Su (Migration)

Su (Migration) [2023] AATA 3130 (11 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Ming-En Su
Mrs Ti-Yang Wu
CASE NUMBER:  2303978
HOME AFFAIRS REFERENCE(S):          BCC2022/4686722
MEMBER:Alison Mercer
DATE:11 September 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s subclass 482 - Temporary Skill Shortage visa.
The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 11 September 2023 at 12:35pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – applicant convicted of multiple offences – period of imprisonment – property ownership – financial hardship – decision under review set aside
LEGISLATION
Migration Act 1958, ss 48, 116, 140, 348
Migration Regulations 1994, r 2.43
CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 20 March 2023 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 482 - Temporary Skill Shortage visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(g) on the basis that a prescribed ground for cancellation existed. The delegate noted that r.2.43(1)(oa) of the Regulations provided that the prescribed grounds for cancellation included a state or Commonwealth criminal conviction. The delegate further found that information from Victoria Police indicated that the applicant had been convicted of 10 offences at Broadmeadows Magistrates Court in Victoria (3 x false imprisonment, 3 x intentionally causing injury, and 1 x theft of a motor vehicle) after pleading guilty to all charges, and had received a jail sentence of 7 months. The delegate therefore found that a prescribed ground for cancellation existed, and went on to consider whether to exercise the discretion not to cancel the applicant’s visa, having regard to the various factors listed in the Department’s policy guidelines (set out in its Procedures Advice Manual, or PAM3), which included:
·the purpose of the applicant’s travel to or stay in Australia;
·the applicant’s compliance with his visa conditions;
·the degree of hardship that the applicant would experience if his visa were cancelled;
·the circumstances in which the grounds for cancellation arose;
·whether the applicant had cooperated with the Department;
·Whether there would be any consequential visa cancellations following cancellation of the applicant’s visa;
·the legal consequence of the cancellation, particularly if to do so would breach Australia’s international obligations; and
·any other relevant matters.
The delegate ultimately concluded that the factors in favour of cancelling the applicant’s visa outweighed those against, and made a decision to cancel the applicant’s subclass 482 visa. One of the consequences of this decision was the automatic consequential cancellation of the subclass 482 visa of second named applicant (the applicant’s wife).
The Tribunal received a review application from the applicants on 20 March 2023. It was accompanied by a copy of the delegate’s decision.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction under s 348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the second named applicant.
The applicants appeared before the Tribunal on 16 August 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
At the commencement of the hearing, the applicants provided the following documents to the Tribunal:
·3 character references for the applicant from friends and colleagues Cameron Akers, Peter Lea and Wing Chi Lau;
·Foreign Investment Review Board (FIRB) approval for the applicant to purchase an off the plan apartment, dated 28 June 2022;
·warranty dated 11 January 2022 for Honda CRV purchased by the applicant; and
·medical reports for the applicant’s mother in Taiwan, various dates in May 2023, indicating that she has metatastic pancreatic carcinoma.
The applicant confirmed that he originally came to Australia on a working holiday visa in 2017. The second named applicant came in 2018 to join him, as they had been a couple in Taiwan. In 2019, they got married in Australia and in early 2020, O’Connor sponsored the applicant for the 4 year subclass 482 visa.
The applicant confirmed that he served 7 months in jail following a violent incident in which he was involved in August 2022 as a result of which he was charged and convicted with 10 criminal offences. He was released from jail on 28 February 2023. He said that he initially returned to work at his employer, O’Connor, as his lawyer told him that his visa was still valid. However, once he was notified that his visa had been cancelled, he stopped work as he no longer had permission to do so. The applicants told the Tribunal that when their subclass 482 visas were cancelled, they applied for bridging visa Es. The second named applicant was granted a bridging visa E with permission to work, but the applicant’s bridging visa application was yet to be determined by the Department. The applicants confirmed that prior to the visa cancellations, they were both working full time for O’Connor. The applicant worked as a skilled slicer and boner, while the second named applicant undertook cleaning and administrative work. The second named applicant confirmed that she was still working for O’Connor and was now the sole bread-winner, which had put them under financial stress.
The applicants told the Tribunal that their financial commitments included their rent, their car loan, their living expenses and the money that they each sent back to their respective sets of parents in Taiwan. The applicant said told the Tribunal that his mother became seriously ill around the time that he was released from jail in February 2023, and he had to send a significant sum of money to meet her medical expenses (approximately $73,897 Taiwanese New dollars, equivalent to approximately AUD $3,592). The applicant said that his mother had been given 3 to 9 months to live and had just started chemotherapy. He estimated the costs of her treatment as AUD $100,000 and said that there was no way that he could earn this amount of money working in Taiwan. In response to the Tribunal’s query, the applicant said that his brother, who is also in Australia on a bridging visa awaiting the outcome of his protection visa application, also contributes to his mother’s medical expenses, and that the Taiwanese medical insurance system does not cover cancer treatment, or at least not the most effective drugs for his mother’s condition.
