Pelser (Migration)

[2024] AATA 3871

Pelser (Migration) [2024] AATA 3871 (22 May 2024)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Henry William Pelser

REPRESENTATIVE:  Mr Jan Abraham Kotze

CASE NUMBER:  2401718

HOME AFFAIRS REFERENCE(S):          BCC2023/404847

MEMBER:P. Maishman

DATE OF DECISION:  22 May 2024

DATE CORRIGENDUM

SIGNED:30 August 2024

PLACE OF DECISION:  Perth

AMENDMENT:  The following corrections are made to the decision:

The reference to the country of Ireland (para 15) be corrected to be the country of South Africa.

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Henry William Pelser

REPRESENTATIVE:  Mr Jan Abraham Kotze

CASE NUMBER:  2401718

HOME AFFAIRS REFERENCE(S):          BCC2023/404847

MEMBER:P. Maishman

DATE:22 May 2024

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

Statement made on 22 May 2024 at 3:49pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – criminal convictions, fine and orders – ground for cancellation conceded – continuing employment in sector with skills shortage – no assets in home country in and work qualifications no longer current – circumstances of offending – ceased relationship and using alcohol and underwent counselling of own volition – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(g)
Migration Regulations 1994 (Cth), r 2.43(1)(oa)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 January 2024 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant was convicted of offences, a prescribed ground as defined in reg 2.43(1)(oa). 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 30 April 2024 to give evidence and present arguments.

4. The applicant was represented in relation to the review.

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

6. The applicant is a 34 year old citizen of South Africa. The applicant gave the Tribunal a copy of the delegates decision record with his application for review. The delegates decision record outlines the applicant arrived in Australia on 5 January 2021 as the holder of Temporary Skills Shortage (SC 482) visa and has not departed Australia. The delegate records the Department received information that the applicant was convicted of offences in the Perth Magistrate’s Court:

Conviction Date	Offence	Result
16 January 2023	Disorderly behaviour in public.	FINE: $300
16 June 2023	Breached a Family Violence Restraining Order. Unlawfully assaulted with circumstances of aggravation. Common Assault in Circumstances of Aggravation or racial Aggravation (x2).	Community Based Order: 1 Year Concurrent from 16 June 2023 – Concurrent.
27 October 2023	Endanger life, health or safety of a person.	Intensive Supervision Order: 9 Months Concurrent from 27 October 2023 – Concurrent.

1. 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.

   Does the ground for cancellation exist?

2. 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(1)(oa) is relevant.

   Reg 2.43 Grounds for cancellation of visa (Act, s116)

   (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:  

   …

   (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));

   …

3. The applicant does not contest he was convicted of multiple offences as outlined in the delegates decision.

4. The Tribunal finds that the applicant was a holder of a Subclass 482 visa, which is a temporary visa other than a Bridging visa and a Special Category visa. The Tribunal finds that the applicant has been convicted of offences against the laws of a state. The Tribunal finds that there are grounds for cancelling the visa under s 116(1)(g) and reg 2.43(1)(oa). The applicant concedes in his evidence to the Tribunal that there are grounds for cancelling his visa.

5. 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

6. 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

7. The applicant submits he came to Australia, as the holder of a SC 482 visa, to work with Eilbeck Cranes Pty Ltd. He has worked for them continuously and continues to do so. He came to work in Australia to broaden his experience and enhance his career. Letters of support from the applicant’s employer from his  Manager, Karthi Perumal, and his supervisor, Shawn Radford, attest to his reliability and commendable work ethic. Both referees state there is a skills shortage and it would be difficult to find another employee with the applicants qualifications and qualities. Mr Radford declares that the cancellation of the applicant’s visa would have an adverse effect on Eilbeck’s business, the mining site communities and for Australian business as his knowledge and value would be lost.      

8. The Tribunal finds the applicant has travelled to, and stayed in, Australia for the purpose of undertaking temporary work. The Tribunal finds the purpose of the applicant’s travel to Australia accords with the applicant’s ongoing activities in Australia.

9. The applicant gave oral evidence that he would be unlikely to be able to find suitable employment easily in Ireland. He has established a strong working history and reputation in Australia. 

10. The Tribunal gives the applicant’s purpose for travel and stay in Australia some weight against exercising the discretion to cancel the applicant’s visa.         

    The extent of compliance with visa conditions

11. The applicant submits there is no history of non-compliance with the conditions of his visa. There was no evidence before the Tribunal to indicate that the applicant has not been compliant with the conditions visa.

