1510276 (Migration)

[2016] AATA 4309

1510276 (Migration) [2016] AATA 4309 (26 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammad Hasan Reza Khan

CASE NUMBER:  1510276

DIBP REFERENCE(S):  BCC2015/1529073

MEMBER:Mary-Ann Cooper

DATE:26 August 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 26 August 2016 at 3:14pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 July 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 breached condition 8107(3)(a)(i) which required that he work only in his nominated occupation. 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 appeared before the Tribunal on 9 August 2016 to give evidence and present arguments. The Tribunal also received oral evidence from a director of the business which had nominated him. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi (Indian) and English languages.

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

5. 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

6. 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) which provides that the Minister may cancel a visa if the holder has not complied with a condition of that visa. 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

7. In this instance condition 8107 attached to the applicant’s visa. This condition relevantly requires that the applicant must work only in the occupation listed in the most recently approved nomination in respect of him or her (8107(3)(a)(i)).

8. The most recently approved nomination in relation to the applicant was approved on 6 March 2013, for him to work in the occupation of Production Manager for standard business sponsor, Alpine Valley Flour Mill Pty Ltd. (Alpine Valley).

9. As recorded in the delegate’s decision, a copy of which was supplied with the review application, in cancelling the visa, the delegate was satisfied that s.116(1)(b) grounds existed. The delegate found that condition 8107(3)(a)(i) applied to the applicant’s visa and this condition required that if the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Business (Long Stay)) visa granted on the basis of meeting the requirements of subclause 457.223(2) or (4), he must work only in the occupation listed in that most recently approved nomination. It is recorded that on 9 January 2014 the applicant told the Department in a telephone interview that since October 2013 he had spent between 40 and 50 % of his time operating mill machinery and a further 40-50% of his time repairing mill machinery. He had confirmed that he did not manage or train staff or keep formal records, conduct research or implement new production processes, duties which are all indicative tasks for the role of Production Manager as listed in ANZSCO code133512. On the basis of this information the delegate considered that the applicant had been performing duties more closely aligned with those of a machine and stationary plant operator (ANZSCO Major Group 71) than those of a Production Manager. It was further noted that on 5 May 2014 he had advised the Department that, from the grant of his visa (on 7 May 2013) until October 2013 he had still been engaged in constructing the flour mill. Departmental records indicated that during that time, until 15 October 2013, he had also been employed by another entity, Bansal Engineering. The delegate concluded that the applicant had breached condition 8107(3)(a)(i) and therefore the grounds for cancellation existed under s.116(1)(b) of the Act. After considering whether to cancel the visa, she determined that the grounds for cancelling outweighed those grounds for not cancelling. Consequently the applicant’s visa was cancelled.

10. No submissions or documents were received from the applicant prior to the hearing. In submissions in response to the Department’s Notice of Intention to Consider Cancellation another of the directors of the applicant’s nominating employer wrote, among other things, that  “in relation to his construction duties, Mr. Khan was on a 456 visa working for the Indian company supplier until the mill was erected and ready for handover to the company in October 2013. Practically, Alpine Valley Flour Mill Pty Ltd [the nominating employer] could not employ him as a production manager any earlier because the mill was not ready for production..hence a technical, unknown, unintended and unavoidable breach occurred for a short period which ceased on October 2013 when the mill was handed over and Mr. Khan was employed as a Production Manager.” The director also provided a statutory declaration in which it was stated that the applicant supervised, trained and directed the production staff at the mill and his duties included the mill’s operation, cleaning, safety, packaging and monitoring product quality and output. It was also claimed that he tested and monitored wheat and flour, kept associated records and arranged regular reporting to the directors. A later reference was provided at the hearing from this director, dated 3 February 2016, reiterating the above tasks.  A further statutory declaration was provided from another visa holder, Amrik Singh, who claimed to fill the role of Specialist Mill Technician. He stated that the applicant directed him, monitored the flour mill operation, electrical repair and maintenance, adjusted electronics and PLC components and mentored product quality and output. He further asserted that the applicant supervised the production of the entire flour mill including managing all workers and the production team and “managing flour mill operation, repair, cleaning, safety, record keeping” testing and monitoring wheat. Further documents were provided, including one headed “Wheat at Myrtleford End of Day stock report 21/3/2015”, a “Profit & Loss” for the month ended 30 June 2015, a list of contacts and a document indicating that the applicant had successfully completed HACCP training.

