1503548 (Migration)

[2016] AATA 3566

1503548 (Migration) [2016] AATA 3566 (17 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Karanjot Singh
Mrs Navjeet Kaur
Mr Sahibpreet Singh Sodhi

CASE NUMBER:  1503548

DIBP REFERENCE(S):  BCC2014/3006597

MEMBER:Alison Mercer

DATE:17 March 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

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

Statement made on 17 March 2016 at 11:14am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 4 March 2015 made by a delegate of the Minister for Immigration to cancel the first named applicant’s subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) of the Act. The delegate found that the applicant had not only worked in the occupation nominated by his employer, namely as a cook, but had also worked as a taxi driver. The delegate therefore found that the first named applicant had breached condition 8107 of his subclass 457 visa, subparagraph (3)(a)(i) of which states that the first named applicant must work only in the occupation listed in the most recently approved nomination of him. The delegate considered the discretionary factors listed in the Departmental guidelines and found that they weighed in favour of the visa being cancelled.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.  The visas of the second and third named applicants (the wife and son of the first named applicant) were cancelled automatically pursuant to s.140 of the Act as a result of the cancellation of the first named applicant’s visa.

4. The Tribunal received a review application from the applicants on 12 March 2015.  It was accompanied by a copy of the delegate’s decision and an authority by which they appointed a registered migration agent, Mr Ravinder Singh, to be their representative and authorised recipient for correspondence for the purposes of the review application.

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. On 2 June 2015, the Tribunal wrote to the applicants via their agent to invite them to a hearing on 9 July 2015. On 1 July 2015, the Tribunal advised the applicants via their agent that the hearing on 9 July 2015 had to be rescheduled due to the unavailability of the original Tribunal Member, and that they would be advised of a new hearing date in due course.

7. On 23 July 2015, the matter was constituted to a new Tribunal Member, and on 30 July 2015, the Tribunal wrote again to the applicants via their agent to invite them to a hearing on 18 September 2015.

8. The first and second applicants appeared before the Tribunal on 18 September 2015 to give evidence and present arguments. The Tribunal also received written and oral submissions from their agent. The evidence and submissions are referred to where relevant in the Consideration of Claims and Evidence section below.

9. Following the hearing, the Tribunal wrote to the applicants via their agent, pursuant to s.359A of the Act. The Tribunal advised that, in conducting its review, it was to formally invite them to comment on or respond to certain information which the Tribunal considered would, subject to their comments or response, be the reason (or part of the reason) for affirming the decision under review.  The Tribunal noted, however, that it had not made up its mind about the information. 

10. The Tribunal further noted that it discussed with the first named applicant at the hearing on 18 September 2015 information from the Department’s file relating to:

    • information contained in the log provided to the Department by the Taxi Services Commission about the first named applicant’s hours of work; and
    • the grant letter dated 7 March 2013 sent to him advising (in part) that his subclass 457 visa was subject to condition 8107, which required that he work only in the occupation approved in the most recently approved nomination made by his sponsoring employer.

11. The Tribunal attached copies of those documents to its letter and invited the applicants to comment about this potentially adverse information that affected their case, as follows.

12. The Tribunal advised the applicants that the particulars of the information were that:

    • on 9 September 2014, the Department received a letter from the Taxi Service Commission advising that the first named applicant was accredited as a taxi driver from 17 October 2008 (number DC541423) and renewed his accreditation on 20 August 2014;
    • the Commission further advised that he worked for RAJ Trading Pty Ltd driving taxis with registration numbers M 4067 and M 6406; and
    • a log provided by the Commission showing the dates and hours that taxis with these numbers and his accreditation were logged on indicated that the first named applicant drove a taxi between 31 May 2014 and 27 August 2014 for shifts totalling approximately 247 hours and 45 minutes (averaging to approximately 82 hours and 15 minutes per month, or 20 hours and 3 minutes per week over that period).

