1508549 (Migration)

[2015] AATA 3887

1508549 (Migration) [2015] AATA 3887 (16 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Subash Shrestha

CASE NUMBER:  1508549

DIBP REFERENCE(S):  BCC2015/1376026

MEMBER:Karen Synon

DATE:16 December 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 16 December 2015 at 7:19pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 June 2015 made by a delegate of the Minister for Immigration to cancel the 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) on the basis that the applicant had not complied with Condition 8107(3)(aa). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant applied for review of the decision to cancel his visa on 25 June 2015 and provided a copy of the primary decision to the Tribunal.

4. On 9 September 2015, in accordance with the provisions of s.359A and s.359(2), the Tribunal wrote to the applicant in the following, relevant terms:

   ·     Departmental records indicate that:

   o    On 2 April 2014 the Department approved a nomination lodged by Jai Nepal Restaurant Pty Ltd for a ‘Chef’ (ANZSCO Code 351311) in your favour with a base annual salary of $55,000 (‘the approved nomination’);

   o    On 11 July 2014 the Department granted you a Temporary Business Entry (Class UC) subclass 457 visa that was subject to mandatory conditions 8107 and 8501.  A relevant extract of condition 8107 is attached for your information;

   o    On 19 May 2015 the Department issued you with a Notice of Intention to Consider Cancellation (‘NOICC’) on the basis that the standard business sponsor who nominated you in your most recently approved nomination for the visa, Jai Nepal Restaurant Pty Ltd, notified the department in writing on 19 December 2014 that you had never commenced employment and this information suggested that therefore you had not commenced the employment for which you were sponsored within 90 days of arriving in Australia and, therefore, that you had not complied with paragraph 3(aa) of condition 8107:

   §  In particular, your sponsoring employer, Jai Nepal Restaurant Pty Ltd, informed the Department in writing that you had never commenced employment with it;

   §  The occupation listed in the approved nomination was not an occupation specified in the relevant instrument and, therefore, as the holder of your subclass 457 visa you can only lawfully work for either Jai Nepal Restaurant Pty Ltd, or an associated entity;

   §  The Department also invited you to indicate why you thought the ground for cancellation did not exist and to put forward any reasons why you felt your visa should not be cancelled;

   §  You did not respond to the NOICC.

   This information is relevant to the review for the following reasons:

   ·     The Tribunal may find that your occupation, ‘Chef’ (ANZSCO Code 351311), is not a specified occupation for the purposes of paragraph 8107(3A);

   ·     Consequently, the Tribunal may find that you must meet the requirements of paragraph 8107(3)(aa) and/or paragraph 8107(3)(b);

   ·     Given the information before it, the Tribunal may find that during the period you have held your subclass 457 visa you had ceased your employment for more than 90 consecutive days; and/or that you did not commence ‘that work’ within 90 days after your arrival in Australia;

   ·     As a result, the Tribunal may find that you did not comply with paragraph 8107(3)(aa) and/or paragraph 8107(3)(b) of your subclass 457 visa and that, therefore, there is a ground for cancellation of your visa under paragraph 116(1)(b) of the Act (attached); and

   ·     Unless the Tribunal is satisfied that it should exercise its discretion not to cancel your subclass 457 visa;

   ·     Then, if the Tribunal makes these findings then it would have no option other than to affirm the decision under review.

   You are invited to give comments on or respond to the above information in writing.

   Invitation to provide information

   Subsection 359(2) of the Act allows the Tribunal to invite a person to give it information that is relevant to the review of a decision.  Accordingly, the Tribunal now invites you to give the following information:

   ·Information that confirms for the purposes of the exercise of the Tribunal’s discretion regarding the cancellation of your subclass 457 visa:

   o    reason and extent of your breach of visa condition 8107;

   o    the degree of hardship that may be caused to you;

   o    the circumstances in which the ground of cancellation arose;

   o    your past and present conduct towards the department;

   o    any mitigating, compassionate and compelling factors;

   o    whether any international obligations would be breached as a result of the cancellation;

   o    the impact on any victims of family violence; or

   o    any other relevant matters you feel the Tribunal should take into account.

5. The applicant responded on 23 September 2015 with the following statement:

   My 457 visa was approved on 02/04/2014.