11. At the hearing the applicant told the tribunal that before he came to Australia he had no formal qualifications but had several years’ experience in India working with flour mill machines and welding. He said he had no formal qualifications. He said he came to Australia in 2012 with another Indian company on a subclass 456 visa for the purpose of constructing the flour mill for handover to Alpine Valley. He initially claimed this work finished in September 2013. He said he had applied for the subclass 457 visa in January 2013 and it was granted in June 2013. The tribunal observed that the delegate’s decision indicated it was granted on 7 May 2013. He did not disagree with this date. He claimed that Alpine Valley saw him working and knew he had the experience they needed for their new mill and consequently had sponsored him for the subclass 457 visa. The tribunal noted that the delegate’s decision recorded that he had told the Department in an interview that the mill was still under construction when his subclass 457 visa was granted. He agreed that the construction job was not then finished however later, when the tribunal noted that it was condition of his visa that he worked in the nominated position of Production Manager, he resiled and claimed that during that period the mill had not started operation but he was setting it up. The tribunal further observed that his oral evdeince indicated his experience had been with machinery and welding, not with running a flour mill. He said that in India he had been sent to other mills to check breakdowns and had gained experience as well (presumably in other aspects of flour milling).  When asked what work he had undertaken when he commenced with his nominating employer, Alpine Valley, he said he would start the mill, check machines and supervise other employees to do the work. He said he would read and check protein, make new flours, made new plans and changes to the machines and completed the paperwork.

12. The tribunal noted the delegate’s references to two interviews with the applicant however the applicant said he did not remember too much of those interviews. He maintained that he had told the Departmental officers what he told the tribunal. The tribunal again asked him what he had done in the role. He responded that he used to “make everything” including formal records, research, all reports, what flours would be made, what processing to do, how much in a month and how many sales. The tribunal noted that he did not speak English and asked how he could prepare the reports. He said he knew “that much” [English]. He also maintained that he trained staff and would tell them what to do. He was unable to state how many staff he supervised, but stated there were only 3 fulltime employees, himself and two other persons from India whom he supervised. The tribunal noted that this was not what he was recorded, in the delegate’s decision, as having told the Departmental officers in his interviews. Specifically, he had confirmed he had not kept formal records, researched or implemented new production processes, nor did he manage or train staff.  He acknowledged that there was another Site Manager on site at the beginning. He maintained however that he had trained the casual staff. Again the tribunal inquired how he had done this when he did not speak English. He said the staff only performed tasks such as sweeping and packing flour. He said he operated machinery in the morning for one or two hours then made plans, made new flours, assessed the wheat when it arrived. The tribunal noted that he had said he had experience in flour mills with machinery and welding but he had not indicated he had any experience as a flour miller or baker. He maintained that his 5 years’ experience in India provided him with this knowledge, that he could watch something once and understand it straight away, and that he would check online and watch videos. He said he had undertaken OH&S training and had completed his HACCP course. He claimed that one of the owners explained the course to him in Hindi.

13. The tribunal took the applicant to the ANZSCO indicative tasks for the position of Production Manager. He maintained that he performed all of the tasks listed. The tribunal asked him to give some examples but he was unable to articulate any policies or procedures he had put in place. He said any changes he proposed would be discussed with the owners. The tribunal then handed him two other ANZSCO positions and their indicative tasks and suggested that these tasks might be more indicative of the work he had undertaken. Specifically the positions were Bulk Materials Handling Plant Operator ( ANZSCO code 712912) and a Grain Mill Worker (ANZSCO code 831116). He responded that he also performed these tasks. He then claimed that he and the site manager had managed the mill. Overall, given the contradictions between his oral evidence to the tribunal and his responses at Departmental interviews, as recorded in the delegate’s decision, the tribunal found his evidence inconsistent and unconvincing and, consequently, lacking in credibility.

14. The tribunal then addressed with him the discretionary factors relating to his visa cancellation and these are discussed further below.

