Salter (Migration)

[2023] AATA 1990

Salter (Migration) [2023] AATA 1990 (29 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr George Nicholas Salter

REPRESENTATIVE:  Mr Edward Von-Shoostov Nalbandian

CASE NUMBER:  2208972

HOME AFFAIRS REFERENCE(S):          BCC2021/1213230

MEMBER:James Lambie

DATE:29 June 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

Statement made on 29 June 2023 at 2:19pm

CATCHWORDS

MIGRATION – cancellation – Bridging C (Class WC) visa – Subclass 030 (Bridging C) – applicant convicted of several offences – completing court-ordered community service – emotional and financial hardship – impact on the applicant’s employer – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 189, 198, 499
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 15 June 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 030 (Bridging C) 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 a prescribed ground for cancelling a visa applied to the applicant, namely, the ground prescribed at 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 21 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Andrew McMahon, who is the applicant's employer.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   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). 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.

7. The Tribunal had the following material before it:

   ·Department file BCC2021/1213230;

   ·The applicant’s application for review form dated 20 June 2022;

   ·The applicant’s NSW criminal history provided by the NSW Police Service under summons dated 21 September 2022

   ·A sentencing assessment report by Mr Hardeep Singh for a court hearing on 2 February 2022;

   ·Submissions by the applicant’s representative dated 14 February 2023;

   ·The applicant’s statutory declaration dated 14 February 2023;

   ·A medical certificate from Dr Phillip Orme dated 16 February 2023;

   ·A letter from Mr Andrew McMahon dated 8 February 2023;

   ·An undated email from Mr Samuel Livings;

   ·An unsigned and undated character reference from Mr Landen Lancaster;

   ·An unsigned and undated character reference from Ms Hannah Madden;

   ·Social media posts from justgiving.com;

   ·A screenshot of a blood donation appointment;

   ·Screenshots of three donation receipts from National Breast Cancer;

   ·Screenshots from Pledge for the Planet;

   ·An undated character reference from Ms Lisa Moore;

   ·Post-hearing submissions dated 16 May 2023, incorporating a bundle of photographs and screenshots, and a medical report from Dr Min Yin Huang dated 24 February 2023.

   Does the ground for cancellation exist?

   s 116(1)(g) - prescribed ground

8. 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:

   In the case of a holder of a temporary 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)).

9. The material before the delegate was that the applicant had been convicted of the following offences:

Date	Court	Offence	Sentence
2 February 2022	Downing Centre Local Court	Destroy or damage property <=$2000	Fined $800
Stalk, intimidate, intend to cause fear (domestic violence offence)	Taken into account on Form 1
Assault occasioning actual bodily harm	Community corrections order 18 months, 150 hours community service
1 February 2022	Downing Centre Local Court	Contravene prohibition in AVO	Fined $550
16 June 2020	Downing Centre Local Court	Possess prohibited drug	Fined $220
Possess prohibited drug	Fined $220
25 November 2019	Waverley Local Court	Resist or hinder police officer in the execution of duty	CCO 9 months
Excluded person in vicinity of licensed premises	Fined $150
Intimidate police officer in execution of duty without ABH	CCO 12 months

1. The applicant told the Tribunal that he understood and acknowledged that the grounds for cancellation existed.  The Tribunal sought confirmation that he accepted that the grounds for cancellation existed. The applicant confirmed that it was accepted the grounds for cancellation had been made out.

2. 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

3. In considering whether a Bridging E visa should be cancelled on the basis of the prescribed grounds in reg 2.43(1)(p) or (q) the Tribunal must comply with Direction No.63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q), made under s 499 of the Act. This Direction requires the Tribunal to take into account specified primary and secondary considerations, where relevant, and specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.

4. The primary considerations are:

   ·the Government’s view that the prescribed grounds for cancellation at reg 2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation; and

   ·the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.

5. The secondary considerations are:

   ·the impact of a decision to cancel the visa on the family unit;

   ·the degree of hardship that may be experienced by the visa holder if the visa is cancelled;

   ·the circumstances in which the ground for cancellation arose;

   ·the possible consequences of cancellation; and

   ·any other matter considered relevant.