The applicants told the Tribunal that having been granted subclass 482 visas in 2020, they intended to eventually apply for permanent residence. The applicant said that O’Connor was willing and able to nominate him for permanent residence. They were also willing to re-employ him once he had permission to work again, and they were fully aware of the criminal charges against him and his jail sentence.
The applicant told the Tribunal that he had bought a Honda vehicle in early 2022 which he was still paying off. If he had to sell it, the proceeds would go to paying out the loan but he was unlikely to retain any profit. The applicant confirmed that he had put a deposit of AUD $60,000 on an off the plan apartment in South Bank in Melbourne, which was due to be completed in 2025. The applicant said that prior to his visa cancellation, he had intended to pay off the property and have this apartment for his parents use when they visited Australia. However, his circumstances, and those of his mother, had changed and it was unlikely that his parents would be able to come to Australia due to his mother’s illness. In response to the Tribunal’s query, the applicant said that he was not sure if he could sell or transfer his interest in the off the plan apartment, in the event that he was unable to remain in Australia.
In relation to the circumstances of his criminal offences, the applicant said that he went along with a group of friends from his workplace, who were also Taiwanese. He drove them to a property, and said that he understood that they had some kind of dispute with some mainland Chinese people, who also came to the property. In response to the Tribunal’s query, the applicant said that he did not know the details of the dispute or what was going to happen when the 2 groups met. He told the Tribunal that he did not hit or injure anyone and did not have a weapon. However, he accepted responsibility for having been part of the group that attacked the people who came to the property. He said that he let the police into the house when they arrived and did not try to abscond. Although his role was not as the ring leader or someone who physically attacked the victims, he and the 5 others in his group were all charged with the same offences and all received the same sentence (7 months in jail as an aggregate sentence) after pleading guilty on the advice of their lawyer, who said that they would receive shorter sentences if they did so.
The applicant said that he did not agree with the police report indicating that he did not appear remorseful, as he deeply regretted having been involved in this incident. He told the Tribunal that he was brought up in a Christian family and was absolutely sure he would never again be involved in a similar incident. He regretted having caused such difficulty for his wife and his extended family, and for scaring members of the Australian public. In response to the Tribunal observing that the police report indicates that the offences were pre-meditated and the attackers had with them baseball bats, knives and machetes, the applicant said while he did not have any of these weapons, it was not unusual in Taiwan for people to carry such weapons in their cars, so he did not think that much of it when he drove the others to the property where the offences occurred. In response to the Tribunal reading out the statement of 1 of the victims which indicated that the victim was ambushed and did not know that he was going to be attacked, the applicant said that he understood both groups knew there was going to be some kind of conflict.
The applicant said that he had had some time to reflect on the events leading to his criminal convictions and knew that he had made a mistake. He resolved never to be involved in anything like that again, and he sincerely asked the Australian authorities for a second chance.
The second named applicant said that she did not know what was going to happen when the applicant went out with his friends on the night of the incident. When she heard what had happened, she said that there was no point in reproaching her husband, but she made him undertake to never do anything similar again and to be careful with whom he made friends. Since their subclass 482 visas were cancelled, she had been very unsettled and nervous.
The applicants told the Tribunal that if their visas remained cancelled, all of their hard work in Australia would have been in vain, they would not be able to meet their financial commitments (principally the car loan and the property purchase, and also the applicant’s mother’s medical costs). They also told the Tribunal that they wished to start a family but their current uncertainty made that very hard.
In response to the Tribunal’s query, the second named applicant said that she had a brother and sister in Taiwan but that they would not be able to provide the applicants with much financial support if they had to return there, as they each had their own families to support.
In response to the Tribunal’s query, the applicants said that they had no other reasons to fear returning to Taiwan other than that it would be very disruptive for them and they would be financially adversely affected.
The Tribunal indicated that it would defer its decision for 2 weeks following the hearing to enable the applicants to obtain (if possible) an updated work reference from O’Connor, proof of the payment of the AUD $60,000 property deposit, and of their car loan.
On 18 August 2023, the Tribunal received the following from the applicants:
·letter dated 17 August 2023 from the Operations Manager and Human Resources Manager at G & K O’Connor Pty Ltd confirming that the company was the sponsor for the applicant’s subclass 482 visa and that it would happily re-employ the applicant as a skilled meat worker;
·letter dated 18 August 2023 from the payroll officer of G & K O’Connor Pty Ltd confirming that the second named applicant is employed full time in the Amenities Department;
·screenshots showing the applicant’s payments on his Nissan car loan of between $1,300 and $1,450 per month from January 2022 to date; and
·evidence of the applicant’s payments in relation to deposit of $60,660 for purchase of property at Southbank, Melbourne, April 2022.