   As per plan I was supposed to start working for the employer who nominated me.  Being a qualified and experienced chef I had full intention to work in Australia in the nominated occupation.  After my visit was approved when I approached the employer to start work my start days were delayed.  I was not sure when the employer will have me in for work.  We also had disagreement in the terms and conditions of employment we signed on the employment contract.  As the disagreements remained on pay/conditions and my skills, attitude changed from the employer thus, I was not able to start full-time work as intended.

   My intentions were to work for an employer and get an experience so that when I return home I would have skills and experience which I can make good use of by opening my business or working for the best restaurants.

   After the disagreement with the employer I was not sure what to do.  I still had hope that the disagreement on pay and conditions would be resolved.  Days passed and months passed but no progress was made.  So I gave up hope and started looking for work with a different employer.

   I was aware that I should only work for nominating employer.  I started searching for job as a chef where I could utilise my skills and experience and grow.  I have been unfortunate in finding an employer who is ready to sponsor me straight away.  All the employer I came across wanted me to work for few months before they could make a decision on my future employment.  I do not have the time as well my visa condition did not allow me to work for anyone without a nomination approval.

   Because of my visa condition did not allow me to work for any employer I was not able to get a job and be sponsored.  Restaurants were not prepared to lodge a nomination application without me working for them few months.

   I continued looking for an employer but could not find until recently.  One employee was willing to hire me and was also willing to nominate me for the position of chef.  As the employer was preparing for a nomination application I received an intention to cancel my visa.  I was not sure what to do and how to react as leaving Australia for now sent a shameful act in front of my family at that time.  I feel I have been betrayed by my employer was not able to find an employer.

   I am a skilled professional academically qualified and trained in Australia with the necessary skills to perform duties of chef.  I have always abided by the visa condition since I arrived here on a student visa.  I would like to humble request to give me an opportunity to apply for another visit in Australia will stop the situation I am in is because of events which were not in my control.  Thus, I kindly request to reverse cancellation and allow me to apply for another visa in Australia.

6. The applicant appeared before the Tribunal on 16 December 2015 to give evidence and present arguments.

7. The applicant was represented in relation to the review by his registered migration agent.  He did not attend the hearing.

8. At the hearing the Tribunal invited the applicant to provide evidence and arguments in relation to whether the grounds for cancellation exist and whether the Tribunal should cancel his visa.  In summary he provided the following relevant evidence:

   He did not commence employment with Jai Nepal Restaurant because the owner did not give him a job and could not pay him the agreed $57,000 salary.  He had worked there for 3 days, in about June 2014, before his 457 visa was granted but after his 457 was granted he phoned him the same day, said he had the visa and asked when he should start work.  The owner told him he did not have a job for him at that stage and to wait for a week.  The applicant phoned him again a week later when the employer told him he could not give him a job and he should go somewhere else.  The applicant has no documentary evidence of this in the form of letters, emails or text messages; these were all oral discussions.

   Asked if he contacted the department at all following this the applicant said no.  Asked why not the applicant responded “don’t know”.  He said he spoke to his lawyer on approximately 22 July 2014 and he advised him to find another sponsor.  He said he tried to find another sponsor and worked at The Local Burger Company at its Docklands branch.  He said this company was based in Brunswick and the owner is Graeme.  He said he was paid in cash and worked on casual basis for between 15 to 20 hours a week for 3 months from July 2014.  He does not have any written evidence supporting this work.

   After this he tried to find another job and was offered a job at The Post Office Hotel in St Kilda where he worked for 2 months during which time he was paid cash but they wanted to put on the payroll and via tax but he did not want this because he did not did not have rights to work for another person..  He finished at Christmas 2014 and did not work for another 5 months

   In May 2015 he located a girl who worked at a migration agency who said she could get him sponsorship and told him to go to the Glen Waverley hotel.  He went there in June 2015 but they told him he had to work for two companies which would involve in starting at 6am at a cafe in Richmond then travelling directly to Glen Waverley where he would work to 2am.  He said he could do this. 

   He then returned to the same agent who said he could have a job in Western Australia at the Raikas Family Restaurant in Port Hedland.  He went there in July 2015 and worked for two months in July and August 2015.  He was paid cash during this time and was about to be sponsored and given his sponsorship documents on the Monday but on the Friday before this his visa was cancelled.

