SO (Migration) - [2024] ARTA 11

DECISION AND
REASONS FOR DECISION
SO (Migration) [2024] ARTA 11 (23 October 2024)
Applicant:Mr Cheuk Him So
Respondent:  Minister for Home Affairs
Tribunal Number:  2429616
Tribunal:Senior member K. Raif
Place:Sydney
Date:23 October 2024
Decision:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 23 October 2024 at 2:43pm
CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – applicant convicted of an offence – compelling need – long-term relationship with Australian permanent resident partner – emotional and financial hardship – decision under review set aside
LEGISLATION
Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, r 2.43
STATEMENT OF REASONS
Application for review

This is an application for review of a decision dated 15 August 2024 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 485 (Temporary Graduate) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of Hong Kong, born in February 1998. He was granted a Skilled visa in March 2023. In July 2024 the applicant was issued with a Notice of Intention to Consider Cancellation of his visa (NOICC) because he had been convicted of an offence. The applicant provided his response to the NOICC and in August 2024 his visa was cancelled. The applicant is seeking review of the delegate’s decision.
The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 23 October 2024 to give evidence and present arguments. The Tribunal also received oral evidence from his partner Ms Cui. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Relevant law
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.
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(oa) is relevant. It relevantly states:
Reg 2.43 Grounds for cancellation of visa (Act, s116)
(1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:
(oa)in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) 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))
Does the ground for cancellation exist?
The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted the Skilled visa in March 2023 and that visa was due to be in effect until March 2028.
It is stated that in May 2024 the applicant was convicted of an offence ‘exceeding speed limit by 45 km/h’ and was sentenced to a term of imprisonment of 2 months and 3 days (suspended). In his response to the NOICC the applicant concedes that he had been convicted of an offence and that there are grounds for cancellation of his visa. In oral evidence the applicant also confirmed that he has been convicted of an offence and that there are grounds for cancelling his visa.
The Tribunal finds that the applicant was a holder of a Temporary Graduate Subclass 485 visa, which is a temporary visa other than a Bridging visa and a Special Category visa. The Tribunal finds that the applicant had been convicted of offences against the law of the state of NSW. The Tribunal finds that there are grounds for cancelling the visa under s. 116(1)(g) and r. 2.43(1)(oa).
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
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has 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, whether the visa holder has a compelling need to travel to or remain in Australia
The applicant travelled to Australia to complete his study and upon completion of the Accounting course, the applicant obtained the Skilled visa. His evidence is that in the past, he had engaged in employment related to his field of study. In oral evidence the applicant told the Tribunal that he has been in Australia since 2016 and graduated with a Bachelor of Accounting. He wants to remain in Australia and support his family in this country. The applicant told the Tribunal that he completed his degree in late 2022 and between May 2023 and May 2024 he worked as an accounting clerk. Since that time, he has been looking for a job but it is hard to find a job with his visa conditions.
In relation to his need to remain in Australia the applicant refers to a long-term relationship with his partner in Australia. The applicant told the Tribunal that he has a long-term relationship (since 2020) with his partner who is a permanent resident in Australia and he states that his partner relies on him emotionally and financially. The Tribunal is prepared to accept that the presence of the applicant’s partner in Australia may constitute a compelling need for the applicant to remain in Australia.
The extent of compliance with visa conditions
Nothing adverse is known about the applicant’s compliance with visa conditions
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
In his response to the NOICC the applicant refers to his long term relationship with an Australian partner and he states that both he and his partner would experience emotional hardship if they are to be separated.
The applicant told the Tribunal that he intends to apply for a permanent visa on the basis of living in a regional area for three years and he has only a year and a half before he is eligible to seek that visa. As a holder of a Hong Kong passport, there are no other requirements and he believes he would be able to gain permanent residence. The Tribunal accepts that if the applicant is not able to remain in Australia as a result of his visa being cancelled, he may not be eligible to make that application.
The applicant told the Tribunal that he has a long term relationship and his partner is now a permanent resident and is willing to sponsor him for a Partner visa.
The applicant refers to his employment and community ties in Australia and he provided a number of supporting statements from third parties. The applicant told the Tribunal that he has been living in Australia since 2016 and has already invested his time into the future in this country and he hopes he can continue his career and his life in Australia. The Tribunal accepts that the applicant has formed strong ties in Australia, although the Tribunal is also mindful that the visa in question is a temporary visa only which (unless the applicant is granted another visa) would not enable the applicant to remain in Australia.
The applicant states that if his visa is cancelled, he will lose the opportunity to seek permanent visa in Australia. The Tribunal accepts that the cancellation of the visa would limit the applicant’s options of seeking other visas in the future.
The applicant states that he has been away from Hong Kong for a long time and may find it difficult to resume his career and get used to life in Hong Kong and he is also worried about the situation in Hong Kong. The Tribunal does not accept that evidence, noting that the applicant only held a temporary visa which would not have permitted him to remain in Australia permanently. While the applicant states that there is a visa that would enable him to remain in Australia permanently, he is yet to make that application and his eligibility for that visa has not been assessed. It cannot be assumed, in the Tribunal’s view, that the applicant would be able to remain in Australia permanently.