13. The Tribunal stated that this information was relevant to the review because, subject to their comments, it suggested that the first named applicant’s breach of condition 8107 took place over a 3 month period and involved a significant amount of hours in excess of the total of 60 hours originally submitted to the Department.  The Tribunal further stated that if it found this to be the case, subject to the applicants’ comments or response, then the Tribunal might find that the first named applicant’s breach of condition 8107 was more significant than originally claimed and this might cause it to find that the factors in favour of cancellation of his visa outweighed those against cancellation.  If it did find this, this would be the reason for the Tribunal affirming the decision under review.

14. The Tribunal then advised the applicants that particulars of further information held by it were that:

    ·on 7 March 2013, the Department sent a letter to the first named applicant advising him that he had been granted a subclass 457 visa on the basis of his nominated occupation of Cook for his sponsoring employer, Noodle Hut Halal Pty Ltd;

    ·amongst other things, the letter stated that this visa is subject to condition 8107; and

    ·the letter advised that condition 8107 requires that a primary holder of a subclass 457 visa must work only in the occupation listed in the most recently approved nomination for the visa holder by the standard business sponsor employer.

15. The Tribunal indicated that this information was relevant to the review because, subject to the applicants’ comments, it indicated that the first named applicant was, or should have been, aware that the terms of his subclass 457 visa did not permit external appointment and only permitted him to work as a Cook for Noodle Hut Halal Pty Ltd. The Tribunal stated that if it found this to be the case, subject to their comments or response, then the Tribunal might find that the first named applicant’s breach of condition 8107 was deliberate and this might cause it to find that the factors in favour of cancellation of his visa outweighed those against cancellation.  If it did find this, this would be the reason for the Tribunal affirming the decision under review.

16. The applicants and their agent were invited to comment on this information by 5 October 2015.

17. The Tribunal did not receive any response from the applicants or their agent to the s.359A letter, and has received no further communication from them to date.

18. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. 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)(b). 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.

20. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it (see Brennan J in Re Drake No. 2 (1978-1980) 2 ALD 634). Specifically, the Courts have held that the Department’s Procedures Advice Manual (PAM3) guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant (see for example Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429 and Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492 at [55]).

21. Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant. It has also had regard to the oral evidence from the applicant and his brother at the hearing.

    Background to cancellation of the first named applicant’s visa

22. The delegate’s decision of 4 March 2015, a copy of which was provided to the Tribunal by the applicants, can be summarised as follows:

    ·the first named applicant was granted a subclass 457 Business (Long Stay) visa on 7 March 2013, for which he was nominated as a cook by his employer, Noodle Hut Halal Pty Ltd, a standard business sponsor;

    ·the occupation listed for the first named applicant in the most recently approved nomination for this visa was cook;

    ·the Department received information from the Taxi Services Commission on 9 September 2014 that the first named applicant had been employed as a taxi driver, with accreditation number DC541423 (first issued on 17 October 2008, valid until 14 November 2014), and had worked in that capacity since May 2014 and had applied to renew his accreditation on 20 August 2014 (valid from 18 November 2014 to 18 November 2017);

    ·the Department sent the first named applicant a Notice of Intention to Consider Cancellation (NOICC) on 13 November 2014 setting out this information and requesting a response;

    ·the first named applicant’s agent responded on 28 November 2014 in a written statement asserting that (in summary) the first named applicant’s first child (a son, the third named applicant) was born on 10 October 2013 and this caused the family financial hardship as they did not anticipate the expenses involved in having a first child (estimated at $14,000) and the first named visa applicant was the sole breadwinner. Although the first named applicant was able to borrow $6,000 from a colleague, there were still significant bills to pay, including $8,000 from the hospital at which his wife gave birth. The first named visa applicant therefore began driving taxis in May 2014 outside his regular employment as a cook at Noodle Hut Halal Pty Ltd.  He drove taxis for an estimated 60 hours only and thus the breach was minor in nature such that cancellation of his visa would be unreasonable.  His family relied upon him;

    ·the applicant was located at Noodle Hut Halal Pty Ltd in May 2014 working on the cash register, and not as a cook, in breach of his sponsoring employer’s obligations, and thus little weight was given to the interests of the employer in considering whether or not to cancel the first named applicant’s visa;

