TABAKU (Migration)

[2023] AATA 3785

TABAKU (Migration) [2023] AATA 3785 (8 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Paulin TABAKU
Ms Arlinda Qejvani
Miss Sofia Tabaku
Mr Elia Tabaku

REPRESENTATIVE:  Ms Shalini Nallaratnam

CASE NUMBER:  2312772

HOME AFFAIRS REFERENCE(S):          BCC2023/2128670

MEMBER:R. Skaros

DATE:8 November 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 491 - Skilled Work Regional (Provisional) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 08 November 2023 at 10:14am

CATCHWORDS

MIGRATION – cancellation – Skilled Work Regional (Provisional) (Class PS) visa – Subclass 491 - Skilled Work Regional (Provisional) – applicant convicted of an offence – impact on employer’s expansion plans – emotional and financial family hardship – consequential cancellations – best interest of the children – decision under review set aside        

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 189, 348
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4013; 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

1. This is an application for review of a decision dated 17 August 2023 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 491 - Skilled Work Regional (Provisional) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a 41-year-old dual citizen of Italy and Albania. He was born in Albania and travelled to Italy after completing high school. He was sponsored for work in Italy and acquired citizenship after living and working there for ten years. He is married to Ms Arlinda Qejvani, who is also a citizen of Italy and Albania. Ms Qejvani was born in Albania and travelled to Italy to complete higher education studies in law. The applicant and Ms Qejvani have two children together, Sofia who is six and a half years old and Elia who is two years old. Ms Qejvani is currently eight and a half months pregnant with their third child.

3. The applicant first travelled to Australia in November 2017 as the holder of a visitor visa. Whilst in Australia he applied for a student visa, however, that application was refused, and the applicant returned to Italy. The applicant travelled again to Australia in February 2019 as the holder of a visitor visa to attend a friend’s wedding. Whilst in Australia he applied for the Temporary Skills Shortage (Subclass 482) visa on the basis of a nomination by Coccobello Restaurant in Adelaide in the occupation of cook. The applicant was granted the Subclass 482 visa in April 2019. In May 2019, the applicant’s spouse and daughter Sofia travelled to Australia as holders of Subclass 482 visas. In March 2021, the applicant applied for the Skilled Work Regional (Subclass 491) visa, which included his spouse and children. The applicant and his family were granted Subclass 491 visas on 12 May 2022.

4. The delegate cancelled the applicant’s Subclass 491 visa under s 116(1)(g) of the Act because he was convicted of an offence against a law of the State of South Australia.

5. 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 other applicants’ visas were 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 those other visas 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 them.

6. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

7. The applicants appeared before the Tribunal by video conference on 2 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s employer and business partner, Mr Adriano Macri.

8. The applicants were represented in relation to the review. The representative attended the hearing.

9. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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?

11. 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. It provides that:

    (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));

12. On 28 March 2023, in the Magistrates Court of South Australia, the applicant was convicted of the following offences:

    Count 1: Cultivate a controlled plant (basic offence).

    Count 2: Possess prescribed equipment.

    Count 3: Abstract or divert electricity from power system.

13. For counts 1 and 2, the applicant was sentenced to a term of imprisonment of seven months and seven days (reduced from 12 months imprisonment) and the forfeiture of plant and equipment. For count 3 he was sentenced to a term of imprisonment of one month and 24 days (reduced from three months) to be served cumulatively with the sentence of imprisonment imposed on counts 1 and 2. The sentences of imprisonment were suspended upon entering a bond of good behaviour for 18 months for an amount of $500.

14. On the evidence before it, the Tribunal finds that the applicant, who is the holder of a temporary (Subclass 491) visa, has been convicted of an offence against the law of the State of South Australia. 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

15. 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 visa holder has a compelling need to travel to or remain in Australia

16. In oral evidence, the applicant said he visited Australia as it was something he always wanted to do. He loved Australia and considered South Australia a great place to raise a family. Whilst in Australia, he met the owner of Coccobello Restaurant who at the time was looking for a chef. He was sponsored by the restaurant under the Subclass 482 visa program in the occupation of cook on a salary of about $55,000. Even though he is a qualified chef, he was nominated as a cook, which attracted a lower salary.

