Sekhon (Migration)

[2018] AATA 275

Sekhon (Migration) [2018] AATA 275 (17 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurmukh Singh Sekhon

CASE NUMBER:  1730631

DIBP REFERENCE(S):  BCC2017/4028866

MEMBER:John Cipolla

DATE:17 January 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 17 January 2018 at 12:38pm

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Previous criminal conviction – No further adverse interaction with criminal justice system – Complied with previous visa conditions – Disclosure of criminal conviction – Wife’s pregnancy and health condition 

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, r 2.43, Schedule 2

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 4 December 2017 made by a delegate of the Minister for Immigration 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) on the basis that the applicant had been convicted of a criminal offence of Indecent Assault on 24 April 2014 by the Heidelberg Magistrates Court in Victoria. 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 via telephone conferencing facilities before the Tribunal on 15 January 2018 to give evidence and present arguments.

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

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). 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. 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.

   Evidence in Departmental File

8. The evidence on the Departmental file indicates that the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa on 9 November 2017. The NOICC indicates that the applicant was granted a Subclass 457 visa on 22 July 2015 as a member of the family unit of his spouse, Jasvir Kaur Brar. The NOICC indicates that on 25 September 2017 the applicant re-entered Australia as the holder of a Subclass 457 visa. The NOICC indicates that upon the applicant’s arrival in Australia he completed an incoming passenger card dated 25 September 2017 which invited the applicant to answer the question as to whether he had any convictions in any country. The applicant answered yes to this question. As a result of the applicant’s answer on the incoming passenger card the Department of Immigration initiated integrity checks which revealed that the applicant had been charged and convicted with the offence of Indecent Assault on 24 April 2013. The NOICC noted that as a result, grounds for the cancellation of the applicant’s Subclass 457 visa existed under section 116(1)(g) of the Migration Act using the prescribed ground at Regulation 2.43(1)(oa).

9. In response to the NOICC the applicant provided a statutory declaration dated 14 November 2017. In the statutory declaration the applicant notes that he travelled to Australia in October 2008 as the holder of a Student visa and that he was currently the holder of a Subclass 457 visa with his wife holding the primary Subclass 457 visa. The applicant noted that in the 9 years that he had been in Australia he had always complied with visa conditions and followed all rules and regulations in Australia. The applicant stated that he was charged with Indecent Assault on the 22 October 2012 for which he was convicted and given a community correction order for 24 months. The applicant explained that he had been married to his wife for the past 5 years and that she was currently pregnant and expecting a child on 26 January 2018. The applicant stated that he had no other family members who could take care of his wife and that he could not think of leaving his wife alone in Australia and the due to her work commitments she had to stay in Australia. The applicant stated that since his wife received an email pertaining to the potential cancellation of the applicant’s visa that his wife’s health and indirectly the health of his unborn child had suffered substantially. Medical evidence corroborative of this was tendered.

10. With regard to the criminal conviction the applicant claimed that he was a victim in the wrong place and wrong time. The applicant stated that on the day of the offence he had gone to a friend’s place for drinks. The applicant claims that his friend called a friend to have sex with her and when they finished having sex they went outside for a smoke. The applicant claims that he went into the bedroom to relax on the bed and after a few minutes the girl entered the room, removed the blanket and wanted the applicant to leave the room and the applicant pushed her and asked the girl to leave him alone. The applicant claims that the girl became angry and charged him with Indecent Assault. The applicant claims that the solicitor he engaged after the charge advised him that if he wanted to fight the case that he could end up with 6 months imprisonment if he was found guilty, or that he could do 150 hours of community service to finish the case if he pleaded guilty. The applicant claims he discussed the prospective outcomes with his wife and decided not to fight the case or spend money in the courts as solicitor and barrister fees were expensive. The applicant stated that he accepted and indeed completed the community work that he was required to do.  The applicant stated that he did not realise the consequences of pleading guilty, otherwise the applicant claims he would have fought the case to prove his innocence. The applicant stated that when his wife applied for her Subclass 457 visa they attached the requisite Form 80 to the visa application and that he disclosed the incident for which he had been convicted. The applicant stated that he had worked as Taxi Driver since October 2012 and dealt with many types of customers including drunk female passengers and that he had never had a single complaint whilst driving a taxi. The applicant stated that he had a very good reputation in the community.

