Sekhon (Migration)

This matter concerned an appeal by Mr. Sekhon against the potential cancellation of his Subclass 457 (Temporary Work (Skilled)) visa. The Department of Immigration had issued a Notice of Intention to Consider Cancellation (NOICC) based on a previous criminal conviction for Indecent Assault in 2013. Mr. Sekhon had disclosed this conviction upon re-entering Australia in September 2017. The decision was made by John Cipolla, Senior Member of the Tribunal.

The primary legal issue before the Tribunal was whether the Minister's power to cancel Mr. Sekhon's visa under section 116(1)(g) of the Migration Act 1958, by reference to regulation 2.43(1)(oa) of the Migration Regulations 1994, should be exercised. This involved determining if the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised in Mr. Sekhon's favour.

The Tribunal found that the ground for cancellation under section 116(1)(g) was established due to the applicant's prior criminal conviction. However, this ground did not mandate cancellation. The Tribunal then considered its discretion, referencing departmental guidelines which include factors such as the purpose of the visa holder's stay, compliance with visa conditions, potential hardship, and the circumstances surrounding the ground for cancellation. The Tribunal noted Mr. Sekhon's long history of compliance with visa conditions in Australia since 2008, his pursuit of educational qualifications, his role as a dependent on his wife's Subclass 457 visa, and the significant emotional and psychological distress that cancellation would cause his pregnant wife, supported by medical evidence. The Tribunal also considered Mr. Sekhon's explanation for his plea of guilty to the offence, which he stated was based on legal advice regarding the cost and potential consequences of contesting the charge, rather than an admission of guilt.

Ultimately, the Tribunal decided not to cancel Mr. Sekhon's visa. It set aside the decision under review and substituted a decision to not cancel his Subclass 457 visa, taking into account the totality of the circumstances.