    ·the delegate did not consider the breach to be minor in view of the hours worked by the first named applicant as a taxi driver in breach of condition 8107 of his subclass 457 visa as she considered the 60 hours in total estimate to be significantly understated;

    ·it was acknowledged that the first named applicant was the sole breadwinner and that cancellation of his visa would cause the family financial hardship;

    ·there was no evidence that cancellation would lead to the first named applicant or his family being removed from Australia in a way which would breach Australia’s non-refoulement obligations;

    ·while it was accepted that the birth of a first child could be expensive, the delegate did not find this to be an exceptional occurrence, nor did she accept that this factor outweighed the obligation to comply with the terms of the subclass 457 visa granted to the first named applicant; and

    ·the factors in favour of cancelling the visa outweighed those against cancelling the visa.

    Review application

23. At the hearing on 18 September 2015, the first named applicant confirmed that he worked as a taxi driver while holding a subclass 457 visa subject to condition 8107, for which he had been nominated as a cook by Noodle Hut Halal Pty Ltd.

24. The first named applicant told the Tribunal that the nomination was approved, and he was granted a subclass 457 visa, in early March 2013, then 1 or 2 weeks after this, he and his wife found out that she was pregnant.  As a condition of the subclass 457 visa application, the first named applicant had taken out health insurance with Bupa in February 2013, and they assumed it would cover some, if not all, the costs of the pregnancy.  However, they did not realise at that time that the details of Bupa health insurance policies for temporary residents had changed in that period and imposed a 12 month waiting period for claiming any pregnancy or birth-related experiences.  The first named applicant said that he only realised that this was the case in June or July 2013, when he got a letter from Sunshine Hospital, where his wife was due to give birth, indicating that the charges would be $8,000 and that none of this was covered by the Bupa policy.  The first named applicant said that he borrowed $6,000 from a colleague, Hafiza, to meet this cost, which he paid in instalments.  Hafiza allowed him to repay the $6,000 over 6 to 12 months in instalments and did not charge any interest. 

25. In response to the Tribunal’s query, the first named applicant confirmed that his salary as a cook at the time was $52,000, or $847 per week net. This salary was fine to meet the expenses of him and his wife, but the out of pocket expenses for the pregnancy and his son when he was born stretched him financially.  The first named applicant confirmed that he was the sole income earner in his family.  He has no other family members in Australia. Of his family in India, his mother is widowed and relies on his financial support, while his younger sister is married with her own family.  The first named applicant said that when he was working, he generally transferred $100 to $200 per month to his mother but has not been able to do so since his visa was cancelled.

26. The first named applicant said that for the first year of his employment with Noodle Hut Halal Pty Ltd, he only worked as a cook.  In response to information on the Department file (also referred to in the delegate’s decision) that, during a site visit in May 2014, Department officers had found him working on the cash register at the restaurant, the first named applicant said that this was a one-off incident.  The manager, who normally did this, was in the kitchen training a Malaysian cook who had just started and who did not speak English.  The manager was able to do this as he was Malaysian as well.  He asked the first named applicant to take over the cash register for a short period.  This was around 1pm, the busiest time of day for the restaurant.  The Department officers arrived then.  He explained this to them, and then demonstrated to them that he usually worked there as a cook.

27. The first named applicant confirmed that he ceased employment at Noodle Hut Halal Pty Ltd in or about March 2015, once his visa was cancelled.  He has been granted a bridging visa, without permission to work.  He and his wife have been managing financially with a loan of around $2,000 from friends and $5,000 sent to them by the second named applicant’s parents in India.  In relation to this, the first named applicant said he never asked his wife’s parents for financial assistance when she was pregnant and their son was born as, culturally, it is not acceptable for a son-in-law to do so.  His wife did so recently only because he could no longer work at all due to the visa cancellation.

