SINGH (MIGRATION) - [2024] ARTA 131

SINGH (MIGRATION) [2024] ARTA 131 (13 NOVEMBER 2024)

DECISION AND

REASONS FOR DECISION

Applicant:Mr Harjeet Singh
Respondent: Minister for Home Affairs
Tribunal Number: 2402375
Tribunal:Andrew McLean Williams
Place:Brisbane
Date:13 November 2024
Decision:The Tribunal affirms the decision to cancel the Applicant’s Subclass 494 - Skilled Employer Sponsored Regional (Provisional) visa.

Statement made on 13 November 2024 at 12:01pm

CATCHWORDS
MIGRATION – cancellation – Subclass 494 – Skilled Employer Sponsored Regional (Provisional) visa – criminal conviction – no further compelling need to remain in Australia – applicant is not fulfilling the purpose of his stay in Australia – decision under review affirmed

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

STATEMENT OF REASONS

APPLICATION FOR REVIEW

This is an Application for Review of a decision made by a Delegate of the Minister for Home Affairs to cancel the Applicant’s Subclass 494 - Skilled Employer Sponsored Regional (Provisional) visa pursuant to s.116 of the Migration Act 1958 (Cth) (‘the Act’).
The Delegate cancelled the visa under s.116(1)(g) on the basis that the Applicant had been convicted in Queensland upon one count of unlawful stalking. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The Applicant appeared before the Tribunal for the hearing on 13 November 2024 at 11.00am AEST to give evidence and make submissions.
For the following reasons, the Tribunal has concluded that the decision to cancel the Applicant’s visa should now be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

Under s.116 of the Act, the Minister may cancel a visa if satisfied that certain grounds specified in that provision are made out. Relevantly, these include the ground set out in s.116(1)(g). The Migration Regulations 1994 (Cth) (‘the Regulations’) may prescribe circumstances in which a visa is not to, or must, be cancelled: s.116(2) and (3). Further, the Regulations may prescribe matters to which the Minister must, must not, or may, have regard in determining whether a ground for cancellation is made out under s.116(1), (1AA), (1AB) or (1AC), and the weight to be given to such a matter: s.116(1A).
If satisfied that the ground for cancellation is made out, and any circumstances prescribed under s.116(2) or (3) are not applicable, the decision maker must proceed to consider whether the visa should be cancelled. In determining whether the visa should be cancelled, the decision-maker must have regard to all relevant circumstances, which may include matters prescribed under s.116(1A) and other matters of government policy.

Does the ground for cancellation exist?

A visa may be cancelled under s.116(1)(g) if the Minister is satisfied that a prescribed ground for cancelling the visa applies to the Applicant. The prescribed grounds for cancellation are set out in regulation 2.43 of the Regulations. In the present case, the ground in regulation 2.43(1)(oa) becomes relevant. Regulation 2.43(1)(oa) provides that a ground for cancellation arises in the case of the holder of a temporary visa if the Minister is satisfied that the holder of the temporary visa has been convicted of an offence against a law of the Commonwealth, a State, or a Territory of Australia.
On 18 August 2023 the Applicant was convicted before the Cairns Magistrates Court of Unlawful Stalking (Queensland Criminal Code s.359E(1)) and was imprisoned for three months, wholly suspended for nine months.
On the basis that the Applicant is the holder of a temporary visa and has been convicted of an offence against the law of Queensland, a ground for cancellation of the Applicant’s visa pursuant to s.116(1)(g) of the Act does exist. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the discretionary power to cancel the visa should be exercised.