17. Evidence was provided of the applicant’s qualifications, which included studies and training in Italy at Michelin star restaurants, qualifications from Boscolo Etoile Academy in Italy and an AQF Certificate III, IV and a Diploma in Commercial Cookery from a college in Australia, which included his recognised prior learning.

18. The applicant said he continued to work for Coccobello Restaurant for two and a half years, which included two years as the holder of the Subclass 482 visa and six months as the holder of a bridging A visa, which he held whilst awaiting the outcome of the Subclass 491 visa application. The applicant was subsequently offered employment as the Head Gelato Maker at a Bottega Gelataria.

19. It was submitted that the applicant’s role at Bottega Gelataria involves overseeing the production of high-quality gelato and managing a team of skilled workers to ensure Bottega’s gelato products meet the exceptional standards customers have come to know. It was further submitted that, as a testament to the applicant’s work ethic, he was offered the opportunity to join the partnership at Bottega Gelataria and appointed as a director. In this role, the applicant is involved in strategic decision-making, business development and expansion efforts with their new store in Prospect. A copy of the share certificate, business plan, lease documents and store fit out were provided to the Tribunal as evidence of the applicant’s ownership in the newly established gelato store.

20. It was submitted that the Subclass 491 visa was designed to address skill shortages in regional areas and distribute the benefits of skilled migration more broadly across the country, and that the program’s intentions are to support the economic and social development of Australia’s regional areas, and encourages visa holders to contribute to their regional communities through employment and investment. It was submitted that the applicant’s work with Bottega Gelataria not only enriches the local food scene but generates revenue and employment opportunities that will benefit South Australians, and that the economic contributions the applicant has made to the region are exactly what the government envisioned in its creation of the Subclass 491 visa.

21. The Tribunal is satisfied that the applicant has fulfilled the purpose for which he was granted the initial Subclass 482 visa, which was to work for his nominated employer for a period of two years. It is also satisfied that he is fulfilled the purpose for which he was granted the Subclass 491 visa which is to live and work in regional Australia.

22. In relation to whether the applicant has a compelling need to remain in Australia, it was submitted that if the applicant cannot remain in Australia, the impact on a local South Australian business would be significant. Bottega Gelataria would face ongoing operational disruption, with a key individual who plays a day-to-day role in business operations needing to be replaced amidst a critical skill shortage in the hospitality industry. It was submitted that the state of the hospitality industry in South Australia is dire, with industry bodies expressing ongoing concerns for businesses due to the lack of staff. The representative referred to an article in which the Adelaide Institute of Hospitality stated that South Australian venues were being forced to close several days each week due to a lack of trained staff and experienced chefs and cooks who left the industry during COVID-19 and never returned.

23. It was submitted that Bottega Gelataria has already been without a Head Gelato Maker since the cancellation of the applicant’s visa on 17 August 2023. It was submitted that Bottega Gelataria uses traditional techniques to handcraft their gelato, which is not the standardised industry approach, and is not a skill that can be easily sourced within the labour market (if at all). It was contended that if the applicant cannot remain in Australia, it will result in a significant loss of expertise and experience that the business will struggle to replace.

24. It was further contended that, in addition to the impact on existing operations, the applicant’s absence would also jeopardise the new Prospect store, which was to be established under the applicant’s guidance, and that the uncertainty surrounding the applicant’s ability to remain in Australia has placed Bottega owner, Adriano Macri, under added stress.

25. The Tribunal has had regard to the statement provided by Mr Macri to the Tribunal and to his oral evidence at the hearing. Mr Macri indicated that if the applicant was unable to remain in Australia, this would have an immense effect on his life as he and the applicant entered a partnership to open a third store. He entered the agreement on the basis that the applicant would invest in the business and manage the day to day running of the store. Mr Macri said he had two other stores to manage and would not be able to operate the third store. It was contended that if the new store falls through, the financial losses attributable would be significant. Preliminary cash flow projections of the new store are anticipated to bring in over $900,000 in revenue in the first year of operations and creation of several new jobs. The Tribunal has had regard to the projected cash flow statement in support this claims as well as the floor plans, fit outs, photographs, and lease documents of the proposed premises.