In the email attaching the above documents, the applicant stated, ‘I will use the rest of my life to help more people in need. I sincerely hope that the Australian government will give me a chance to turn over a new leaf.’
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
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?
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. That sub-regulation provides as follows:
…
(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));
…
The Tribunal is satisfied that, prior to the cancellation, the applicant held a subclass 482 visa granted to him on 23 November 2020.
The Tribunal is further satisfied, from the material provided by the applicant, that on 26 October 2022, a Magistrate at the Broadmeadows Magistrates’ Court convicted the applicant of 3 charges of false imprisonment, 3 charges of unlawful assault, 3 charges of intentionally causing injury and 1 charge of theft of a vehicle. The sentencing remarks indicate that the applicant pleaded guilty and received an aggregate sentence of 7 months in jail. The Tribunal is satisfied that these were offences under Victorian law.
Accordingly, the Tribunal finds that a ground for cancellation under s.116(1)(g) is established.
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
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 applicant’s travel and stay in Australia; whether the applicant has a compelling need to travel to or remain in Australia
The applicant’s evidence is that he came to Australia originally as a subclass 417 Working Holiday visa holder and subsequently was nominated for a subclass 482 visa by his Australian employer, G & K O’Connor Pty Ltd as a skilled meat worker in late 2020 under a Labour Agreement. His employer provided a letter to the Department stating that the applicant’s position is a highly skilled one requiring specialised training, and that the company relies on employees such as the applicant.
At hearing, the applicant told the Tribunal that he is a skilled meat worker, having worked in this field in Taiwan before coming to Australia, and then working full time in this field for approximately 2 years until he went to jail in 2022. He told the Tribunal that his former employer and sponsor for his subclass 482 visa, G & K O’Connor Pty Ltd, were aware of his criminal conviction and jail sentence but were willing to re-employ him due to his skills. After the hearing, he provided written confirmation of this from his employer.
At hearing, the applicants told the Tribunal that they were both well settled in Australia and – prior to the applicant’s convictions – had planned to apply in due course for permanent residence through the applicant’s employment. With this in mind, the applicant had taken out a car loan for a Nissan vehicle and had paid a deposit of over $66,000 for an off the plan apartment in Southbank in Melbourne. While it appears that the applicant could sell his Nissan vehicle, the Tribunal accepts that this would enable him to pay out the loan (or most of it) but not to realise any significant profit. It is not clear whether the applicant has the ability to sell his interest in the off the plan Southbank apartment; and if he does, whether he would forfeit all or part of the approximately $66,000 deposit he has already paid.
Both applicants indicated that they used their Australian earnings to support not only themselves but to contribute to their respective parents’ support in Taiwan. In particular, the applicant provided evidence that his mother has recently been diagnosed with terminal cancer, and that he has paid most of her medical expenses to date and wishes to continue to do so.
The Tribunal accepts that the applicants would suffer financial disadvantage if their visas were cancelled.
Finally, the Tribunal notes that the applicants’ subclass 482 visas would have been valid until 23 November 2024 had they not been cancelled on 20 March 2023.
The Tribunal places some weight on the above factors and finds that they weigh against the cancellation of the visas.
The extent of the applicant’s compliance with visa conditions
There is no evidence in the Department’s records or otherwise before the Tribunal to suggest that the applicant did not comply with the conditions of his subclass 417 or 482 visas prior to the cancellation of his subclass 482 visa.

The Tribunal places some weight on the above factor and finds that it weighs against the cancellation of the visas.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
As noted above, the applicants gave evidence that the cancellation of their visas had already caused them some financial hardship, although to date they had been able to continue to pay their rent and the applicant’s car loan. However, they were reliant on the second named applicant’s salary only, and their expenses were likely to increase in relation to the costs of cancer treatment for the applicant’s mother in Taiwan. The Tribunal therefore accepts that the cancellations have caused some financial hardship to the applicants.
The Tribunal also accepts that the cancellations have caused some psychological and emotional hardship to both the applicants. While the Tribunal considers that it was the applicant’s own actions that led to the cancellations (and thus to the emotional hardship), it accepts that the cancellation (as well as his jail sentence and loss of employment) have affected the applicant emotionally, particularly since learning after being released from jail that his mother in Taiwan is seriously ill and not expected to live for much longer.
The Tribunal places some weight on the above factors and finds that they weigh against the cancellation of the visas.