6. The Direction states that primary considerations should generally be given greater weight than any secondary considerations, one primary consideration may outweigh the other primary consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources. The Tribunal has also 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 and whether the visa holder has a compelling need to travel and remain in Australia

7. Mr Salter first arrived in Australia on 20 March 2019 as the holder of a Working Holiday (subclass 417) visa, and has remained onshore since that time as the holder of a renewed working holiday visa and several bridging A visas.  He applied for a subclass 408 (Temporary Activity) visa on 24 March 2021 and was granted a Bridging C visa on 25 March 2021 while the subclass 408 visa application was considered.  At all material times, therefore, the applicant was the holder of temporary visas.

8. In his response to the NOICC, dated 11 May 2022, Mr Salter advised that he was seeking to complete his court-ordered community service, during which period his passport had been surrendered.  He asked only that he be granted working rights for the duration of his remaining time in Australia owing to his financial difficulties.  The delegate gave some weight against cancellation of the visa on the basis that Mr Salter intended to return to the United Kingdom once his community service had been completed.

9. The Tribunal put this Mr Salter at the hearing. He said that his statement to the department reflected his mindset at the time, but that he now wished to stay in Australia. He said that he now felt he had a future in Australia and could provide benefit to his employer’s business. He said his employer was keen to sponsor him and that he intended to enrol in courses to expand his skillset. He and his employer, Mr McMahon, gave evidence as to the importance of Mr Salter’s skillset to Mr McMahon’s business. I do not consider that this amounts to a compelling need for Mr Salter to remain in Australia, but I have considered that evidence in terms of the hardship that may be occasioned by the cancellation of the visa, below.

10. Mr Salter accepted that he had no family or dependents in Australia.  He told the Tribunal that he had a group of friends to whom he had become very close and were like a family to him and also took the Tribunal to his charitable activities for victims of post-traumatic stress disorder and said that the charities would lose the benefits of his contributions should the visa be cancelled. While the Tribunal accepts that Mr Salter has expressed and evinced an intention to contribute to his social and work-based community, and the community more broadly in Australia, it finds that the activities to which he refers have been conducted only relatively recently. While these activities have some community and commercial benefit, the Tribunal is not satisfied that they amount to a compelling need for the applicant to travel to, or remain in, Australia.

11. I give weight to the fact that, at relevant times, the purpose of Mr Salter’s travel to and stay in Australia has been temporary in nature. The evidence is that the need to remain that he gave to the delegate, namely that he be allowed time to complete his community service and to have his passport returned, has been completed.   

    The extent of compliance with visa conditions

12. The delegate found that there was no information that indicated that Mr Salter had not complied with the condition attached to his current or formerly-held visas.

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

13. In his statutory declaration, Mr Salter states:

    Being a product of the environment and people I have had in my life has led me to put my whole life and future in jeopardy but now with the help of constant therapy and counselling previously over the past 13 months I have taken huge steps and changes in my life and have become a person I truly respect.  I have come to recognize the qualities and values that I have to offer and feel empowered to build a better future for myself where I can share what I have to offer with the people around me.

    Now nearly four years on from when I first left England, my parents have retired and [are] caring after my remaining grandparents who have dementia.

    I have worked incredibly hard since having my working rights reinstated to be able to move forward with the appeal of my visa cancellation/refusal costs and if not successful in proving my now good character and being able to be sponsored by my employer I do not know where my life will lead.

    Financially and mentally my life is in Australia, being a part of the Australian culture, working and contributing to this incredible country.

    The impact this will have not just on my own life but my employer and his young family, I wouldn’t be able to forgive myself for the knock on consequences and financial upset my situation will bring.  The sad reality is that I am 30 years old and have no life back in England now, I have taken this opportunity for granted and allowed my mental health and mindset to put everything at risk.

    I have changed my life for the better and believe this is demonstrated through my good behaviour and healthy life complying will my previous bail conditions, deliberate change in my friendship circles and the company I have kept.