28. The first named applicant said that he decided to start driving a taxi at night to meet the expenses incurred during his wife’s pregnancy and after the birth of their son.  He was already accredited to drive taxis as he obtained accreditation in 2008 while he was a student.  This lasted until November 2014. He applied to renew this in August 2014 because it cost $25 to renew it before the expiry date, whereas if it lapsed and he had to reapply, it would have cost $900 and $1,000 and he would have been required to do a 2 week course.

29. The first named applicant said that he started driving in May 2014. It was for a taxi depot.  He confirmed his driver accreditation number and the taxi registration numbers provided in the letter from the Taxi Services Commission to the Department dated 9 September 2014 as belonging to him and being the taxis he drove for the depot.  He said that he generally did a Saturday evening/night shift of 10 to 12 hours, and then sometimes a Friday evening and/or another weekday evening shift for 2 to 3 hours. He estimated that this was about 40 to 45 hours per month.  In response to the Tribunal’s query, the first named applicant confirmed the submission of his agent to the Department (repeated in the agent’s submission to the Tribunal) that he worked 60 hours in total. During this time, he continued to work for Noodle Hut Halal Pty Ltd as a cook.  His hours there were 11am to 9.30pm on Mondays and Tuesdays and 8.30am to 3.30pm on Thursdays and Fridays. He did not work there on Wednesdays or the weekends.

30. The Tribunal indicated that it had reviewed the log provided by the Taxi Services Commission, which gave the dates and hours that the applicant worked.  The Tribunal stated that its preliminary calculation was that the first named applicant had worked between 31 May 2014 and 29 August 2014, for approximately 247 hours and 45 minutes, which averaged out to approximately 20 hours per week, over a 3 month period. It observed that this was significantly more than 60 hours in total.  The first named applicant confirmed that he worked Saturday evenings and at least 1 other night per week, and conceded that this would add up to more than 60 hours in total for the approximately 3 month period in question. He reiterated that he had only driven for this period to reduce his financial burden and had still worked for Noodle Hut Halal Pty Ltd as a cook in this period.  He had not breached any other condition of his subclass 457 visa nor his previous subclass 485 and 572 student visas.

1. The Tribunal asked the first named applicant whether he was aware that he was breaching condition 8107 by driving a taxi in addition to working in his nominated occupation.  He said that he was not fully aware that he was. Asked to clarify, the first named applicant said that he remembered receiving the grant letter for his subclass 457 visa, but that was in March 2013 and he did not remember its contents that well by April 2014, when he decided to drive taxis again.  The Tribunal read out to the first named applicant the contents of the grant letter, obtained from the Department’s electronic records, which clearly indicate that he was subject to condition 8107 and was permitted only to work in the nominated occupation in the most recently approved nomination by his standard business sponsor employer.  The first named applicant said that in April 2014, he could not remember whether he was prevented from doing any other kind of work if he did it while still working for his nominating employer.  The Tribunal asked him whether he checked the grant letter, his visa label or asked the Department or anyone else about what conditions applied to him regarding external employment.  The first named applicant said that he didn’t check with anyone.  He wasn’t thinking straight due to the financial pressure.  In addition to the money he owed to Hafiza for the costs of the pregnancy and birth and afterwards, he also had to pay around $1,000 to sponsor his mother to visit from India.  He had to pay this in July or August 2014.  His mother was then granted a 6 month visa and came to stay with them in November 2014 for 6 months. Their son (the third named applicant) went to India with her when she returned, as the first and second named applicants were concerned about being able to support him financially after the first named applicant’s subclass 457 visa was cancelled.  This was a hard decision for him and his wife to make.

2. The first named applicant told the Tribunal that he first came to Australia in 2007 as the holder of a subclass 572 visa.  He successfully completed a Certificate III and IV in Commercial Cookery and then a Diploma of Hospitality Management. He applied for and was granted a subclass 485 (Graduate Skilled) visa and worked as a cook in Dingley Village while holding this visa. He was then nominated and sponsored as a cook by Noodle Hut Halal Pty Ltd for the subclass 457 visa in 2013.  