   The applicant said his agent had advised him that he could not work for anyone else.  Asked why he therefore took on 3 jobs when he understood that he could not work for anyone else the applicant said he had to work for them to get sponsorship.  Asked why he did not respond to the Department’s Notice of Intention to Consider Cancellation letter the applicant said his agent had advised him to “leave it; do not worry about it, you can go for a student visa after this”.  The applicant said that if his 457 visa is cancelled he intends to apply for a student visa to study a Bachelor in Hospitality Management.  He has previously studied in Australia and has: a Diploma of Hospitality; a Diploma of IT Networking; and a Certificate IV in Hospitality.

   The applicant married in Nepal in 2010 and has a 3-year-old daughter.  His wife and child live with his parents in Kathmandu.  His wife’s parents live in the United Kingdom.  His wife was a dependent on his student visa but she only stayed in Australia for about 20 days because she returned to Nepal to give birth.  He has been working for cash to send money to support his wife and child.  His parents provide them with accommodation and food.

   The applicant claimed that the owner of Jai Nepal Restaurant asked for $20,000 for his sponsorship.  He paid $7000 before the visa was granted and entered into an agreement to pay the remaining $13,000 from his salary over the following two years.  The applicant said he knew it was illegal to pay the sponsorship but he needed to get his PR.  The owner of Jai Nepal Restaurant was a friend of a friend.  After the applicant’s visa was granted the restaurant owner asked him for the remaining $13,000 upfront which he did not have.  The Tribunal confirmed with the applicant that he understood at the time that it was illegal to pay for sponsorship with an employer.  He said yes but repeated that it is the only way to get sponsorship.

   Invited to make any submissions in relation to the Tribunal’s discretion not to cancel the visa the applicant said he would agree with the cancellation decision.  He said he just wants to work as a chef in the hospitality industry and wants a chance to prove himself because he wants to get PR.  He has been in Australia for 8 years as a student and while he was a student worked as a chef at a Mexican restaurant in the city, as an assistant cook at the Carlton hotel and as a kitchen hand at the Belmont hotel.  He also worked for Australia Post sorting mail.

   The applicant repeated that his objective is to be granted permanent residency.  He said he was about to apply for temporary residency in 2010 when the rules were changed and before this he had completed 900 hours of voluntary work experience at the Moreland Restaurant.  After the rules were changed he had to go back to being a student again.

   The applicant decided he wanted to stay permanently in Australia in 2010 because things are not good in Nepal including politically.  He has four siblings in Nepal along with this mother and father but he wants to bring his wife and child to Australia.  He just wants one more chance which will provide him with a pathway through which he can achieve his PR goal.

   The applicant has not worked since he was granted his bridging visa He because he has no study or work rights.  During this time he has been living with his friends and getting money from them.  If necessary his parents will support him by loan for his future studies.  He really wants PR so he can stay here and bring his family here.

9. 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

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) (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.

    Does the ground for cancellation exist?

    s.116(1)(b) - non-compliance with conditions

11. 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(3) was attached to the applicant’s visa. This condition relevantly requires that the applicant ‘must commence that work within 90 days after the holder’s arrival in Australia’ and ‘if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutives days’.

12. Amendments to Condition 8107 were made on 1 July 2013 that applied to all visas in effect on that date (Migration Legislation Amendment Regulation 2013 (No.3)).  In relation to the holder of a Subclass 457 visa granted on the basis of being sponsored by a standard business sponsor, condition 8107 requires that the holder must work only in a position in the business of the standard business sponsor or an associated entity of the sponsor (subject to limited exceptions): condition 8107(3)(a)(ii)(B).  The holder must commence that work within 90 days after the holder's arrival in Australia: condition 8107(3)(aa).

13. Departmental policy states that where the holder is already in Australia, they must commence employment within 90 days of the grant of the visa.  If the holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days: condition 8107(3)(b).

14. On the basis of the information before (contained in the Notification of Cancellation and the primary decision, copies of which the applicant provided to it), the Tribunal finds that the applicant was granted a subclass 457 visa on 11 July 2014 to occupy a position at Jai Nepal Restaurant Pty Ltd.  The applicant stated in his submission that the 457 was granted for him to perform the occupation of Chef.  The Tribunal therefore finds, based on the applicant’s evidence, that the occupation listed in the most recently approved nomination for the applicant is that of ‘Chef’.

