TABAKU (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Skilled Work Regional (Provisional) (Class PS) visa, Subclass 491, held by the applicant, Mr. Tabaku. The cancellation was initiated following Mr. Tabaku's conviction for cultivating a controlled plant, possessing prescribed equipment, and abstracting electricity. The Tribunal considered the impact of the cancellation on Mr. Tabaku's employment, his business partnership in a regional gelato store, and the potential emotional and financial hardship to his family, including his children.

The primary legal issue before the Tribunal was whether the Minister's discretion to cancel Mr. Tabaku's visa under section 116(1)(g) of the Migration Act 1958 (Cth) had been exercised appropriately. This involved determining if a prescribed ground for cancellation existed, specifically under regulation 2.43(1)(oa) of the Migration Regulations 1994, which relates to convictions for offences. If a ground for cancellation was established, the Tribunal then had to consider whether, in all the circumstances, the visa should be cancelled, taking into account relevant government policy and the specific facts of the case.

The Tribunal found that Mr. Tabaku had indeed been convicted of offences against South Australian law, satisfying the ground for cancellation under section 116(1)(g). However, the Tribunal noted that this ground did not mandate cancellation, allowing for the exercise of discretion. In considering this discretion, the Tribunal had regard to Mr. Tabaku's significant contributions to the regional economy through his employment as a chef and his directorship and partnership in a new gelato store, which aligned with the objectives of the Subclass 491 visa program. The Tribunal also considered the applicant's stated desire to remain in Australia and raise a family, and the potential hardship that cancellation would cause.

Ultimately, the Tribunal concluded that the visa should not be cancelled. It set aside the original decision and substituted a decision not to cancel Mr. Tabaku's Subclass 491 visa. The Tribunal clarified that it had no jurisdiction concerning any other applicants.