Regional Skilled Visa Cancellation

Hetiarachchi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1354 (Member: The Hon. Dennis Cowdroy AO QC)

Background: 

  • Resided in Australia for 24 years 
  • Constant employment since he came to Australia 
  • Extensive traffic infringement notices which have been sporadic and taken place over more than 10 years 
  • False statements on arrival cards 
  • False statements to tribunal 
  • Applicant’s wife and children 
  • Extensive character references 

The Member cites Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 at [45]: 

“The applicant’s previous driving offences may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road uses “go to the essential safety of the community”: see Apire and Minister of Immigration and Border Protection [2014] AATA 193 at [16]. Other parts of his criminal history are perhaps more serious than his driving/traffic convictions. But, his failure to understand right from wrong when operating a motor vehicle – be it drinking and driving, driving without a licence, or driving an unregistered vehicle – can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.” 

The Tribunal affirms the decision under review. 

 

MSXY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1435 

 At [47] and [48], the Tribunal notes: 

In over ten years of marriage, the only thing that has led to violent conflict between the Applicant and his partner was her suspicion that the Applicant was having an affair and the Applicant’s inability to cope with her anger and accusations. The Applicant and his partner have reduced the chances of that contingency occurring again, and his partner has the insight to deal with any future suspicions of that nature in a better way. Given she previously told the police that the Applicant had committed a serious crime that he did not commit, and this is the sort of thing that could cause heightened distress and conflict within a relationship, I asked the Applicant how he would react if his partner again accused him of a crime he did not commit. He indicated that he was certain that she would not do that again because they have a more loving relationship now. She made that allegation in the context of her suspicion that the Applicant was having an affair. She has resolved to deal with suspicions like that in a more mature manner in future. I consider that the risk that an emotionally charged situation like a false allegation or a suspicion of an affair is low. The risk that the Applicant would react with aggression or violence if that contingency occurred is also low. Accordingly, I think the chance that the Applicant will commit further offences against her is minimal. 

The Applicant has not offended against any other person. Their marriage seems solid and they both wish to stay together, making it unlikely that he will re-partner. There is not more than a minimal chance that the Applicant would offend against anyone else. 

The Tribunal is not satisfied that there is more than a minimal or remote chance that the applicant, if allowed to remain in Australia, could engage in criminal conduct. 

He does not fail the character test under section 501(6)(d)(i) of the Act. 

The Tribunal sets aside and substitutes the decision. 

 

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