matters for its consideration.

    Conclusion

40. The Tribunal has considered the evidence independently and cumulatively. There are aspects that weigh in the Applicant’s favour, and aspects that weigh in favour of cancellation. On balance, the Tribunal is satisfied that the considerations that weigh in the Applicant’s favour outweigh other considerations. Overall, the Tribunal accepts that the offending conduct was minor and non-violent, that the Applicant did not have the opportunity to contest the charges as he did not receive the summons, and he has been remorseful and cooperative with the review process. The Applicant has formed strong social connections and has matured since the time of the offending in 2019.

41. Considering the overall circumstances, the Tribunal concludes that the visa should not be cancelled.

    DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 408 (Temporary Activity) visa.

   Bridget Cullen
   Senior Member