26. At the hearing, Mr Macri maintained that the applicant’s presence in Australia was critical to the success of the third store. He said the partnership was entered into based on trust. He holds 51% of the shares in the company that operates the business while the applicant holds 49%. He said he has invested most of the funds into the business and stands to lose a lot if the applicant is unable to remain in Australia. Mr Macri said he has a lot of respect for the applicant, he understands the applicant did the wrong thing, but the applicant is remorseful for his actions and wants a chance to prove himself. He said the applicant has a strong commitment to the success of the business and that he was essentially irreplaceable.

27. Having carefully considered the evidence before it, the Tribunal accepts that Mr Macri has invested a large sum of his own funds to expand his existing business operations by establishing a third store. The Tribunal accepts that Mr Macri embarked on this venture with the applicant on the understanding that the applicant would manage the operations of that store as Mr Macri already has two other stores which fully occupy his time. Mr Macri’s support for the applicant was unwavering, he was aware of the applicant’s criminal conviction, but strongly felt that the business venture would provide the applicant with the opportunity to redeem himself and contribute to the community. The Tribunal accepts that there are compelling business, investment, and financial reasons for the applicant to remain in Australia.

28. The Tribunal is satisfied that the applicant has fulfilled the purpose of his travel and stay in Australia. It is also satisfied that there are compelling reasons for him to remain in Australia. Accordingly, it gives weight to this consideration against cancelling the visa.

    The extent of compliance with visa conditions

29. The evidence before the Tribunal indicates that the applicant has complied with the conditions of his previously held visas, including the Subclass 482 visa and the Subclass 491 visa. The Tribunal gives slight weight to this consideration against cancelling the visa.

30. The Tribunal notes that the applicant is currently not the holder of any visa. The Department has not detained the applicant pursuant to s 189 of the Act, and departmental records indicate that the applicant is in regular communication with the Department whilst he awaits the outcome of his application for a Bridging E visa which he lodged on 23 August 2023.

    Degree of hardship that may be caused

31. The applicant and his family have resided in Australia as holders of temporary visas for a period of over four years. The Tribunal has had regard to the submissions detailing the hardship that may be caused to the applicant and his family members if the visa is cancelled.

32. It was submitted that cancellation would cause significant psychological and emotional hardship for the applicant’s spouse, who is currently pregnant and due to give birth in the coming weeks. The Tribunal has had regard to the medical reports and supporting documents relevant to Ms Qejvani’s pregnancy. It accepts the submission that Ms Qejvani ‘s pregnancy has been affected by extreme stress due to the applicant’s criminal offending and the subsequent cancellation of the visas. In her oral evidence, Ms Qejvani expressed her anguish at the situation she finds herself and her family. She said they came to Australia to give their children a good future and they were now at risk of losing everything. She found out she was pregnant only a few weeks after the applicant was charged with the offences and this has taken its toll on her. She had no idea that the applicant was involved with growing cannabis and if she had known she would have stopped him. Ms Qejvani said if the family had to return to Italy that it would be extremely difficult for them as they have no home and no family support. She said they would have to re-establish their residence before they can become eligible to apply for Italian health insurance, which could jeopardise the health of her newborn who will require vaccinations.

33. The Tribunal has also had regard to the letter of support from Ms Qejvani’s general practitioner, expressing concern that if Ms Qejvani’s visa is cancelled that it would affect her emotional well-being and physical outcome, as she is likely to require post-natal care through the public system.

34. The Tribunal accepts that cancellation of the applicant’s visa, and the consequential cancellation of Ms Qejvani and the children’s visas, would cause significant psychological, emotional, and financial hardship for Ms Qejvani.

35. It was submitted that cancellation of the visa would also have a significant impact on the applicant’s daughter. Sofia came to Australia when she was 2 years old and has spent more than two thirds of her life in Australia. She has grown up as an Australian child and, despite her visa status, she has only known Australia as home. It was submitted that Sofia speaks English and has lost most of the Italian she developed and returning to Italy would be very difficult for her. It was submitted that Sofia would need to re-learn Italian and that this would seriously delay and impact her education and development.