15. The Tribunal finds that the applicant’s occupation of Chef (ANZSCO Code 351311) is not a specified occupation for the purposes of paragraph 8107(3A).

16. On 19 May 2015 the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa.  The grounds for cancellation were that the applicant had not complied with the Condition contained in paragraph 8107(3(aa) specifically that “the holder must commence that work within 90 days after the holder’s arrival in Australia”.  The primary decision records that the applicant did not respond to the NOICC.

17. The applicant’s written and oral evidence is that he did not commence employment in his most recently approved nomination for Jai Nepal Restaurant Pty Ltd.

18. The applicant gave oral evidence that when he approached his proposed employer on the day his 457 visa was granted he was told there was no work available and to come back in a week.  After a week passed he was told he could not be given a job and that he should go somewhere else.  Later in the hearing the applicant claimed that the owner of Jai Nepal Restaurant had requested a payment of $20,000 in return for the sponsorship and that the applicant had paid $7,000 before the 457 was granted.  He said that the restaurant owner had then asked him to pay the remaining $13,000 immediately, rather than it coming out of his salary over the 2 years as they had agreed, but he did not have this money.  The applicant gave oral evidence that after this, in July 2014, he commenced 3 month’s casual employment working for The Local Burger Company based in Docklands.

19. This evidence is inconsistent with the written statement the applicant provided to the Tribunal in which he relevantly stated “[a]fter the disagreement with the employer I was not sure what to do.  I still had hope that the disagreement on pay and conditions would be resolved.  Days passed and months passed but no progress was made.  So I gave up hope and started looking for work with a different employer”.  The applicant’s oral evidence is clearly that he did not wait months before looking for work with a different employer and in fact commenced work with another employer in the same month that his 457 was granted, that is July 2014.

20. Based on these inconsistencies and in the absence of any supporting evidence being provided, the Tribunal does not accept the applicant’s claim that he was required to pay $20,000 to secure sponsorship with Jai Nepal Restaurant Pty Ltd and that he paid $7,000 before the visa was granted but could not pay the remaining $13,000 up front.

21. However, notwithstanding these claims and what the applicant did after he failed to commence employment with Jai Nepal Restaurant, it is without contention that he did not commence employment with his sponsor within 90 days or indeed at all after his 457 visa was granted.  The applicant did not dispute in either his written or oral evidence that he did not comply with condition 8107(3)(aa).

1. The applicant has attempted to find, but has not been successful in finding, a standard business sponsor which has an approved nomination of an occupation in relation to the applicant.  The Tribunal is satisfied that the applicant, whose last substantive visa was a Subclass 457 visa that was granted on the basis that he met the requirements of subclause 457.223(4), never commenced his employment and therefore did not commence that work (his employment as a chef) within 90 consecutive days after the 457 visa was granted on 11 July 2014.

2. The Tribunal accordingly finds that the applicant has not complied with condition 8107(3)(aa) of his Subclass 457 visa.

3. For these reasons, the Tribunal is 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.

   Conclusion on whether the ground for cancellation exists

   Consideration of discretion

4. 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

5. The applicant’s evidence is and the Tribunal accepts that he originally came to Australia to study but in 2010 decided that wanted to stay in Australia permanently and that he has been pursuing a path that will lead to permanent residency.

6. However, the 457 visa is a temporary visa designed to allow employers to fill gaps in the Australian workforce and it creates no expectation that the applicant would be able to remain in Australia on a permanent basis.  The purpose of the applicant’s stay in Australia, when granted the 457 visa, was to work full time as a Chef at the Jai Nepal Restaurant.  This purpose no longer exists and the applicant has not been able to find a new sponsor either in the 11 months before his 457 visa was cancelled or in the almost 6 months since it was cancelled.

7. The applicant gave oral evidence that an employer in Port Hedland was about to sponsor him when his visa was cancelled but provided no supporting letters from this employer or any other documentary evidence which supports this assertion.  Further the applicant said he worked in Port Hedland in July and August and that his visa was cancelled the Friday before this business was to give him his sponsorship papers the following Monday.  The Tribunal has serious concerns about this given that the applicant’s visa was cancelled on 19 June 2015 before he claims to have commenced employment in Port Hedland.