The circumstances in which the ground of cancellation arose
The detailed information provided by the applicant indicates that he, with several others, engaged in a deliberate and pre-meditated assault on another group of men, having lured them to a location by falsely claiming to have work for them. The assault involved restraining the victims and the use of knives and baseball bats. The police report indicates that one of the victims was injured and required hospital treatment, and that the injuries would have likely been more serious had the police not arrived when they did.
The Tribunal considers this behaviour to be extremely serious. While it is to the applicant’s credit that he pleaded guilty (reducing his sentence from 12 months to 7 months, according to the sentencing Magistrate’s remarks) and (on his evidence) was not the ring leader, the fact that he voluntarily took part in such a plan is extremely concerning. Although the applicant denied at hearing that he knew what exactly was going to happen, and stated that he did not injure anyone, his evidence made it tolerably clear that he knew that there was likely to be some kind of conflict involved when he agreed to go with his workmates on the night of the incident, and that he did so out of a sense of loyalty.
The Tribunal gives these factors some weight in favour of cancellation.
The Tribunal notes that the applicant provided several character references from his employer and work colleagues although it is unclear whether all of them were aware of the applicant’s convictions and jail sentence. In relation to those that clearly indicate that they are aware of the applicant’s criminal convictions and jail sentence, the writers all state that they consider the applicant’s behaviour in relation to these matters to be very much out of character, and they describe him as a hard worker and a considerate colleague. The Tribunal further notes that the applicant’s employer, G & K O’Connor Pty Ltd, has written to the Department and Tribunal to indicate that the applicant is a highly skilled and valuable meat worker, and that they would re-employ him despite what has happened, if he were granted permission to work.
In the Tribunal’s view, the applicant demonstrated at hearing that he genuinely regretted becoming involved in the dispute for which he was convicted and jailed, and that he sincerely intended to avoid any similar incident in future.
The Tribunal places some weight on the above factors and finds that they weigh against the cancellation of the visas.
The applicant’s past and present behaviour towards the Department
There is no evidence in the Department’s records to indicate or otherwise that the applicant has been uncooperative with the Department.
The Tribunal places some weight on the above factor and finds that it weighs against the cancellation of the visas.
Whether there would be consequential cancellations under s.140
The Tribunal is satisfied that the second named applicant’s subclass 482 visa was consequentially cancelled under s.140 as a result of the cancellation of the applicant’s visa.
There is no suggestion that she had any involvement in the incident for which her husband was charged, convicted and jailed, and she is now the sole breadwinner for the couple.
The Tribunal places some weight on the above factor and finds that it weighs against the cancellation of the visas.
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
The Tribunal accepts that since the cancellation of his visa, the applicant has become an unlawful non-citizen, and is therefore liable to be taken into immigration detention and removed. He is now subject to s.48 of the Act, which prevents him from making most other onshore applications, and the Tribunal accepts that he would likely face difficulties obtaining another visa from offshore to return to Australia.
The Tribunal places some weight on the above factors and finds that they weigh against the cancellation of the visas.
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
The Tribunal is satisfied that no such obligations arise in relation to the applicant’s case.
The Tribunal gives no weight to this factor either in favour or, or against, cancellation of the visa.
Any other relevant matters
The applicants did not raise any other matters.
Conclusion
The Tribunal has considered carefully the factors in favour of and against the cancellations of the applicants’ subclass 482 visas.
The nature of the applicant’s offending weighs in favour of visa cancellation.
However, the Tribunal acknowledges that the applicant appears to have been charged in concert with the other offenders (although he denied his role was as active as the others and he was not the ring leader) and that he pleaded guilty, which led to a reduced sentence from 12 to 7 months in jail. The applicant also provided evidence that he has been a valued and skilled employee in a regional Victorian business which is willing to re-employ him if permitted, and for whom his wife continues to work. The Tribunal also notes that the latest Skills Priority List issued by the Australian government’s National Skills Commission (issued 2022) lists Meat Boners and Slicers as being in short supply in all Australian states (apart from Western Australia), with strong future demand. The applicant has provided evidence of peer support and of a sound work ethic. The Tribunal accepts that the applicant’s offending arose in the context of a group setting and that he was not the initiator or ringleader. He has accepted responsibility for his wrong-doing and there is no evidence of any other criminal activity by him. His wife, employer and many work colleagues are supportive of him. He and his wife are relatively well settled in Australia, residing here for approximately 3 years.
Considering the circumstances as a whole, and on balance, the Tribunal finds that the factors in favour of not cancelling the visas outweigh those in favour of cancellation, and 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 first named applicant’s subclass 482 - Temporary Skill Shortage visa.
The Tribunal has no jurisdiction with respect to the second named applicant.
Alison Mercer

Member

[2023] AATA 3130

11 September 2023

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