15. The tribunal then spoke to one of the current directors of the nominating employer, Alpine Valley. He said that 99% of the project is run from head office in Melbourne, including the planning and communications. He claimed initially that the role of Production Manager is only concerned with production and is not involved in developing plans, purchasing or strategy. He said the applicant was skilled with mechanical failures and producing flour, that he had been ‘on board’ for over a year while the mill was constructed and the directors had decided to retain him. He said the original Production Manager (referred to by the applicant as the site manager) had put everything together and another employee had programmed the machines. When asked when construction was finished, he said around September 30^th 2013. He said the applicant and another sponsored visa holder, Amrik Singh, then had taken over running the machines and producing the flour. He said the type of work done at the factory is purely production and the visa applicant is one of a team that produces flour and deals with mechanical issues. He explained that the mill is different from other flour mills because it is mainly physical work and not run electronically as are other larger flour mills. He claimed the type of work performed by the applicant and the other worker sponsored by the company can only be learned by experience. He said that he would attend the factory once or twice a week and had seen the applicant running machinery, blending grain, milling flour and packing flour. He said there was no supervisor, all the employees were involved in everything. He said the product is ordered by head office in Melbourne and delivered to the mill where the applicant and others, having been told by head office what type of flour to produce, test and mill and pack it. He said they also operate the machines and fix breakdowns. He claimed this was their skill, producing flour and managing breakdowns.

16. The tribunal asked him to describe the organisation structure of the mill during the applicant’s employment. He said he could not remember and that another director had been more involved with the details. He said as far as he was aware the applicant and Amrik Singh had run the machines and produced the flour. The tribunal provided him with a copy of the ANZSCO indicative tasks for the position of Production Manager and asked him to describe if or how the applicant performed any of the tasks listed. He claimed that he monitored production by taking grain samples and testing them and producing the flour. The tribunal observed that the specific task to which he seemed to refer was that of ‘monitoring production strategies, polices and plans’ and asked how the applicant did this. He responded that he would tell the applicant what to produce, for example, course or fine semolina flour, and he would do so. When asked if he could give an example of anything else  that aligned with the indicative tasks, he said that the applicant was “running the whole thing.” He explained that the former director, with whom it seems relationships have broken down, had organised the migration issues and he was just trying to save things.

17. The tribunal noted that the applicant did not speak English and asked how he communicated with other staff, in particular, how he gave instructions and in relation to OH&S issues. The director responded, somewhat inconsistently with his previous evidence, that the applicant’s role was not running the whole project, that it is a team operation, and the employees run it together and get things done between them. He said there are 4 floors of operations and someone is required on each floor. The tribunal observed that it appeared it was a flat management structure and the director responded that it was ‘four or five blokes running machines’ and no-one saying ‘do this or do that’.

18. The tribunal noted that the applicant’s visa had been granted in May 2013 and that the evidence before it indicated he had not been employed in the nominated role at that time because the mill was under construction until October 2013. The director initially maintained that the applicant had been ‘on board’ since May and that the mill was in the process of being commissioned during this time. The tribunal observed that this was not consistent with other evdeince before it. He responded that he could not answer for that three month period (presumably between May and September) but that the lease for the offices had been signed in May 2013. He claimed the mill was being commissioned at that time.

19. The tribunal addressed its discretion in relation to the decision whether to cancel the visa and asked the director if he wished to say anything. He maintained that he could not run the business without the applicant and had found it very difficult to attract and retain staff, stating that they had a recent turnover of 14 staff. He said they currently had a Production Manager working 4 days per week. He confirmed that the company has provided the applicant with onsite accommodation but denied that he was working at the mill. He said he was doing “other things” at a farm around the corner but sometimes came into the mill and slept in the mill.

20. The tribunal referred to the grounds for cancellation and reiterated his earlier evidence in which he had told the tribunal that the mill’s construction was completed in September 2013 and that this suggested the applicant was not employed in the nominated occupation from the date of grant of his visa in May 2013. The director then stated he was unsure about the start date of the mill and he would have to check it. The tribunal allowed until the end of the week for the provision of any further submissions.

21. The results of the Department’s audit, as noted in the delegate’s decision, concluded that the applicant had never worked in the role of Production Manager and instead had worked in a lower level role of machine and stationary plant operator, spending 40-50% of his time operating mill machinery and 40-50% of his time repairing mill machinery. The tribunal found the applicant’s evidence regarding the tasks he had undertaken as contradictory and inconsistent in many respects (paragraph 12). He was unable to give any plausible evidence regarding the tasks he claimed to have performed and these claims were not substantiated or supported by the oral evidence of the nominator’s director. In fact, the director’s evidence tended to confirm the findings of the Department that the applicant worked in a team, producing flour and ensuring the operation of the machinery. Specifically, that his tasks were not performed at the level of a Production Manager but at a lower level.