8. Notwithstanding the applicant’s stated intention is to acquire permanent residency in Australia, the Subclass 457 visa is a temporary one of limited duration related to working for a particular sponsor in a skilled occupation.  The Tribunal finds that this purpose no longer exists in relation to the applicant.

   The circumstances in which the ground for cancellation arose and the extent of compliance with visa conditions

9. The applicant has not complied with condition 8107(3)(aa)to commence employment with Jai Nepal Restaurant Pty Ltd within 90 days [of the 457 visa being granted].  The applicant did not advise the department of this despite the fact that he had a period of 10 months in which to do so before the NOICC was sent to him on 19 May 2015.  The applicant’s oral evidence was that he knew within 2 weeks of the 457 being granted that he would not be commencing employment in his nominated occupation for his sponsor.  The Tribunal considers that the extent of the non-compliance was significant.

10. Further, the applicant gave both written and oral evidence that he should only work for his nominating employer and that “my visa condition did not allow me to work for anyone without a nomination approval “.  Yet the applicant’s evidence was also that he worked for cash for 3 different employers before his visa was cancelled.  These were: The Local Burger Company; the Post Office Hotel in St Kilda and the Raika Family Restaurant in Port Hedland.  Indeed the applicant’s evidence was that the Post Hotel in St Kilda wanted to put him on the payroll “via tax” but he refused this position because he only wanted to work for cash and because “he did not have the rights to work for another person”.

11. The Tribunal therefore considers that there is also evidence before it of the applicant not complying with the visa condition to only work lawfully in Australia for either the sponsor or an associated entity of the sponsor: condition 8107(3)(a)(ii)(B).

12. The Tribunal asked why the applicant did not report this situation to the Department.  He responded “don’t know”.  He said he sought advice from his migration agent who advised him to find another sponsor.  He said no other restaurant would sponsor him unless he first worked for them.  Nevertheless, as discussed with the applicant at the hearing, the onus was on him to advise the Department of any change in his circumstances.  He failed to do so.  He also failed to report to the department his claim that the sponsoring employer was demanding money in return for the 457 visa.

13. The Tribunal considers that the applicant has had a very adequate period in which to mitigate the breach by finding employment with another sponsor.  In this respect, the Tribunal notes that the applicant gave evidence that he has tried to find another sponsor however there is no evidence before the Tribunal that there is an approved nomination in relation to the applicant by a standard business sponsor.

14. At the time of the Tribunal's decision, it has been approximately one year and 5 months since the applicant was granted the 457 visa and over one year and 4 months since the applicant knew he would not be commencing employment as a chef with his sponsor.  The Tribunal considers that the applicant has had sufficient time to find a new sponsoring employer and therefore finds that the applicant's failure to commence employment with his sponsor or with a new business sponsor one year and 4 months after he knew he would not be commencing employment as a chef with the Jai Nepal Restaurant represents significant non-compliance and breach of condition 8107.

    Past and present conduct of the visa holder towards the department

15. The applicant did not respond Department’s NOICC.  Nor did he make any attempt to contact the department to advise it that he had not commenced employment with the sponsor.  He said his migration agent advised him to just find another sponsor and to not worry about responding to the NOICC because he could apply for another student visa.  While there is no evidence before the Tribunal that the applicant had previously breached any of the conditions of his various student visas, it nonetheless finds that his conduct towards the department in relation to this 457 visa has not been satisfactory.

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

16. The applicant’s visa was cancelled on 19 June 2015.  When asked at the hearing he said he was the holder of a Bridging visa E with no work or study rights.  The Tribunal asked that a copy of this bridging visa grant letter be forwarded to it because the applicant’s oral evidence that he has a bridging visa does not accord with other information before the Tribunal.  Information provided after the hearing is that the applicant applied today for a bridging visa. However, despite the fact that the applicant, at the time of this decision, does not appear to hold a bridging visa, there is no evidence before the Tribunal that cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation.

