POKROPPA (Migration)

[2018] AATA 5450

POKROPPA (Migration) [2018] AATA 5450 (18 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SASCHA POKROPPA

CASE NUMBER:  1815896

HOME AFFAIRS REFERENCE(S):           BCC2018/1604420

MEMBER:John Cipolla

DATE:18 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 18 October 2018 at 2:47pm

CATCHWORDS
MIGRATION – cancellation – subclass 457 (Temporary Work (Skilled)) visa – criminal conviction – incident was an aberration and one off – applicant has a unique and rare skill set – Decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994, r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 May 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) regulation 2.43(1)(oa) on the basis that the applicant had been convicted of a criminal offence namely assault occasioning actual bodily harm in the state of New South Wales. 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 18 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife Bernadette Aquino, his step-daughters Aivy Aquino and April Aquino, and Ms Leslie Archer a family friend and support person from the Salvation Army.

4. The applicant was represented in relation to the review by his registered migration agent.

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. 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) r. 2.43(1)(oa). 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?

7. 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.

8. A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal is satisfied a prescribed ground for cancelling the visa applies to the applicant. 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(1)(oa) is relevant. It relevantly states

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

   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))

   Does the ground for cancellation exist?

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant had been convicted of a criminal offence in the state of New South Wales , namely assault occasioning actual bodily harm (imprisonment 7 months; sentence suspended on entering bond to be of good behaviour section 12)

10. The applicant’s criminal record is not in dispute. The Tribunal finds that the applicant has been convicted of an offence against the law of the state of NSW. The applicant held a Subclass 457 temporary visa. The Tribunal is satisfied there are grounds for cancelling his visa under s. 116(1)(g) and r. 2.43(1)(oa). As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

11. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified 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 purpose of a Subclass 457 (Temporary Work (Skilled)) is to enable the visa applicant to work in Australia for a period of 4 years for an Australian business. The evidence before the Tribunal indicates that the applicant has been employed by Manroland Australasia Pty Ltd as a print demonstrator. The evidence indicates that the applicant has a very specific skill set in that he works on heat set and cold set web offset machines for commercial and newspaper customers. A reference from his sponsoring business indicates that he has specialised technical expertise pertaining to the installation, service and troubleshooting of large format high-volume presses. His employer advises that his job requires him to travel both interstate and overseas for urgent work and machine breakdowns. The applicant is seen as being an integral and indispensable part of the business.

    The extent of compliance with visa conditions

13. There are no known instances of non-compliance with visa conditions by the applicant.

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

14. The applicant along with his wife and 2 stepdaughters provided significant and compelling evidence about their circumstances and about the degree of hardship that may be caused to the family unit if the applicant’s visa remains cancelled. It is the hope of the applicant and his wife that they pursue a permanent residence pathway based on the applicant’s skill set.  As noted the applicant because of his unique skill set is seen to be a substantial asset to the Australian business that sponsored him as a print demonstrator. The evidence before the Tribunal indicates that the applicant’s skill set is rare and that he is one of only a small number of people in Australia with a substantial depth of skills in this industry. The applicant stated that prior to relocating to Australia he and his wife spent 10 years working in Riyadh in Saudi Arabia. The evidence indicates that their relocation to Australia to enable the applicant to take up a 457 visa involved considerable expense, indeed the applicant provided evidence that the sale of real estate assets in Saudi Arabia to assist with the cost of relocation was made at a considerable loss.

15. The evidence before the Tribunal indicates that the applicant and his wife have been in a relationship for 10 years and married for 8 years. The evidence indicates that the applicant’s wife’s two step-daughters from a previous relationship remained in the Philippines whilst the applicant and his wife worked in Saudi Arabia. The family have only lived as an integrated family unit since the applicant’s wife’s daughters relocated to Australia in 2016. The evidence indicates that the applicant’s wife has formal qualifications and experience as a specialist nurse working in the area of dermatology and surgery. The applicant’s wife worked as a nurse in Saudi Arabia and hopes to have her qualifications recognised in Australia in the fullness of time. The evidence indicates that the applicant’s 2 stepdaughters have undergraduate qualifications from the Philippines and since relocation to Australia have both been able to find ongoing full-time work and the evidence indicates that they are both valued employees. The evidence of the applicant’s stepdaughters indicates that they wish to undertake tertiary studies in Australia in the future to have their overseas qualifications recognised in Australia in the fields of accounting and childhood education. The applicant made reference to the length of time he has spent in Australia and the fact that he and his family after some initial adjustment have developed strong ties to Australia and hope in the future to permanently reside in this country.