22. Having regard to the evidence before it, including the applicants responses to the Department as recorded in the delegate’s decision, the Tribunal is not satisfied that the applicant was employed in or performed the tasks of his nominated occupation of Production Manager, if at all, until, at the earliest, October 2013. Given that his subclass 457 visa was granted on 7 May 2013, the tribunal is satisfied that, at least from 7 May 2013 to 1 October 2013, the applicant was in breach of condition 8107, specifically condition 8107(3)(a)(i), of his visa. It therefore is satisfied that the grounds for cancellation exists under s.116(1)(b).

23. 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

24. 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. 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’.

1. The guidelines include factors such as the purpose of the applicant's travel to Australia; the degree of hardship that may be caused by the cancellation to the applicant and other family members; the circumstances in which the ground for cancellation arose; the applicant's past and present behavior towards the Department; whether the cancellation would lead to removal in breach of Australia's obligations under relevant international agreements, including Australia's non-refoulement obligations; and any other relevant matters raised by the applicant.

2. The tribunal has considered matters raised by the review applicant in his interviews with the Department, as recorded in the delegate’s decision, and the oral evidence provided at the tribunal hearing. These are discussed below.

   The purpose of the visa holder’s travel to and stay in Australia; whether the visa holder has a compelling need to travel to or remain in Australia

3. The applicant was granted a subclass 456 visa on 14 May 2012, and the 457 visa on 7 May 2013, for temporary work purposes.

4. The subclass 457 visa is for skilled workers from outside Australia who have been sponsored and nominated by a business 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. The occupation of Production Manager is one of a limited number of occupations listed by the Minister as an occupation that can form the basis of an approved nomination.

5. At the hearing the applicant confirmed that he originally came to Australia for the purpose of building the mill however he said he liked the country and wanted to stay. He said his entire family lived in India and he was their only financial support. The tribunal noted his evidence that he had several years working experience in India and, on this basis, that he presumably would have no difficulty getting employment on his return. He said his father had also worked when he had been in India but was now too old.

6. When the applicant applied for his subclass 457 visa his stay was for the purpose of working as a Production Manager for the nominating employer, Alpine Valley Flour Mill Pty. Ltd. The director of his nominating employer gave evidence that he highly values the applicant’s skills and work capacity. The tribunal accepts that the applicant’s nominating employer hopes to continue its engagement of the applicant should the visa cancellation be set aside.There is however no evidence of an approved sponsorship in relation to the applicant. In fact his nominating employer’s sponsorship was barred for reasons associated with this cancellation of the applicant’s visa and there is no evidence of a new sponsorship or nomination approval or application in respect of the applicant. The Subclass 457 visa is a temporary visa of limited duration related to working for a particular sponsor in a particular occupation. Notwithstanding his nominating employer’s expressed desire to continue to employ him, there is no evidence of any current nomination approval in respect of him or his proposed position.

7. The purpose of the applicant’s travel to and stay in Australia was to perform work, initially with another employer on a subclass 456 visa, and then as a Production Manager on a subclass 457 visa, in his nominating employer’s flour mill. It was for a temporary period with no expectation of permanency. There is nothing before the tribunal that demonstrates the applicant has a compelling need to remain in Australia.

8. In this context, the tribunal places some weight on this consideration as a reason to cancel the visa.

   The extent of compliance with visa conditions

9. The tribunal notes that Condition 8107 is in place to ensure the integrity of the subclass 457 temporary business program, the purpose of which is to meet Australia’s short-term needs for skilled workers whilst maintaining important public policy safeguards against displacement of Australians from employment opportunities. The Tribunal gives significant weight to this factor in considering whether to cancel the visa because a breach of condition 8107 is a breach of an important and fundamental condition of a subclass 457 visa.

10. The delegate found that the applicant breached condition 8107 because he was not working in the nominated occupation. The tribunal has also found that at least from May to October 2013 the weight of the evidence supports the fact of this breach.  The applicant had acknowledged in an interview with the Department, as recorded in the delegate’s decision, notwithstanding his contradictory oral evidence to the tribunal, that he did not commence work in the nominated position until October 2013. This was confirmed by the written submission supplied by another director in response to the Department’s Notice of Intention to Consider Cancellation (paragraph 10). In addition the tribunal is unconvinced by his oral evidence, given his responses at the Departmental interviews as also recorded in the delegate’s decision, that he ever performed work at the level of Production Manager. On the contrary, on the basis of the oral and documentary evidence before it, the tribunal has formed a view the tasks of the applicant’s nominated position have been significantly conflated.

11. Given this evidence, as discussed above, the tribunal is not satisfied that the applicant was ever employed as a Production Manager. His actual duties, as described at the hearing and as he told the Department in interviews, were more akin to those of a grain miller and plant operator, tasks which the visa applicant acknowledged at the hearing (paragraph 10) that he performed.

