Su (Migration) - [2023] AATA 3130

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Su (Migration)

Details

AGLC: Su (Migration) [2023] AATA 3130
Case: [2023] AATA 3130
Decision Date: 11 September 2023

CaseChat Overview and Summary

This matter concerned the review of a decision to cancel the Temporary Skill Shortage (Class GK) visa, subclass 482, held by the applicant. The cancellation was based on the applicant's conviction for multiple offences under Victorian law, including false imprisonment, unlawful assault, intentionally causing injury, and theft of a vehicle, for which he received a sentence of seven months imprisonment.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(g) permits the Minister to cancel a visa if satisfied that a prescribed ground applies, and regulation 2.43(1)(oa) of the Migration Regulations 1994 (Cth) prescribes that a holder of a temporary visa has been convicted of an offence against Commonwealth, State, or Territory law.

The Tribunal found that the ground for cancellation was established, as the applicant had been convicted of offences under Victorian law. However, as this ground did not mandate cancellation, the Tribunal proceeded to consider the exercise of discretion. The Tribunal had regard to the applicant's circumstances, including his skilled employment as a meat worker, the reliance of his sponsoring employer on his skills, his plans to apply for permanent residency, and significant financial commitments such as a car loan and a substantial deposit on an off-the-plan apartment. Furthermore, the Tribunal considered the applicant's financial support for his mother, who had been diagnosed with terminal cancer, and accepted that the cancellation of his visa would cause him financial disadvantage. On balance, the Tribunal concluded that the factors favouring non-cancellation outweighed those favouring cancellation.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's subclass 482 visa. The Tribunal noted it had no jurisdiction concerning a second applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 cancelledDECISION 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 MercerMember

Ratio Decidendi

Legal Principle 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.