36. The Tribunal has had regard to the letter of support from Sofia’s school principal indicating that Sofia is a delightful student who has settled seamlessly into year one. The principal states that if the family were unable to remain in Australia, this would have an extremely detrimental impact on Sofia’s progress by disrupting her learning at such a critical stage in her development. The Tribunal has had regard to the photographs provided of Sofia with her brother, parents, and friends, as well as photographs of her participation in school and other extra-curricula activities.

37. The Tribunal accepts that Sofia is well settled at school and that if she had to leave Australia, she is likely to experience some emotional and psychological stress.

38. The Tribunal has also had regard to the submission that cancellation of the visa would negatively impact the applicant’s two-year-old son, Elia, who was born in Australia and has never lived in Italy. It was contended that an abrupt relocation to an unfamiliar environment has the potential to disrupt his development.

1. Even though Elia is quite young and may not comprehend the circumstances, the Tribunal accepts that his emotional wellbeing may be impacted by the stress that would be experienced by his parents and sister if the visa is cancelled and the family had to leave Australia.

2. The applicant submits that cancellation of the visa would have a severe adverse financial consequence for him and his family because they would have to leave Australia and return to Italy, which would exacerbate the financial hardship they are already experiencing. They would need to devote significant time to finding housing and employment, during which they would face instability and lack a reliable source of income. The family has limited savings due to the considerable costs involved in the applicant’s criminal and immigration proceedings, which has been compounded by the applicant being unable to work since his visa was cancelled on 17 August 2023.

3. In her statement Ms Qejvani stated that the applicant has been the main provider for their family and when his visa was cancelled it left them in financial distress. The cost of their legal fees, for both the criminal and immigration matters were considerable, and they have been left struggling to cover their daily expenses, medical bills and other costs associated with the pregnancy and impending birth of their third child. Ms Qejvani said the anxiety and stress that has come from managing these financial challenges on top of the stress of a visa cancellation has been extremely overwhelming.

4. It was submitted that the applicant has worked extremely hard to secure a senior role at Bottega Gelataria and that he would struggle to find an equivalent position if he had to return to Italy. In his oral evidence, the applicant said they have had to sell many of their belongings, including the family car, to meet their expenses. He said their savings have depleted and, while they can ask for support from family overseas, he is hoping to be able to return to work, focus on the business and give back to the community.

5. The applicant said if they had leave Australia, given their difficult financial position, they would not have the funds to re-establish themselves in Italy and may have to initially return to Albania to reside with their parents. The applicant said that it would be extremely difficult for him and Ms Qejvani to return to Albania as they have not lived there for over ten years.  

6. The Tribunal accepts that cancellation of the applicant’s visa would cause significant financial hardship for him and his family. In Australia, the applicant has secure employment and a business opportunity which would enable him to provide for his family. The Tribunal accepts that the applicant has limited financial resources and that the costs associated with relocating to Italy would be significant.

7. The applicant, Ms Qejvani and their children have established education, employment, social, community, financial and business ties to Australia. The Tribunal accepts that if they had to depart Australia, they are likely to experience significant emotional, psychological, and financial hardship. The Tribunal accordingly gives weight to this consideration against cancelling the visa.

   Circumstances in which ground of cancellation arose

8. The ground of cancellation arose when the applicant was convicted of drug related offences, including cultivate a controlled plant (basic offence), possess prescribed equipment, and abstract or divert electricity from power system. The Tribunal considers the convictions to be very serious. While the Tribunal acknowledges that the applicant’s terms of imprisonment were suspended on a good behaviour bond, the Tribunal nevertheless considers the imposition of a custodial sentence reflects the seriousness of the offences.