11. The applicant attached a number of references from individuals attesting to his good character and a letter from the secretary of the Sri Guru Singh Sabha Cultural Society in Victoria dated 11 November 2017 attesting to the applicant’s good character.

12. The Departmental delegate considered the applicant’s response to the NOICC and concluded that the grounds for cancellation existed as the applicant had been convicted of a criminal offence in Australia. The delegate then went on to consider whether or not the visa should be cancelled having regard to the applicant’s response to the NOICC and after having regard to the relevant considerations proceeded to cancel the applicant’s visa.

13. It should be noted that a copy of the police facts sheet was not obtained by the Departmental delegate prior to the delegate making the cancellation decision.  A Tribunal registry officer made ongoing attempts through the Departmental delegate to try to obtain the police facts sheet and or the brief of evidence pertaining to the applicant’s criminal conviction.  As at 15 January 2018 the Departmental delegate advised that his attempts to obtain this information had been unsuccessful as the police informant pertaining to this matter was away on extended leave until March 2018.  As a consequence the Tribunal was unable to obtain a copy of the police facts sheet or the brief of evidence pertaining to the applicant’s criminal conviction during the conduct of the review.

    Evidence Provided at Merits Review

14. The applicant lodged an application for review with the Tribunal on 5 December 2017.  A range of evidence has been submitted to the Tribunal at review stage which includes the following. 

15. An email dated 8 December 2017 from the applicant’s representative indicating that the applicant attended Departmental status resolution in Melbourne on that day to apply for a Bridging E visa and was subsequently immigration detained. The submission noted that the applicant’s wife at that time was heavily pregnant and due to give birth in January 2018 and that she had health-related issues from the pregnancy. The submission also notes that the applicant had a single criminal conviction for which he received a community service order which he duly completed and that the applicant had been living in the community for 5 years since the offence had occurred without incident and had at every stage disclosed the existence of the conviction when required to do so. This submission noted that the applicant did not pose a risk to the Australian community.

16. Also provided was a submission from the applicant’s representative dated 14 December 2017. The submission addresses the need for the matter to be given priority by the Tribunal. The submission makes reference to the applicant’s visa history and family circumstances. The submission also makes reference to the applicant’s conviction for Indecent Assault on 24 April 2013 where the applicant was required to complete a mandatory sex offender programme as part of the court order which he duly completed. The submission notes that the applicant’s wife worked as a Salon Manager in Australia and had intended to work until 22 December 2017 before taking maternity leave in preparation for the upcoming birth of her first child in January 2018.

17. Also provided were references attesting to the character of the applicant and documents that had been provided to the Department at the time of the Departments consideration of cancelling the applicant Subclass 457 visa.

18. The Tribunal also received a submission dated 12 January 2018. The Tribunal has duly considered this submission which addresses the grounds for cancellation in this review and the exercise of discretion, with the submission addressing each of the relevant discretionary considerations.

19. On the day of the review hearing the Tribunal received a further submission from the representative.  The submission makes reference to some inconsistencies in the delegate’s cancellation decision that in the representatives opinion appears to suggest that the delegate had a pre-determined view irrespective of the evidence submitted by the applicant.  The submission also included a copy of a decision of the Taxi Services Commission of Victoria dated 12 November 2013 which indicates that as a result of the applicants conviction in April 2013 he would be issued with a reprimand by the Commission and if any further matters of concern came to the attention of the Commission, disciplinary action may be taken.