The applicant refers to financial hardship, stating that it would be difficult for him to find a job if he does not have a substantive visa. He told the Tribunal that he has been sharing bills with his partner and she is already experiencing stress due to his inability to work and contribute to household expenses. The Tribunal acknowledges that this might be the case, although the applicant’s evidence indicates that he did not have a stable long-term employment prior to the cancellation of the visa. The applicant told the Tribunal that he has not worked since May 2024 and has been supported by his parents. In the Tribunal’s view, that type of contribution can continue irrespective of the applicant’s visa status.
The applicant also states that his partner would experience emotional hardship if his visa is cancelled. However, he told the Tribunal that his partner is wiling to sponsor him for the Partner visa and that this would happen if his visa remains cancelled. That would suggest that the applicant may not be required to leave Australia if the present visa is cancelled as he has other visa options, although the Tribunal accepts the applicant’s evidence that there is a high fee associated with a Partner visa application and the need to meet the Schedule 3 criteria for an onshore application or lengthy processing time in relation to an offshore application.
The applicant’s partner, Ms Cui told the Tribunal about her relationship with the applicant, which started in 2020, stating that he is a caring person who helps her a lot and supports her. Ms Cui told the Tribunal that the applicant has learned from his mistake and she believes they have already been punished sufficiently, emotionally and financially. She states that she had to pick up extra shifts to financially support the household and she believes that cancellation of the visa would be ‘too harsh’ and a big punishment.
The Tribunal accepts that the cancellation of the visa would cause hardship to the applicant and his partner, primarily financial hardship and the hardship associated with limited visa options in the future.
Circumstances in which ground of cancellation arose
The ground for cancellation arises because the applicant has been convicted of an offence as a holder of a temporary visa. The applicant told the Tribunal that on the day in question, he was driving home after work, feeling tired. He states that there was not much traffic on the road and he decided to drive faster. The police attended his home a short time later and he had fully cooperated with the police.
The Tribunal does not consider that there were circumstances beyond the applicant’s control.
Past and present behaviour of the visa holder towards the department
Nothing adverse is known about the applicant’s past and present behaviour towards the Department.
Whether there would be consequential cancellations under s 140
There are no persons whose visa would be subject to consequential cancellation under s. 140.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention although he may be subject to an exclusion period in relation to some visas and would have limited opportunities to make visa applications onshore due the limitations imposed by s. 48.
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
In his response to the NOICC and oral evidence to the Tribunal the applicant refers to the political situation in Hong Kong. However, the applicant has made generalised statement and has not identified any harm that he himself would experience upon return to Hong Kong. In oral evidence the applicant stated that he did not believe he would experience harm or persecution upon return to Hong Kong. On the limited evidence before it, the Tribunal is not satisfied that Australia’s non-refoulement obligations arise in this case.
There are no children who would be affected by the cancellation of the visa.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The visa in question is not a permanent visa. The applicant refers to his ties in Australia and these claims have been addressed elsewhere.
Any other relevant matters
The applicant refers in his submissions to the delegate to his settlement in Australia including the study he has completed in this country and his past employment. The applicant provided with his submission to the delegate evidence of his past study and a letter from his employer, as well as some character references. The Tribunal accepts that evidence.
The applicant refers to his remorse, his insight into the offending and his undertaking not to reoffend. In oral evidence, the applicant told the Tribunal that the offence took place in 2022 and he has “learned his lesson” and has not committed any offences since that time and has been a law-abiding person.
The applicant’s representative submits that ‘there is no point’ in cancelling the visa and making the applicant reapply for a Partner visa, which would incur a high financial cost and delays.
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that he has been convicted of an offence and held a temporary visa and that there are grounds for cancelling the visa. The Tribunal acknowledges that there are no other convictions and no other incidents of breaches of the law or of visa conditions.
The Tribunal accepts that the applicant is fulfilling the purpose of his stay in Australia and, significantly, that there may be a compelling need for him to remain in Australia as he has a long term de facto partner in this country. The Tribunal also accepts that considerable hardship would be caused to the applicant and his partner if the visa is cancelled, particularly financial hardship with the applicant not being able to engage in employment and contribute to the family budget and, if he was to make another visa application, the costs associated with such an application.
The Tribunal also acknowledges that the cancellation of the visa would preclude the applicant from applying for a permanent visa in the future, noting that the applicant has been living in a regional area for approximately 18 months and, on his evidence at least, will be eligible to seek a permanent visa in the future by virtue of his passport and specified period of residence in a regional area.
The Tribunal has considered the nature of the offending. In this case, the offence was serious, as it had the potential of causing harm to other road users. However, it is a single offence, the applicant’s evidence is that the conduct took place in 2022 and there is no evidence of the applicant breaching any other laws.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.
Date(s) of hearing 23 October 2024
Representative for the Applicant: Mr Hang Chen (MARN: 0854662)