    Whether there would be consequential cancellations under s.140

17. There is no evidence that there would be consequential cancellations under s.140 of the Act.

    Whether any international obligations would be breached as a result of the cancellation

18. There is no evidence before the Tribunal regarding this matter.

    Degree of hardship that may be caused to the visa holder and family members

19. The Tribunal accepts that the visa cancellation would cause some hardship to the applicant who has lived in Australia since 2008 although he has spent approximately 8 months outside Australia since that time.  The applicant is very keen to stay here and pursue a path to permanent residency.  The applicant has, in the past, worked to send money to his wife and daughter in Nepal however his evidence is that he has not worked for the past 6 months.  

20. The applicant claimed that things are not good in Nepal including politically but did not advance claims of any particular problems he would face there.  The applicant is 33 years old and has skills and qualifications as a Chef and the Tribunal is satisfied that he would be able to re-establish himself in Nepal despite his claim that things are not good there.  While the Tribunal acknowledges that the applicant may have a more difficult life economically in Nepal his evidence is that his parents and sisters all live in Nepal and that his wife and daughter live with his parents.  While a visa cancellation may mean that the applicant would have to return to Nepal, he held a temporary 457 visa.  The Tribunal finds that despite his stated goal of permanent residency the applicant would not have had a real expectation that he would be able to remain in Australia permanently on the basis of holding a 457 visa alone.  On the basis of the evidence before it, the Tribunal does not consider that the visa cancellation will cause such hardship as to warrant the exercise of its discretion not to cancel the visa.  The Tribunal notes that the applicant has indicated that should his 457 visa be cancelled he will apply for another student visa to undertake a Bachelor of Hospitality Management.

Any other relevant matters raised by the visa holder

1. The Tribunal has also considered if any of the other matters raised by the applicant either individually or cumulatively satisfy the Tribunal that it should exercise its discretion not to cancel the visa.

2. The applicant, in his written response said he wants to work in Australia to gain experience so that when he returns home he will have the skills and experience to open his own business or work for a good restaurant.  He directly contradicted this evidence at the hearing when he said his intention is to stay in Australia permanently and that he wants to work here as a chef and prove himself and that this will be the pathway through which he will achieve his PR goal.  He said he wants one more chance to get a job and get PR and bring his family to Australia.  Therefore the Tribunal does not accept that the applicant’s purpose in seeking to stay in Australia is to gain experience to prepare him for a return to Nepal but that rather, consistent with his oral evidence, he wants to find a way to work in Australia so that he will gain his permanent residency.  The applicant also stated in his written response that leaving Australia seemed like a shameful act in front of his family and at the hearing said that things are not good in Nepal including politically and that he wants to work in Australia to support his wife and child.

3. The Tribunal accepts that should the applicant have to leave Australia he may feel some shame before his family and that his intention in seeking to stay in Australia is to gain employment and permanent residency and ultimately to bring his wife and child to Australia.

4. The Tribunal has taken into account all of the available evidence in this case.  Having considered all the circumstances the Tribunal is not persuaded that it should exercise its discretion not to cancel the visa.  In this case the Tribunal has found that the applicant breached condition 8107 by not commencing work with his sponsor within 90 days of his visa being granted or indeed at all and is not satisfied that any of the matters raised by the applicant or evident on the material before it, either individually or cumulatively, is sufficient for the Tribunal to exercise its discretion not to cancel the visa.

5. Even if the applicant’s 457 visa were not cancelled, the applicant would be unable to continue to meet the requirements for a Subclass 457 visa, given he does not have a sponsor and an approved business nomination in relation to the applicant.  It is a requirement of cl.457.223(4)(a) that there is an approved nomination of an occupation in relation to the applicant by a standard business sponsor and the nomination has not ceased.

6. The Tribunal acknowledges that the applicant has attempted to find a new sponsor however in doing so he has worked for cash for at 3 different employers.  Despite this he has not been successful in obtaining a new approved nomination.  The Tribunal accepts that cancellation of the visa would cause the applicant some hardship but is not satisfied that the hardship will be serious.  He can return to Nepal where his wife, child, parents and siblings live and where he lived until he first came to Australia.

7. Having regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa.  The Tribunal finds that cancelling the applicant's visa is the correct and preferable decision.

   DECISION

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

   Karen Synon
   Member