20. The Tribunal also received a post hearing submission from the applicant’s representative dated 15 January 2018.  Attached to the submission was a copy of the employment contract between the applicant’s wife and her employer ‘Just Threading’.  The employment contract indicates that there is no provision for paid maternity leave but there is provision for paid parental leave and this parental leave is governed by the conditions pertaining to National Employment Standards.  Also provided was a letter from the applicant’s wife’s employer a ‘Just Threading’ provided by Mandeep Singh Brar from the business.  The letter outlines the applicant’s wife’s length of employment with the business (since September 2015), her value to the business as a Salon Manager and the letter notes that the applicant’s wife is one of the businesses best employees.  The letter also indicates that the business wishes to sponsor the applicant’s wife for permanent residence under the Subclass 186 visa stream.  The letter indicates that the applicant’s wife is not entitled to maternity leave and that the business is in the process of negotiating a return to work time frame of between 2-3 months after the birth of her child.  The letter indicates that the ongoing detention of the applicant and the ongoing cancellation of his Subclass 457 visa will have a very serious effect on the applicant’s wife as he will be unable to provide his wife and child with financial support.  The letter states that if ‘Just Threading’ was to lose the applicant’s wife’s employment, it would have a detrimental impact on the business as the applicant’s wife made a substantial contribution to the running of the business in her role.

    Review Hearing

21. The Tribunal conducted a review hearing on 15 January 2018. At the outset of the review hearing the Tribunal made reference to the administrative processes that culminated in the cancellation of the applicant’s Subclass 457 visa in December 2017, namely the issuing of the NOICC, the consideration of evidence provided by the applicant in response to the NOICC, and the consideration by the delegate of whether or not the visa should be cancelled. The Tribunal explained in detail the merits review process and the evidence that the Tribunal would have regard to before proceeding to decision. The Tribunal indicated that based on the evidence before it that it appeared that a ground for cancellation of the applicants visa under s.116(1)(g) of the Migration Act existed having regard to the prescribed circumstances in r.2.43 (1)(oa) as the applicant had been convicted of the offence of Indecent Assault on 24 April 2013. The Tribunal noted that if the prescribed grounds for cancellation did exist the Tribunal was required to determine whether or not the applicants visa should be cancelled having regard to the relevant considerations pertaining to a visa cancellation under this ground.

22. Given that the hearing was being conducted by telephone the Tribunal sought confirmation by the applicant that he understood the Tribunal and had no problems communicating by telephone, and the applicant confirmed that he understood the Tribunal clearly and had no problems communicating by telephone.  The applicant’s representative confirmed that he had a clear telephone connection and could hear both the Tribunal and the applicant.

23. The applicant provided the Tribunal with his personal details advising that he was born on 12 January 1989. The Tribunal asked the applicant when he first came to Australia and he advised on 3 October 2008 as the holder of a Subclass 573 visa. The Tribunal noted that a Subclass 573 visa enables an applicant to study at tertiary level in Australia, namely at university level and above. The Tribunal asked the applicant about his study history in Australia. The applicant stated that when he first arrived in Australia he undertook an ELICOS course which was a course testing his English language skills. The applicant stated the course was of 2 months duration. The applicant stated that he scored 5.0 in each area of testing which was not enough to study at tertiary level so the applicant engaged in a Diploma of Hospitality at the Technical Institute of Victoria. The applicant stated that he commenced this course in approximately February 2009 and completed the course in approximately May 2011. The applicant stated that the course included initial studies at Certificate level followed by studies Diploma level and that the duration of the course was for a period of 2 years. The applicant advised that he satisfactorily completed these courses.

24. The Tribunal asked the applicant whether he pursued a Diploma of Hospitality on the basis that this could place the applicant on a pathway to permanent residence via the skilled visa programme in operation at that time. The applicant stated that he pursued this line of study with a long-term attempt to obtain a skilled visa. The Tribunal asked the applicant whether he completed any studies beyond the Diploma of Hospitality and the applicant advised that he completed a Certificate IV in Business followed by Diploma of Business at Berkely College in Victoria and that these courses were of 2 years duration.  The applicant advised that he successfully completed with both of these courses.

25. The Tribunal asked the applicant when his last student visa expired and the applicant advised in approximately March 2013.

26. The Tribunal asked the applicant when he married his wife and he advised in March 2013 in a ceremony in India and that the marriage was registered in Victoria on 15 May 2013.