14. Mr Salter submitted photographs and hospital records which he says relate to a suicide attempt in about March 2021, which resulted in a lip laceration requiring five stitches. He said he did not disclose the full cause of the injury when he was treated. He claimed that the hospital staff inferred the reason for the injury but accepted that he was not explicitly assessed or referred for further treatment for suspected self-harm. It was submitted on his behalf that he was not sufficiently administratively competent or financially capable of obtaining further assistance. The Tribunal suggested that the reports from Dr Orme and Ms Moore cover his history in relation to impulsivity and drug and alcohol abuse but do not purport to diagnose a psychological or psychiatric disorder. He accepted this. The report of Dr Min yin Huang, submitted after the hearing, confines itself to an assessment of the lip injury which it describes as being caused by a fall while unconscious.

15. The Tribunal accepts that cancellation of the visa may cause some emotional and financial hardship, at least over the short term, to Mr Salter personally. Mr Salter accepted, when it was put to him by the Tribunal, that there are no family members or other dependents in Australia who would suffer psychological, emotional or financial hardship from the cancellation of the visa.

16. The Tribunal gave consideration to the evidence from Mr Salter and Mr McMahon as to the financial hardship that may be caused to Mr McMahon’s business were the visa to be cancelled.

17. Mr McMahon’s letter of 8 February 2023 is principally in the nature of a character reference but states relevantly that Mr Salter:

    … has now become a valuable asset for me and my business. We are hoping for the opportunity to offer [Mr Salter] full time employment/sponsorship, as he has proven himself to my company.

18. Mr McMahon’s oral evidence to the Tribunal was that he had engaged Mr Salter as a skilled labourer, that he had quite a valuable skillset, and he considered him to be part of the company now. He told the Tribunal that he has a small building company and that Mr Salter  was initially taken on as a labourer but that, because of the applicant’s background in landscaping and as a bricklayer’s labourer, he quite often uses him for drainage jobs and retaining walls. The Tribunal asked Mr McMahon about the applicant’s value to the company. Mr McMahon said that to replace someone with the applicant’s work ethic and skillset would be very difficult to replace, almost impossible. The Tribunal asked what the effect would be on him of the applicant having to return to the United Kingdom. He said that it would be pretty detrimental, because there were a number of jobs lined up which he had quoted on the basis that the applicant would be working for him. He said he did not know what he would be able to do about those jobs. He said that there would be a number of jobs where deposits would have to be returned and this would result in substantial losses. He said that he would not be able to operate on the same basis as he is now but was not willing to quantify the loss.

19. Mr Salter told the Tribunal that he estimated that Mr McMahon might be looking at tens of thousands of dollars in lost jobs if the visa was cancelled.

20. The Tribunal accepts that Mr Salter’s skills and work ethic, albeit over a relatively short period, have value to Mr McMahon’s company. Although the financial effects on Mr McMahon’s business were only generally estimated, the Tribunal has no reason to think those estimates are unreasonable. The Tribunal gives weight to this factor, which is tempered by the fact that it has not been accompanied by any labour market testing and that Mr Salter’s visa status, including its temporary nature, was well-known to Mr McMahon at the relevant times.

    The circumstances in which ground of cancellation arose.

21. The bulk of the applicant’s submissions and evidence is concerned with the circumstances of his offending and the actions he has taken that he says establish that he is a reformed character. In addition to the material submitted to the Tribunal, I have had regard to the character references prepared for his court hearings which are contained on the department’s file.

22. Mr Salter told the Tribunal that he came from Taunton in England, where he had been working as a landscaper. He said that he had had only minor interactions with the police when he was younger and that his English criminal history was clear. He said that he first arrived in Australia on a working holiday visa and worked on a banana plantation in Innisfail.  Three and a half months later he moved to Sydney. After some time, he obtained gardening work. The Tribunal suggested that he was arrested twice in September 2019. He said that was correct. He said that he had been excluded from the Coogee Bay Hotel with friends from the banana farm and there had been an altercation with security. In the course of that, he had an argument with police.

23. The Tribunal suggested that the applicant’s record then showed some convictions in respect of possession of dangerous drugs. He said that he was stopped by police with a sniffer dog in Kings Cross in about March 2020, which was during the COVID lockdown. He admitted to possession of a small quantity of cannabis and that traces of MDMA were also detected.