3. The first named applicant said that he has studied, qualified and worked in Australia in his occupation for 8 years.  He has little to return to in India and it would be a financial backward step for him and his family if they had to now go back there.  He is about to turn 35 and it would be very hard to re-establish himself there. There are not many hospitality positions in or near the village he comes from in northern Punjab, as it is an agricultural area.  He has never lived or worked in a big city in India.  It would be hard for them to relocate to one.  He is responsible for supporting his widowed mother, his wife and his son.  There are far more employment opportunities for him in Australia as a cook. The Tribunal noted that the evidence given by other Indian applicants in student cases was that they wished to obtain Australian qualifications because it would enable them to be more competitive in the Indian job market and/or set up their own restaurant or café.  The first named applicant reiterated that there are few opportunities in hospitality where he is from in India and working as a taxi driver would not be sufficient for him to support his family.

4. The first named applicant said that he came here for a brighter future for himself and his family.  It would be very hard for them to return to India.  He hoped to apply for permanent residence.  In response to the Tribunal observing that he had held temporary visas only during his 8 years in Australia, none of which guaranteed him permanent residence, the first named applicant said that he was confident that he could find an employer who would sponsor him for permanent residence here. He was planning to do so when his visa was cancelled.

5. The first named applicant and his agent confirmed that he remains on a bridging visa E at present, and has no fears of harm if he had to return to India, apart from his fear of financial hardship.

6. The applicants’ agent relied on his written submission given to the Tribunal at the commencement of the hearing, and summarised his main points as follows:

   ·the first named applicant made a mistake in working as a taxi driver while working as a cook for Noodle Hut Halal Pty Ltd, and freely admitted this;

   ·however, he was remorseful and the breach itself was short-term and was not at the expense of fulfilling his employment duties to his nominating employer;

   ·the first named applicant was not motivated by greed to work as a taxi driver, but by a need to earn additional funds for the expenses associated with his wife’s pregnancy and his son’s birth, particularly since he had borrowed money from a friend to meet these expenses;

   ·these costs were higher than anticipated due to changes to Bupa’s temporary resident health insurance cover in 2013, which excluded pregnancy related expenses for 12 months, when these had previously been covered by Bupa policies;

   ·the relatively minor nature of the breach should be contrasted to the first named applicant’s achievements in study and work in Australia, the length of time he had spent in Australia and the hardship his family would experience if his visa were cancelled.

   Does the ground for cancellation exist?

7. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance, condition 8107 was attached to the applicant’s visa. This condition requires of subclass 457 visa holders who are the subject of a standard business sponsorship that the holder must only work in the occupation listed in the most recently approved nomination for the holder and only for the sponsor who nominated the most recently approved nomination (see 8107(3)(a)).

8. Based on the evidence before it, the Tribunal finds that the occupation listed for the first named applicant in the most recently approved nomination for a subclass 457 visa was Cook.  He had been sponsored to work in this occupation by Noodle Hut Halal Pty Ltd.

9. In his oral evidence and written submissions, the first named applicant admitted that he drove taxis for RAJ Trading Pty Ltd while employed by Noodle Hut Halal Pty Ltd.  Initially, he agreed with the delegate’s estimate that he drove taxis for approximately 60 hours over a period of approximately 3 months in 2014.  However, he was subsequently informed that the Victorian Taxi Directorate log for the taxis driven by him indicated that he drove taxis for approximately 247 hours between 1 June 2014 and 21 August 2014.  He did not deny this.

10. Based on the evidence before it, the Tribunal is satisfied that the first named applicant did not work only in the occupation listed in the most recently approved nomination of him and did not work only for his nominating employer.  Accordingly, it finds that he did not comply with condition 8107(3)(a).

11. The Tribunal is therefore satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

12. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel to and stay in Australia

13. The subclass 457 visa is for skilled workers from outside Australia who have been sponsored and nominated by an employer to work in Australia on a temporary basis.  The purpose of the visa is to enable an employer to sponsor a skilled worker if they cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations.