27. The Tribunal asked the applicant about his wife’s immigration history. The Tribunal asked the applicant when his wife first came to Australia from India and he advised in April 2009 as the holder of a Student visa. He advised that his wife held Student visas until July 2015 at which time she was granted a Subclass 457 Long Stay Business visa. He advised that his wife undertook a number of courses in Australia and that she completed 75% of a Bachelor of Business course and that she only has 3 to 4 subjects in that degree to complete it. The applicant advised that his wife intends to complete that degree in the future. The Tribunal asked the applicant whether he ever made an application for a skilled visa and the applicant stated that after he met his wife he became a dependent family member of his wife under the umbrella of her student visa and that after she obtained a Subclass 457 visa, as a dependent family member under that visa.

28. The Tribunal asked the applicant what he was doing for work during the time that he studied in Australia. The applicant stated that during a vacation period whilst he was a student he undertook a certificate course in personal care and worked in aged care facilities after registering with an agency who would place him for work in a number of nursing homes. The applicant stated that he undertook this work whilst complying with the conditions attached to his student visa between January 2009 and April 2013. The Tribunal asked the applicant what type of work he did after this and he advised that he became a Taxi Driver. The applicant stated that he had a cousin who had a taxi in Melbourne and that he started doing some casual driving from October 2012 and then in October 2016 the applicant obtained his own taxi and the applicant advised that he was driving taxis up until the time of his detention in December 2017.

29. The Tribunal asked the applicant what his wife did for work and he advised that she worked for a business in Keys Borough in Victoria called ‘Just Threading’.  The applicant stated that the business was a salon undertaking hairdressing and eyebrow threading. The applicant stated that his wife commenced work as a Salon Manager in the business in September 2015 and that her Subclass 457 visa was valid until July 2019. The Tribunal asked the applicant whether he was aware of any maternity leave that his wife was entitled to under the terms of her employment contract. The applicant stated that his wife had been on maternity leave since late December 2017 and that he was unsure of what her maternity leave provisions were. The applicant’s representative advised the Tribunal that he would follow this up and provide information around the applicant’s wife’s maternity leave and also the benefit of the applicant’s wife to the nominating business in terms of her ongoing retention as an employee.

1. The Tribunal asked the applicant what he and his wife’s intentions were with regard to a future application for permanent residency. The applicant stated that his wife intended to apply for permanent residency, transitioning from the Subclass 457 visa to a permanent visa. The applicant stated that whilst his wife was on leave after the birth of their child who is expected in January 2018, that as he, as the holder of a taxi licence, will be able to provide ongoing financial support to his wife and child.

2. The Tribunal asked the applicant whether his criminal conviction had impacted upon his ability to hold a taxi licence in Victoria. The applicant stated that he contacted the Taxis Association of Victoria at the time of his conviction in April 2013 to disclose the conviction and that he had engaged a Barrister to make submissions on his behalf to the Commission about the ongoing retention of his taxi licence in the face of the criminal conviction. The applicant advised that he was reprimanded by the Taxi Services Commission with regard to the offence but has been able to retain his taxi licence.

3. The Tribunal asked the applicant whether he engaged Legal Aid or was eligible to engage Legal Aid at the time that he was charged with the indecent assault offence. The applicant stated that when he attended the first court hearing he spoke to a Legal Aid lawyer and was advised that he was not eligible for Legal Aid. The applicant stated that he then engaged a private lawyer and a barrister who advised him that if he lost his court case he faced the prospect of a short period of imprisonment, however if he pleaded guilty he would more likely get a community service order. The applicant stated that as a consequence he entered a guilty plea, which now in retrospect he wished he had not and the applicant stated that he wished that he had of defended the charge.