9. In oral evidence, the applicant indicated that he does not use drugs, that he does not associate with anyone who takes or supplies drugs and that he has never previously been involved with any drug related activity. When asked how and where he got the idea of setting up a cannabis plantation, the applicant said it was an idea he got from people he worked with. They went out and there was a discussion about growing cannabis and how people can make money. He said he looked on the internet, saw how it was done and thought it was not risky and that he could make some money. The applicant said it was the worst mistake of his life and, if he could turn back time, he would never have made such a bad decision. He said he is very remorseful and extremely ashamed of what he did. He said he could never have imagined that he would do such a thing in his lifetime. It is not the example he wants to set for his children and is not the way he wants to raise them. The applicant acknowledged the seriousness of his offences and said he now understands the impact that drugs have on the community.

10. The Tribunal has had regard to the circumstances of the offence as set out in the sentencing remarks of the Magistrate:

    You candidly admit that there was a commercial motivation for your offending, and I give you credit for that candour. You were a trained chef in Italy and you have migrated to Australia with your family. The costs of your migration to Australia were significant, estimated at $27,000. You arrived in Australia in June 2019, and from the time that you arrived in Australia your wife was only able to work occasionally. You earned little. You not only had the expenses that you had incurred in travelling to Australia but also the expenses in relation to a young child in school. Your financial obligations were your motivation for becoming involved in this offending.

11. In sentencing the applicant, the Magistrate remarked that the applicant is a hard-working man, who is held in very high esteem by his employer and his future ahead of him. It was observed that the applicant had become involved in the offending out of desperation due to his financial position and that he had expressed remorse for his involvement in the offending.

12. The Tribunal has also had regard the opinion provided in the report by clinical psychologist, Dr Benjamin Stewart, in which he states:

    Mr Tabaku understood the wrongfulness of his behaviour and expressed feelings of shame related to his offending due to this and having gone against his and his family’s values. I believed this to be genuine based on the congruent display of dysphoric and ashamed affect when discussing these matters.

    When asked how he felt about his offending, Mr Tabaku said he was ashamed that this behaviour had caused undue stress to his wife and could have significant ramifications for his family. He also felt ashamed that he had acted in a manner that was illegal and inconsistent with his values that his family had instilled in him.

    When asked what was wrong about his offending, he stated that cannabis caused harm in the community, particularly in those with certain vulnerabilities. He stated that he hadn’t thought of this prior to his offending but was now more cognisant of this. He noted that even if the consumers of cannabis, like other substances, were making active choices to use, if this was causing harm then the suppliers of that substance were responsible for that.

13. In assessing his risk of re-offending, Dr Stewart stated that the applicant’s history and presentation does not feature any of the risk factors shown in the research literature to be associated with the risk of recidivism. Dr Stewart indicated that the applicant did not have a history of oppositional or conduct behaviour as a child or adolescent and had no history of adult antisocial behaviour prior to his current offences. He further indicated that the applicant does not have any historical or ongoing ties with gangs, organised crime, or other criminal peers. He noted that the applicant does not have an antisocial personality style that is associated with offending.

14. Based on the sentencing remarks and Dr Stewart’s clinical assessment, as well as the Tribunal’s observation of the applicant and assessment of his evidence at the hearing, the Tribunal is satisfied that the applicant has taken responsibility for his offending and has demonstrated genuine remorse for his criminal conduct. The Tribunal further considers that the risk of the applicant engaging in similar conduct in future is low.

15. Notwithstanding the above, the Tribunal considers the conduct engaged in by applicant, which led to his convictions, was serious. He was residing in Australia as the holder of a temporary visa, he would have been cognisant of the fact that his conduct was illegal, and it was within his control not to engage in the offending conduct. The Tribunal considers that the circumstances in which the ground of cancellation arose weigh in favour of cancelling the visa.

    Past and present behaviour of the visa holder towards the department

16. There is no information before the Tribunal which raises any concerns regarding the applicant’s past or present behaviour towards the Department. It was submitted that the applicant responded to all correspondence with the Department and has fully engaged with the Department throughout the status resolution process (including attending the Department’s offices and supplying further information for referral to the Department’s character assessment unit). The Tribunal gives this consideration slight weight against cancelling the visa.

    Whether there would be consequential cancellations under s 140

17. Cancellation of the applicant’s visa will result in the consequential cancellation of Ms Qejvani and the children’s visas under s 140 of the Act.