14. The Tribunal is satisfied that the purpose of the visa applicant’s stay in Australia was to work for an Australian employer, Noodle Hut Halal Pty Ltd, as a Cook on a temporary basis. This occupation was one of a limited number of occupations listed by the Minister as an occupation that could form the basis of an approved nomination.  The occupation of Taxi Driver is not, and the Tribunal gives significant weight to this consideration.

    The reason for and the extent of the breach

15. As noted above, the first named applicant conceded that he worked for approximately 247 hours driving taxis over a period of nearly 3 months between 1 June and 21 August 2014 after being granted a subclass 457 visa as a Cook.  When asked about his knowledge of condition 8107 at  the hearing, he indicated that he was not fully aware of it, despite receiving a visa grant letter in 2013 clearly setting out the terms of condition 8107. Moreover, he said that he did not check with anyone before recommencing employment as a taxi driver after being granted a subclass 457 visa whether he was permitted to do so or not.  The Tribunal considers his explanation to be disingenuous and it is satisfied that the first named applicant was aware that his subclass 457 visa was subject to condition 8107 but chose to breach this condition.

16. The Tribunal considers that the applicant breached condition 8107 on multiple occasions in 2014 by driving taxis, and considers this non-compliance to be significant as the temporary business entry scheme is predicated on visa holders being employed by approved business sponsors in approved nominated occupations only.

17. The Tribunal has considered the first named applicant’s explanation that he only took up taxi driving again in 2014 due to financial pressure, and that he continued to work for Noodle Hut Halal Pty Ltd as a Cook, as well as driving taxis, and that he continued to be employed by Noodle Hut Halal Pty Ltd until the cancellation of his subclass 457 visa.

18. The Tribunal accepts that the first named applicant did not abandon his employment in his nominated occupation but rather worked in another occupation as well as working for his nominating employer.  However, as noted above, the Tribunal’s view is that the temporary business entry scheme is predicated on visa holders being employed by approved business sponsors in approved nominated occupations only, and not in occupations that are not approved for these purposes.

19. The Tribunal accepts that the first named applicant and his wife incurred approximately $8,000 in costs associated with her pregnancy and the birth of their son in September 2014 as their temporary residents’ insurance policy did not cover these costs. He also indicated that he paid $1,000 for his mother to visit Australia after the birth of his son and that he generally sent her money when she was in India to assist with her support.  While the medical costs of $8,000 is not an insignificant sum, and the Tribunal accepts that the first named applicant was the sole earner for the family, the Tribunal also notes that he was earning $52,000 per year as a Cook and obtained a loan of $6,000 from a friend which was interest free and which he was able to pay back by instalments over a 6 to 12 month period.  The Tribunal therefore considers that there was no pressing need for the first named applicant to have taken on external employment in order to meet these costs.  It also gives weight to the fact that the first named applicant has subsequently borrowed some funds from his parents-in-law.  While the Tribunal acknowledges that the first named applicant was reluctant to utilise this option previously for cultural reasons, it nevertheless considers that it would have been open to him or his wife to approach his parents-in-law earlier for financial assistance rather than him breach condition 8107 by driving taxis.

20. Having considered the reasons put forward by the first named applicant, the Tribunal is not satisfied that the desire to earn additional money to support is a reasonable ground for not complying with the conditions of his subclass 457 visa.

    The degree of hardship that may be caused to the visa holder

21. The Tribunal accepts that having to depart Australia will cause some hardship to the first named applicant but is not satisfied that it would be significant.  The Tribunal does not accept that, as claimed by the first named applicant, he would not be able to re-establish himself in India where the majority of his and his wife’s families live, given his qualifications, employment background and experience.  The Tribunal acknowledges that he may not be able to earn as much as he has earned in Australia but does not accept that this in and of itself constitutes a significant degree of hardship. 