4. The Tribunal noted that it did not have a police facts sheet before it and that there was no police facts sheet pertaining to the Indecent Assault charge on the Departmental file. The applicant stated that he was happy to provide a recitation of the facts as he saw them. The applicant stated that at 9pm on the night in question he went to a friend’s house. He advised that his friend’s wife was in India and that his friend had engaged with a woman on the Internet and he had invited her over for dinner. He advised that after dinner his friend and this woman went into a bedroom to engage in sexual intercourse. The applicant stated that when they came out of the room that was around 11:30pm to midnight that he was tired and he went into the room to lie down. He advised about 10 to 15 minutes later the woman came back to the room and the applicant stated that he was almost asleep. The applicant stated that the woman removed the applicant’s blanket and that he pushed her in the breast area and she started screaming. The applicant stated that he tried to leave the room and pushed the woman out of the way. The Tribunal asked the applicant whether the police were called on the evening in question and he advised that they were not and that the police came to him the next afternoon. The Tribunal asked the applicant whether he was married at the time of this incident and he advised that he was not at that time.

5. The Tribunal asked the applicant whether there was anything more that he wanted to say before the hearing concluded. The applicant stated that his wife had been under extreme stress since the cancellation of his visa and this had an adverse impact on her pregnancy. He advised that his wife was currently suffering with gestational diabetes as a result of her pregnancy and that it was looking like the baby would have to be induced around 18 January 2018. He advised an additional complication was the fact that his wife’s placenta was bigger than normal. The applicant stated that he was very concerned that there were no immediate family members in Australia and that his wife needed his emotional and physical support during this difficult time.  

6. The Tribunal asked the applicant’s representative whether there were any additional comments that he wanted to make. The applicant’s representative advised that the applicant was convicted of the criminal offence and had to undertake a community service order. He advised that the applicant complied with the conditions of the community service order over the 24 months that the order was in place. The applicant also had to attend a mandatory sex offenders programme that is imposed on any person in Victoria charged and convicted of indecent assault. The applicant’s representative stated that the applicant was not added to the sex offenders register. The applicant’s representative stated that from his knowledge of Victorian criminal law with regard to the offence of Indecent Assault that the applicant’s sentencing indicated that the offence was at the lower end of the scale. The applicant’s representative noted that the applicant had no criminal antecedents in either India or Australia prior to the events of October 2012 leading to the conviction of April 2013. The applicant’s representative stated that since April 2013, a period of almost 5 years the applicant had not engaged in any criminal conduct. The applicant’s representative stated that the applicant had always been transparent in his dealings with the Department of Immigration noting in a Form 80 accompanying his wife’s 457 visa application that he had been convicted of a criminal offence and also noting this information on incoming passenger cards when he was returning to Australia from India.

7. The evidence before the Tribunal indicates that the applicant was convicted of a criminal offence, Indecent Assault in the state of Victoria on 24 April 2013.

8. 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 power to cancel the visa should be exercised.

   Consideration of discretion

9. 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’.

10. The Departmental guidelines pertaining to the exercise of discretion cover such matters as:

    ·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

    ·the extent of compliance with visa conditions

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

    ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. 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

    ·past and present conduct of the visa holder towards the Department

    ·if breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

    ·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

    ·whether there would be consequential cancellations under s.140

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

    ·any other relevant matters.

11. The Tribunal has had regard to the above considerations. The applicant entered Australia as a student visa holder in 2008.  The evidence before the Tribunal indicates that the applicant completed an ELICOS course when he first arrived in Australia. The applicant then completed a Certificate III in Hospitality followed by a Diploma of Hospitality and had hoped to utilise this study history to segue to permanent residence via the skilled pathway.  The evidence indicates that the applicant also completed a Certificate IV in Business followed by a Diploma of Management.  The evidence before the Tribunal indicates that the applicant made satisfactory academic progress in the courses that he commenced. The evidence indicates that upon completing studies in 2013 the applicant became a dependent member of the family unit of his wife under the umbrella of her previous student visa.  The evidence indicates that the applicant’s wife was issued with a Subclass 457 Long Stay Business visa in July 2015 valid to July 2019 and that the applicant is a secondary visa holder under the umbrella of his wife’s Subclass 457 visa.

12. There is no evidence that the applicant has not complied with visa conditions of visas held since his arrival in Australia.