12. The Tribunal gives this some weight against exercising the discretion to cancel the applicant’s visa.

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

13. The applicant submitted his qualifications to work in South Africa are no longer current and he would have to redo his apprenticeship to obtain the qualifications. He would therefore be unable to support himself financially immediately, causing him hardship. The applicant told the Tribunal he used all his savings to get to Australia and establish himself and would return to South Africa with nothing. He has no property or tools and would rely on his parents for accommodation and financial support which would cause his parents to suffer financial hardship.   

14. The Tribunal accepts the applicant’s employer would incur some hardship having difficulty finding an employee with the qualifications, skills and knowledge to replace the applicant.         

15. The Tribunal accepts the applicant and his parents would likely suffer some financial hardship if the visa were cancelled.

16. The Tribunal attributes a little weight to this circumstance against exercising the discretion to cancel the visa.      

    Circumstances in which ground of cancellation arose.

17. The applicant does not claim the grounds for cancellation arose because of circumstances beyond his control. The convictions on 16 January and 27 October 2023 arose from a violent incident in December 2022 while he was intoxicated. The applicant assaulted the victim who he considered (and the magistrate acknowledged) had grabbed his then partner. The applicant pleaded guilty to the charges at the first opportunity. The applicant gave the Tribunal transcripts of the sentencing proceedings. The Tribunal observes the Magistrate ordered a spent conviction on 16 January 2023 and an intensive supervision order on 27 October 2023.

18. The convictions on 16 June 2023 relate to three physical assaults on the applicant’s then domestic partner and a charge of breaching a family violence restraining order (FVRO). The breach of the FVRO occurred when the applicant sent an electronic message to the protected person. The magistrate accepted the applicant had previous good character and his risk of reoffending was significantly minimised when the applicant had a better relationship with alcohol. The magistrate was aware the applicant’s visa might be cancelled and commented that cancellation of the applicant’s visa would be a disproportionate result.

19. The applicant submitted he had ceased using alcohol on 29 December 2022 and remained sober. He had undergone counselling of his own volition in January 2023 and attended all counselling sessions with his social worker who provided a report indicating her opinion that does not pose a threat to his previous partner or any other member of the community.

20. The applicant told the Tribunal he has reconnected with some school mates and has a family member living in New South Wales. He plays golf and does physical training. He has always been a drinker but has not had any incidents prior to his relationship with his ex-partner which he considers his downfall. Their relationship was marked by alcohol abuse and he resented his loss of independence, social activity and ceasing riding his motorbike. The applicant provided a corrected Police Clearance from South African authorities detailing his correct birth date and confirming he has no convictions.  

21. The Tribunal considers the applicants convictions are serious matters. It does not appear that the applicant was issued a Formal Advice Letter by the Department, however it should not come as a surprise that breaches of the host countries laws would result in a visa holder being removed from the country. The Tribunal accepts the applicant’s evidence, supported by his counsellors opinion, that he has ceased the use of alcohol and undertakes more physical forms of recreation. The Tribunal acknowledges the magistrates comment that visa cancellation would be a disproportionate outcome, but observes these comments were made prior to the applicants subsequent conviction in October 2023, and attributes no weight to the Magistrates comments as to the appropriateness of cancelling the visa.    

22. The Tribunal attributes the circumstances in which the grounds for cancellation arose some weight towards exercising the discretion to cancel the visa. 

    Past and present behaviour of the visa holder towards the Department

23. The Tribunal accepts that, aside from the offences recorded, there is no adverse information in relation to the applicant’s past and present behaviour towards the Department. The Tribunal gives this factor neutral weight.

    Whether there would be consequential cancellations under s 140

24. There is no evidence before the Tribunal to indicate that there are any persons who would be affected by the consequential cancellations under s.140. The Tribunal gives this factor neutral weight.

    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 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

25. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention although he would have limited opportunities to make visa applications onshore due to the limitations imposed by s 48. The applicant may also be subject to an exclusion period if he were to make an application offshore. The Tribunal has considered these consequences, but it places little weight on this factor against the visa being cancelled.

    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

26. There are no children who would be affected by the cancelation of the visa. The applicant does not have family in Australia. The Tribunal finds that Australia’s international obligations will not be breached as a result of the cancellation.

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

27. The visa in question is a temporary visa.

    CONCLUSION

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

    DECISION

29. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

    P. Maishman
    Member