22. The Tribunal notes that the first named applicant’s stated aim was to obtain permanent residence in Australia for himself and his family and that the cancellation of his subclass 457 visa would disrupt this plan. While the Tribunal acknowledges that the first named applicant hoped to obtain permanent residence, this was by no means a guaranteed pathway for him such that it could be said to be an expectation he has lost. The Tribunal gives little weight to this consideration as it is speculative at best.   The fact is that the first named applicant was granted a temporary visa to work in Australia for a limited period.  The Tribunal accepts that the premature cessation of his visa will result in him being unable to take full advantage of that opportunity.  However, balanced against any potential hardship to the first named visa applicant is the fact that he was aware that he held a temporary visa and that this created no expectation or guarantee of permanent residence.

    Circumstances in which the cancellation arose

23. While the first named applicant responded to Departmental inquiries, he did not inform the Department that he had breached condition 8107 and the breach was identified solely as a result of the Department’s investigations.

    The visa holder’s past and present behaviour towards the Department

24. As noted above, the Tribunal considers that the first named applicant knew or ought to have known that his subclass 457 visa was subject to various conditions, including condition 8107.  He received a visa grant letter from the Department in 2013 setting out the conditions imposed on his visa and he failed to check with the Department or any other person (such as his employer or a migration agent) whether he was permitted to take on external work before he began driving taxis in 2014. 

25. On the other hand, the Tribunal acknowledges that the first named applicant has cooperated with the Department since being notified of the Department’s intention to cancel his visa and there is no evidence before the Tribunal to suggest that he breached the conditions on any of his previous visas.

    If the breach relates to a breach of r.2.43(1)(la) by a subclass 457 visa- mitigating, compassionate  circumstances or factors

26. The Tribunal is satisfied that the first named applicant’s visa was not cancelled for a breach of r.2.43(1)(la) and thus this consideration has no relevance in the present case.

    Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

27. The Tribunal is satisfied that the cancellation has resulted in the first named applicant holding a bridging visa while awaiting the outcome of the review application, and that he would not be subject to indefinite detention as a possible consequence of the cancellation, given that he would be entitled to a further bridging visa in the event that he sought judicial review of the Tribunal decision or made acceptable arrangements to depart Australia in the event of an unsuccessful review application.

    Whether there are persons in Australia whose visas would, or may be, cancelled under s.140

28. The Tribunal accepts that the first named applicant’s wife’s visa would be cancelled under s.140 if the cancellation of the first named visa applicant’s subclass 457 visa cancellation is upheld.

29. The Tribunal acknowledges that she will suffer some hardship in having to depart Australia prior to the original expiry date of the subclass 457 visa but for the reasons canvassed above at paragraphs 51 and 52 above, it does not consider that this hardship will be significant, particularly since she and the first named applicant will have the support of their respective families in India and noting that their son is presently residing there with the first named applicant’s parents.

30. The Tribunal accepts that the first named applicant’s son’s subclass 457 visa would also be cancelled s.140 if the cancellation of the first named visa applicant’s subclass 457 visa cancellation is upheld.  Given the first named applicant’s evidence at hearing that his son resides in India with the first named applicant’s parents, the Tribunal find that he is not a person in Australia whose visa would, or may be, cancelled under s.140.  The Tribunal considers that he would suffer little hardship if the visas of his parents were cancelled as he is already settled with family in India.

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

31. There is no evidence before the Tribunal to suggest that this is the case.

    The impact on any victims of domestic violence

32. This factor does not apply in the present case as there is no evidence that it involves any victims of domestic violence.

    Any other relevant matters

33. The first named applicant did not raise any additional matters beyond those discussed above.  The Tribunal was not provided with any evidence to suggest that his nominating employer, Noodle Hut Halal Pty Ltd, has been significantly adversely affected by the cancellation of the first named applicant’s visa.  There is little evidence before the Tribunal to indicate that the employer would not be able to replace the first named applicant with another Cook.  In these circumstances, the Tribunal does not regard the degree of hardship to the applicant’s employer to be a significant factor.

34. Having considered all of the above factors, and the circumstances of the case as a whole, the Tribunal concludes that the factors in favour of cancellation of the first named applicant’s subclass 457 visa outweigh those against.

35. Accordingly, the Tribunal concludes that the visa should be cancelled.

    DECISION

36. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

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

    Alison Mercer
    Member