Pelser (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Temporary Skill Shortage (Class GK) visa, Subclass 482, held by the applicant, a citizen of South Africa. The applicant had arrived in Australia in January 2021 and was subsequently convicted of offences in the Perth Magistrates' Court. The delegate's decision to cancel the visa was based on these criminal convictions.

The primary legal issue before the Tribunal was whether the grounds for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(oa) of the Migration Regulations 1994 were made out, and if so, whether the discretion to cancel the visa should be exercised. The applicant conceded that the ground for cancellation, namely conviction of an offence against a law of a State, was established.

The Tribunal reasoned that while the ground for cancellation was made out, it did not mandate cancellation under section 116(3). Therefore, the Tribunal considered the exercise of discretion. It gave weight to the applicant's purpose for travel and stay in Australia, which was to undertake temporary work and enhance his career, and his continuous employment with Eilbeck Cranes Pty Ltd. The Tribunal also noted the applicant's unblemished record of compliance with his visa conditions. Furthermore, the Tribunal considered the significant hardship the applicant would face if his visa were cancelled, including the obsolescence of his South African qualifications, his lack of assets, and the financial burden on his parents. The Tribunal also took into account evidence from his employer highlighting a skills shortage in his sector and the adverse impact his departure would have on the business.

Consequently, the Tribunal concluded that, considering all the circumstances, the decision to cancel the applicant's visa should be set aside. The Tribunal substituted a decision not to cancel the applicant's Subclass 482 visa.