Consideration of discretion

Except for visas cancelled on the basis of a breach of visa condition under s.116(1)(b), there are no prescribed matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has therefore had regard to all of the circumstances of this case, including matters raised by the Applicant, and matters in the Department’s policy guidelines (‘General visa cancellation powers (s.109, s.116, s.128, s.134B and s.140)’), which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The Department gave the Applicant Notice of Intention to Consider Cancellation (‘NOICC’) on 17 October 2023, thereby inviting submissions in writing from the Applicant as to why his visa should not be cancelled. The Applicant provided written submissions in response to the NOICC on 25 and 31 October 2023.
As part of his written submissions in response to the NOICC the Applicant submits that he had entered a plea of guilty to the charge and has accepted his guilt, that he is remorseful, and has no prior convictions. The Applicant also submitted that he provides financial support to his family in India, which will be lost to them in the event that his visa is now cancelled. The Applicant also submitted that he is fearful that visa cancellation will impact upon his prospects for obtaining permanent residency in Australia in the future. The Applicant requests that his visa not be cancelled, and that he now be given ‘a second chance’.
As part of his oral testimony before the Tribunal on 13 November 2024 the Applicant submitted that he accepts the fact that he made a “one off mistake” for which he is remorseful. The Applicant seeks forgiveness, and claims that he was unaware that unlawful stalking was so serious.
Purpose of the Applicant’s travel to and stay in Australia:
On 26 May 2022 the Applicant was granted a Subclass 494 visa for the purpose of working in regional Australia, only in a nominated occupation, and only for an approved sponsor. In the NOICC response - and again in his oral evidence before the Tribunal - the Applicant indicated that he lost his employment as a result of the criminal conviction. A five year restraining order was also imposed on the Applicant preventing him from having further contact with the victim of his unlawful stalking, who happened to be a female co-worker with the same employer.
There is no information before the Tribunal indicating that another approved sponsor now employs the Applicant. Given the fact of the conviction, and given the impossibility of the Applicant now returning to employment with his approved sponsor until the restraining order either expires or is lifted, the Applicant’s on-going presence in Australia is no longer consistent with the purposes for which the Applicant was granted a visa to travel to and remain in Australia.
The Tribunal now gives this consideration significant weight favour of visa cancellation.
The extent of the Applicant’s compliance with visa conditions:
There is no information before the Tribunal to suggest that the Applicant has been non-compliant with any other visa conditions. Therefore, some weight is attached to this consideration in favour of not cancelling the visa.
The degree of hardship that may be caused to the Applicant and any family members:
In response to the NOICC the Applicant claims to be a member of a middle-class family in India and states that his family are financially dependent on monies remitted to India by the Applicant from his earnings in Australia.
The Tribunal accepts that is conceivable that both the Applicant and his family may be caused some financial hardship or other forms of hardship – such as shame and stigma - in the event that the Applicant’s visa were to be cancelled. Some weight is now attached to this consideration by the Tribunal in favour of not cancelling the visa.
The circumstances in which the ground for cancellation arose:
Grounds for visa cancellation arose because the Applicant was convicted on 18 August 2023 upon one count of unlawful stalking.
Although the Applicant is remorseful, and acknowledges his guilt and has no prior criminal convictions, and now requests a ‘second chance’, the fact of his conviction on a charge of unlawful stalking is a significant matter and the Tribunal now attaches significant weight to the fact of that conviction in favour of visa cancellation.
The Applicant’s past and present behaviour towards the Department:
There is no information before the Tribunal to indicate that the Applicant has not been cooperative with the Department or with Departmental staff. The Tribunal gives this consideration some weight against visa cancellation.
Any consequential cancellations that may result:
No other persons are exposed to a consequential visa cancellation, in the event that the Applicant’s visa were to be cancelled. Accordingly, no weight attaches to this consideration either for or against visa cancellation.
Legal consequences of a decision to cancel the visa:
If the Applicant’s visa is cancelled, he would no longer hold a valid visa and therefore would not be entitled to travel to Australia. If the Applicant did attempt to travel to Australia in these circumstances he would be refused immigration clearance, and would be removed from Australia. Visa cancellation would also result in the application of Public Interest Criteria 4013, which means that the Applicant may be prevented from being granted a further visa to Australia for three years from the date of the visa cancellation. If the visa is cancelled, the Applicant would be entitled to apply for revocation of the decision.
The Tribunal attaches some weight to this consideration against cancelling the Visa.
Australia’s international obligations:
There is no information before the Tribunal to indicate that any of Australia’s international obligations may be impacted by the cancellation of the Applicant’s visa. Neutral weight therefore attaches to this consideration.
Any other matters:
There is no other information before the Tribunal regarding any other matters that require consideration. Neutral weight therefore attaches to this consideration.
Considering the circumstances as a whole, the Tribunal concludes that those matters that now stand in favour of not cancelling the visa are outweighed by those considerations requiring that the visa be cancelled.

DECISION

The Tribunal affirms the decision to cancel the Applicant’s Subclass 494 - Skilled Employer Sponsored Regional (Provisional) visa.

Date(s) of hearing: 13 November 2024
Representative for the Applicant: Mr Sourabh Aggarwal (MARN: 1462159)