POKROPPA (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa of the applicant, Mr. Pokroppa. The dispute arose from the applicant's criminal conviction for assault occasioning actual bodily harm in New South Wales. The Minister had cancelled the visa under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(oa) of the Migration Regulations 1994, which permit cancellation if the holder has been convicted of an offence.

The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa. The Tribunal found that the applicant's criminal conviction was not in dispute and that the criteria under section 116(1)(g) and regulation 2.43(1)(oa) were met, establishing a ground for cancellation. However, this ground did not mandate cancellation under section 116(3) of the Act, allowing the Tribunal to consider the exercise of discretion.

In considering its discretion, the Tribunal had regard to various circumstances, including the purpose of the applicant's stay, his compliance with visa conditions, and the hardship that cancellation would cause. The Tribunal noted the applicant's highly specialised and rare skill set as a print demonstrator, his integral role in his sponsoring business, and the significant financial and personal costs associated with his relocation to Australia. Furthermore, the Tribunal considered the compelling evidence of hardship to the applicant's family unit, including his wife and stepdaughters, and their hope to pursue a permanent residency pathway. The Tribunal concluded that the criminal incident was an aberration and a one-off event.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel his Subclass 457 visa.