13. The evidence before the Tribunal indicates that the applicant’s wife currently holds a Subclass 457 visa, a visa that is valid until July 2019. The evidence of the applicant at hearing, confirmed by the applicant’s legal representative, indicates that the applicant’s wife intends pursuing a permanent residence application transitioning from her current 457 visa. The evidence indicates that the applicant’s wife is currently in the final stages of pregnancy. The evidence before the Tribunal indicates that the applicant’s wife’s pregnancy has not been straightforward and that the applicant’s wife is suffering with gestational diabetes.  The evidence before the Tribunal indicates that as a result of the applicant’s wife’s complex pregnancy that she is likely to be induced into labour on 18 January 2018. The evidence before the Tribunal indicates that the applicant has been in immigration detention for the past month and that this has had a profound impact on the applicant’s wife and on the applicant predominantly due to the difficulties that the applicant’s wife has experienced in the latter stages of her pregnancy. The evidence before the Tribunal indicates that the applicant has been providing supplementary financial support to his wife. The evidence indicates that the applicant’s wife has now ceased work while she gives birth to their child in January 2018. The evidence indicates that if the applicant’s visa remains cancelled that his wife and newborn child potentially will suffer significant financial hardship. 

14. The Tribunal has had regard to the circumstances in which the ground for cancellation arose. The evidence before the Tribunal indicates that the applicant was charged with a criminal offence in October 2012 and that he was convicted of the offence of Indecent Assault in April 2013 in Victoria. The evidence before the Tribunal indicates that the applicant, as a result of the conviction, had to undertake a community corrections order for a period of 24 months which required the applicant to perform 150 hours of community work in the first 12 months of the order and to be supervised for a total period of 24 months. A community corrections order allows a person to serve their sentence in the community.  The applicant was also required to undergo a Sex Offender Programme as he had been charged with the offence of Indecent Assault. The evidence indicates that the applicant completed the community corrections order in April 2015.  A letter confirming this was provided to the Department of Immigration from the Department of Justice in Victoria.  The evidence before the Tribunal indicates that prior to the April 2013 conviction that the applicant had no criminal antecedents in either India or Australia. The evidence before the Tribunal indicates that since the conviction, a period of almost 5 years, the applicant has not engaged in any further offending and the applicant has had no adverse interaction with the criminal justice system in Australia. As has been noted in this decision record a large number of character references were provided to both the Department and to the Tribunal at review pertaining to the applicant’s character and work ethic. 

15. With regard to the applicant’s past and present behaviour towards the Department of Immigration the evidence before the Tribunal indicates that the applicant has been honest in his dealings with the Department of Immigration. The evidence indicates that when the applicant has exited Australia as the holder of a Bridging B visa that upon returning to Australia he has honestly completed incoming passenger cards noting the existence of the criminal offence. In addition to this when the applicant’s wife made an application for a Subclass 457 Long Stay Business visa, the applicant in completing the associated Form 80 disclosed that he had a criminal conviction. The evidence before the Tribunal indicates that the applicant has not failed to disclose the existence of the criminal conviction that he acquired in April 2013. There is no evidence before the Tribunal to indicate that the applicant has been dishonest with regards to his past and present behaviour towards the Department of Immigration.

16. The evidence before the Tribunal indicates that the legal consequences of the applicant’s visa remaining cancelled would be that the applicant could continue to be detained in immigration detention or that the applicant could be removed from Australia as he would no longer hold a valid visa.

17. There is no information before the Tribunal to indicate that the cancellation of the applicant’s visa would breach any of Australia’s international obligations including Australia’s non-refoulement obligations.

18. The evidence before the Tribunal when cumulatively considered indicates the following.  The applicant arrived in Australia in October 2008 as the holder of a student visa and that during the period he held student visas he complied with visa conditions and made satisfactory academic progress.

19. The evidence before the Tribunal indicates that the applicant was charged with an offence of Indecent Assault in October 2012 and that he pleaded guilty to the offence and was issued with a 24 month community corrections order.  The Tribunal did not have a copy of the police facts sheet or brief of evidence before it, however the Tribunal notes that the applicant did not receive a custodial sentence and was able to serve his sentence in the community with oversight and that he satisfactorily completed this including attendance in a sex offenders programme. 