18. It was submitted that the applicant’s family are entirely innocent of any wrongdoing and that the consequential cancellation of their visas has (and would) cause significant hardship and suffering. It was contended that it would be unjust to punish the applicant’s family who are blameless and have not committed any crime themselves, and that a subsequent cancellation under s140 would disproportionately negatively impact on them given they were not complicit in the ground event.

19. The Tribunal accepts that Ms Qejvani was not convicted of any criminal offences and is prepared to accept her (and the applicant’s) evidence that she had no knowledge of the applicant’s offending conduct. In the circumstances, the Tribunal accepts that cancellation of the applicant’s visa, which would result in the consequential cancellation of Ms Qejvani and the children’s visa would disproportionately affect them. For these reasons, the Tribunal gives weight to this consideration against cancelling the visa.

    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

20. If the visa is cancelled, the applicant will be liable for detention and removal from Australia if he is not granted a visa to remain lawfully in Australia or does not voluntarily depart. The applicant will be affected by s 48 of the Act which limits the types of visas he can apply for onshore. The applicant may also be subject to a three-year exclusion period, by operation of Public Interest Criterion (PIC) 4013, which applies to most temporary visas.

21. The Tribunal considers the mandatory legal consequences of cancellation to be intended by the legislation and gives this consideration limited weight against visa cancellation.

    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

22. In relation to the best interest of the children, it was submitted that cancellation of the visa would not in the best interest of the two minor children and that there would be foreseeable negative or adverse impacts on them.

23. The applicant has not claimed, and there is no evidence before the Tribunal which indicates that Australia’s non-refoulment obligations would be breached as a result of cancellation.

24. As to family unity principles, as discussed above, if the applicant’s visa is cancelled, the visas held by Ms Qejvani and the children will be consequentially cancelled, meaning all members of the family unit will have the same visa status. It is open for all members of the applicant’s family to return to Italy (or Albania) and live there together. Cancellation of the visa would therefore not result in the family being separated.

25. Having regard to the applicant and Ms Qejvani’s contention that their children are settled in Australia, have made friends and that it would be devastating for them if they had to leave, the Tribunal accepts that it is not in the best interest of the children for the visa to be cancelled. This is particularly the case for Sofia who has commenced school and may be more adversely impacted by the cancellation. The Tribunal considers therefore that the best interests of the children weigh against cancellation of the visa. The Tribunal is mindful that the best interest of the children is a primary consideration and has given it due weight in its overall consideration of the various factors.

    If a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

26. The visa that is under consideration in this case is not a permanent visa, it is a temporary Skilled Work Regional visa. However, the Tribunal has considered the evidence provided indicating that the applicant has strong employment and business ties to Australia and that Sofia has strong educational ties to Australia. The applicant also gave evidence that they have close friends in Australia and attend their local church. The Tribunal accepts that the applicant and his family have business, educational, community and social ties in Australia and gives this consideration some weight against cancelling the visa.

    Overall consideration

27. The Tribunal has considered the evidence before it and weighed up the relevant circumstances. The most significant factor in favour of cancellation is the circumstances which led to the applicant being convicted of serious criminal offences. Nevertheless, the Tribunal considers that the applicant is genuinely remorseful for his offending conduct and that the risk of him reoffending is low. The applicant desperately wants the opportunity to redeem himself and demonstrate that he can be a productive and contributing member of the Australian community. If the applicant remains in Australia, he will have the opportunity to pursue a legitimate business endeavour with Bottega Gelataria and provide financially for his family. If the visa is cancelled, the Tribunal considers the hardship that may be experienced by the applicant and his family members, particularly his spouse and children who played no part in the applicant’s wrongdoing, would be significant. Even though cancelling the visa would not result in the applicant and his family being separated, the Tribunal considers cancellation of the visa would not be in the best interest of the applicant’s children. In balancing the competing circumstances, the Tribunal considers the totality of circumstances against cancellation outweigh those in favour of cancellation.

28. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    DECISION

29. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 491 - Skilled Work Regional (Provisional) visa.

30. The Tribunal has no jurisdiction with respect to the other applicants.

    R. Skaros
    Senior Member