16. The applicant claims that due to his age and stage of life that it would be difficult for himself and his family to relocate and start again and reiterated that the family were settled and happy in Australia and that he was valued by his employer and committed to his job.

    Circumstances in which ground of cancellation arose. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

17. The ground for cancellation arose because the applicant had been convicted of assault occasioning actual bodily harm. The Tribunal does not consider that the conviction, or the applicant’s engagement in the conduct that gave rise to the conviction, were beyond the applicant’s control. The Tribunal does not consider that the ground for cancellation arose due to circumstances beyond the applicant’s control.

18. The evidence before the Tribunal indicates that the applicant has been in a long-term relationship with his wife. Evidence was provided to the Tribunal at review by the applicant’s wife that apart from this incident that occurred on 17 April 2016 there had never been an incidence of violence in their relationship and that the incident was exacerbated by the consumption of alcohol.  The Tribunal notes that the incident was directed at the applicant’s step-daughter Aivy.  The applicant expressed deep remorse for the incident and advised it was totally out of character and an aberration. This assertion was confirmed by the applicant’s wife and step-daughters in their evidence to the Tribunal at the review hearing.

19. The Tribunal received evidence at the review hearing from Ms Lesley Archer.  Ms Archer advised the Tribunal at the review hearing that she met the applicant whilst working as a Court Chaplain at the Parramatta Local Court. She advised that the applicant engaged in a program run by the Salvation Army called Positive Lifestyle, a 10 week program based on self-awareness that helps a person address behavioural issues such as anger, depression, grief and loss. Ms Archer advised that the course assists a person to learn about themselves and address behaviour. She described the applicant as being very honest and very self -aware of his behaviour and describes the incident for which the applicant was convicted as a one-off. Ms Archer described the relationship between the applicant and his wife and stepdaughters as being a close one. Ms Archer described the family as suffering with ‘culture shock’ when they first arrived in Australia and that it took a period of time to adjust to life in Australia. Ms Archer advised that she had great faith and belief in the applicant and his wife and their family unit and believed that the applicant’s visa cancellation should be set aside.

20. Both the applicant and his wife advised that they had resided in a compound in Saudi Arabia during the time that they lived in that country.  The applicant stated that alcohol was not tolerated in Saudi Arabian society. The applicant stated that he rediscovered beer when he came to Australia and on the night that he was charged with the offence in question, he had consumed a considerable amount of homebrewed beer which impeded his judgement. The applicant advised that he did not have a problem with alcohol abuse. Both the applicant and his wife advised that there were significant adjustment problems for them when they relocated to Australia after their lives in Saudi Arabia.

    Past and present conduct of the visa holder towards the department

21. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

22. If the applicant’s visa is cancelled, he would have no visa and would become an unlawful non-citizen unless he is granted another visa. The applicant may be precluded from making another application onshore unless permitted to do so by the Minister.

    Whether there would be consequential cancellations under s.140

23. The applicant’s wife and 2 step-daughters, as secondary visa holders have had their visas cancelled by force of s.140 of the Migration Act. Evidence has been provided that as a consequence they have not been able to travel overseas to visit family members for holidays.

    Whether any international obligations would be breached as a result of the cancellation

24. There is nothing before the Tribunal to indicate that any international obligations would be breached as a consequence of the cancellation of the applicant’s visa.

    Any other relevant matters

25. The applicant outlined his education and work history along with his personal circumstances in his oral evidence to the Tribunal. The applicant also outlined his family history. The evidence clearly indicates that the applicant is both a valued employee and has a unique and rare skill set.  He is also loved and valued by his family and the evidence indicates that the event giving rise to the criminal conviction was totally out of character and is something that the applicant deeply regrets. 

26. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the temporary visa held by the applicant as he had been convicted of a criminal offence in the state of New South Wales.

27. The Tribunal places weight on the fact that the offence resulted in a suspended sentence,   on the basis that the applicant enter into a 7 month good behaviour bond to be of good behaviour, which he duly complied with, and did not breach. The Tribunal notes that the offence occurred in April 2016 some 2 and a half years ago and that the applicant has been of good behaviour since that time.

28. There are no other known instances of non-compliance and the applicant has been cooperative in his dealings with the Department. The Tribunal acknowledges that some degree of hardship would be caused to the applicant, his wife and step-daughters if the applicant’s visa is cancelled.

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

    DECISION

30. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    John Cipolla
    Senior Member