20. The evidence indicates that in over 5 years since the applicant was charged with the offence in October 2012 that he has not had any adverse interaction with the criminal justice system in Australia

21. The evidence indicates that the applicant has held a taxi licence in Victoria for a number of years and that upon being convicted of a criminal offence in April 2013 he voluntarily contacted the Taxi Services Commission of Victoria to advise them of this.  As a consequence he was given a reprimand by the Commission that if he was to engage in any adverse behaviour the Commission would take disciplinary action against the applicant. The applicant as a consequence still holds a taxi licence.

22. The evidence indicates that the applicant has been married to his wife since March 2013 after they engaged in a religious ceremony in India and that the marriage was registered in Victoria in May 2013.  Thus the applicant and his wife have been married now for almost 5 years and the applicant’s wife has provided evidence to both the Department and Tribunal that the charge in October 2012 was totally out of character and that she did not believe the applicant would re-offend.  This view is corroborated by the fact that the applicant has not engaged in any re-offending since the charge of October 2012.

23. The evidence further indicates that the applicant’s wife is about to give birth to their first child in January 2018.

24. The evidence before the Tribunal indicates that when the applicant’s wife applied for a Subclass 457 visa that the applicant disclosed his criminal conviction in the form 80 required to be completed with that application.  The evidence further indicates that when the applicant travelled outside Australia and returned from overseas he correctly completed his incoming passenger cards and disclosed the criminal conviction. 

25. The Tribunal has given careful consideration to all of the evidence before it.  The Tribunal finds when all of the evidence is considered that the visa should not be cancelled. 

26. The Tribunal notes that the offence and associated criminal conviction are factors that could lead to weight being given to the cancellation of the applicant’s visa. However outweighing this is the fact that the applicant has lawfully been in Australia since October 2008.  The applicant whilst he held a student visa complied with the conditions of those visas and he made satisfactory academic progress and completed a number of courses.  The applicant continued to maintain his lawful status under the umbrella of his wife’s student visa and more recently her Subclass 457 visa as a member of her family unit.  The applicant prior to the cancellation of his visa held a Subclass 457 visa (a substantive visa) which is valid until July 2019.  The applicant was charged with a criminal offence of Indecent Assault in October 2012 for which he pleaded guilty in April 2013 and he served a 2 year community corrections order all the terms of which he successfully completed.  The applicant married his wife in March 2013 and has now been in a marital relationship with her for almost 5 years and the applicant’s wife is about to give birth to their first child.  The applicant, who holds a taxi licence in Victoria disclosed the criminal conviction to the Taxi Services Commission of Victoria at the time of the conviction in April 2013 and as a result he was reprimanded and advised that if he committed any further offences or failed to comply with the conditions of his taxi driver’s accreditation he would be the subject of disciplinary action. His taxi licence was not cancelled.  This decision was made in November 2013 and the applicant has continued to drive a taxi since then without incident.  The applicant’s wife is not covered by maternity leave provisions in her contract of employment and will be solely reliant on her husband to financially support her and their child.  If the applicant’s visa remained cancelled the applicant’s wife and child would suffer significant financial hardship. In addition to this the applicant’s wife has had a difficult pregnancy suffering with gestational diabetes and the ongoing cancellation of the applicant’s visa will inhibit his ability to provide his wife with emotional and physical support after the birth of their first child.  The applicant has been forthright and honest in his dealings with the Department.  When he completed the Form 80 as part of his wife’s 457 visa application, he disclosed his criminal conviction and when he returned to Australia he disclosed it on his incoming passenger cards.  Indeed it is this disclosure on an oncoming passenger card on 25 September 2017 that brought the conviction to the attention of the Department and grounded the NOICC dated 9 November 2017, close to 5 years after the conviction, with the applicant living lawfully in the community during that intervening period without incident.

    CONCLUSION

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

    DECISION

28. 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