24. The Tribunal took Mr Salter to a number of convictions starting from about October 2020. He told the Tribunal that he had been issued with a domestic violence order on about 20 February 2020. He had been in the relevant relationship for about four or five months. He said that the relationship had been tempestuous and marked by the consumption of alcohol and other substances, and that both he and the victim had some mental and other health issues. He said that the victim had overstated the violence and that he had not assisted his case in what he had told the police, but that he acknowledged that his conduct was not acceptable. He said that he had admitted two instances to the police but that several other charges had been dropped. The Tribunal suggested that the record of convictions was still considerable in light of the short period of time Mr Salter had been in Australia. He accepted that this was the case.

25. In the post-hearing submissions of 16 May 2023, a more detailed narrative of Mr Salter’s offending was provided. It is to some extent self-serving, seeking to minimise his culpability in respect of the domestic violence offences in particular. However, the Tribunal accepts that Mr Salter takes responsibility for his actions. 

26. The Tribunal has given careful consideration to all of the character references, to the records of Mr Salter’s charitable activities, and to Mr Salter’s genuine expression of remorse. It has given particular attention to Ms Moore’s assessment that Mr Salter “has made outstanding progress having emphatically and permanently walked away from drugs and alcohol.”  However, having had regard to all of the material before it, the Tribunal considers Mr Salter’s record of offending to be a serious one in all of the circumstances of the case.

1. In respect of the circumstances in which the grounds for cancellation arose, the Tribunal gives the most significant weight to the facts that:

   (a)Mr Salter was convicted of three offences, which included domestic violence, on 2 February 2022, resulting in a significant penalty of 150 hours of community service and a community corrections order of 18 months;  and

   (b)He was convicted of criminal offences in June 2020 and November 2019, on any of which his visa could have been cancelled at those times and, in fact, consideration was given to cancellation.

   The past and present behaviour of the visa holder towards the Department

2. The delegate’s decision records that there is no information to indicate that Mr Salter has been uncooperative with the department or with departmental staff. A small degree of weight is given to this in favour of the application.

   Whether there would be consequential cancellations under s 140

3. Mr Salter has acknowledged that there is no one in Australia whose visa may be cancelled as a consequence of the cancellation of his visa.  No weight is accorded to this factor.

   Any mandatory legal consequences of cancellation

4. If the visa were to be cancelled, Mr Salter would become an unlawful non-citizen and could become liable to detention under section 189 and removal under section 198 of the Act if he does not depart voluntarily. He may also be unable to meet the PIC 4013 criterion and therefore unable to be granted a further temporary visa for a period of three years from the date of visa cancellation. In addition, his eligibility to apply for further visas in Australia may be limited by section 48 of the Act.

5. I have taken these matters into account, particularly as Mr Salter and Mr McMahon have expressed their wish that Mr McMahon sponsor Mr Salter for further work in Australia, and Mr Salter has also expressed a wish to pursue permanent residency in Australia. I note, however, that Mr Salter has settled upon this intention only relatively. I have given the mandatory consequences of cancellation some weight in his favour.

   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

6. Mr Salter is a citizen of the United Kingdom and has raised no claims of any fear of returning to his home country. In these circumstances, I am satisfied that cancellation of the visa would not lead to him being removed from Australia in breach of any non-refoulement obligations that may arise under the relevant international instruments.

7. Mr Salter has advised that he has no children or other dependents in Australia. Accordingly, I am satisfied that his removal from Australia would not breach any obligations under the Convention on the Rights of the Child.

8. There is no information before the Tribunal to suggest that Mr Salter’s political and civil rights, or any other rights arising under any other international instrument would be affected by cancellation of the visa.

   Overall assessment

9. The Tribunal has given careful consideration to all of the matters before it. In favour of Mr Salter’s application and the submissions made on his behalf, it gives the greatest weight to Mr Salter’s genuine contrition and the efforts he has made to turn his life around. The Tribunal notes, however, that these are matters that he has felt necessary as a result of his offending behaviour. The Tribunal has also given weight to Mr Salter’s intention to contribute to Mr McMahon’s business and to the possible effects of cancellation on that business, at least in the short term. However, in circumstances where the interests of children and the integrity of the family unit are not affected, the Tribunal gives the greatest weight to the offending, as summarised in paragraphs 9 and 36 above. 

10. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

11. The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

    James Lambie
    Senior Member