12. Since the cancellation of his visa he has also been subject to conditions 8101 (no work), 8207 (no study or training) and 8506 (notify address change). The applicant stated that he has complied with all of his visa conditions. He claimed he went to NSW for a short time and told the Department of his change of address. He maintained that he had not been working and “had done nothing” since cancellation. The tribunal asked how he was supporting himself. He maintained he had savings of $7200 which had supported him. He also claimed that his room-mate (Amrik Singh) had continued to work and paid for most things.

13. On the basis of the evidence that the applicant lives at the flour mill, and, according to the director, visits it and sleeps in it overnight sometimes, the tribunal has significant reservations that he is complying with condition 8101. In the absence however of any further evdeince in this regard, it places no adverse weight on this concern in its considerations.

14. Given the finding of the applicant’s non-compliance with condition 8107, the tribunal places significant weight on this consideration as a reason to cancel the visa.   

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

15. As noted above, the applicant claimed that his family would suffer financial hardship because he is their sole support. Although he was given additional time to provide further information, he did not provide any material supporting his claims in this regard.

16. While the cancellation means that the applicant would have to return to the India, the applicant has only ever held a temporary visa. The Tribunal finds that he would not have had a real expectation that he would be able to remain in Australia on a permanent basis.  The Tribunal is satisfied that the applicant will be able to work and support himself in India where he speaks the language, has lived most of his life and, as he told the tribunal, he gained significant skills and experience from his previous employment.

17. Even accepting that the applicant may suffer some economic detriment if his visa is cancelled, the tribunal does not consider that detriment amounts to a level of hardship such that it would weigh to any material extent against cancellation of the visa

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence.

18. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.

19. The breach arose in circumstances in which the Department was monitoring the applicant’s nominating employer, Alpine Valley. That monitoring, combined with interviews with the applicant and others, resulted in the Department’s barring his employer for a period of nine months under s.140M of the Act. As recorded in the delegate’s decision, information obtained during the monitoring indicated that the applicant had not worked in the nominated position. Consequently he was found to have breached condition 8107 and his visa also cancelled.

20. While the timing of the visa grant, and, to some extent, the completion of the mill construction, may have been outside his control, it was the applicant’s responsibility to be aware of the conditions that applied to his visa. There is nothing before the tribunal that suggests he was misled or exploited by his employer. On being granted the visa in May 2013, on his own acknowledgement, he did not commence work in his nominated role until some 4-5 months after that date. At the hearing the tribunal had observed that he knew he was not working in his nominated role and asked why he had not contacted the Department to inquire, or sought advice, as to his position. His responses in this regard were confusing. He maintained that he did tell the Department that the construction work was not yet finished. On closer questioning it appears that he was referring to his discussions with the Department in 2014, well after the date of the visa grant.

21. While the tribunal accepts that the applicant may not have been able to control the commencement date of the mill or his visa, there were many pieces of information that should have made the applicant aware of the conditions attached to his subclass 457 visa. Such sources of information are available on the form itself and in publicly available information on the Department’s website. The Tribunal considers that that ignorance of his obligations does not excuse the applicant’s non-compliance with condition 8107.

22. On the basis of all the evdeince before the tribunal it is not satisfied that there is anything in the circumstances in which the ground for cancellation arose that weighs against cancellation of the visa.

    Past and present conduct of the visa holder towards the department

23. There is nothing before the tribunal as to the applicant’s past and present behaviour towards the Department such that it might be regarded either as a reason to, or not to, cancel the visa.

    if breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

24. This matter is not relevant to the Tribunal’s consideration as the visa was not cancelled on this basis.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

25. As recorded in the delegate’s decision, on cancellation of the visa the applicant would become an unlawful non-citizen and be liable for detention and removal from Australia if he does not apply for a Bridging visa E or voluntarily depart Australia. The applicant’s visa has been cancelled and he is currently on a Bridging visa E. If the cancellation is affirmed he would be required to depart Australia and would be prevented by the Act from making certain types of visa applications while onshore.

26. The tribunal does not consider that there is anything in this consideration that weighs against cancellation of the visa.

    Whether there would be consequential cancellations under s.140

27. 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

28. In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).  

29. There is no claim or any evidence before the tribunal that if the review applicant returns to India he will face persecution, death, torture, cruel, inhuman or degrading treatment or punishment.

30. There is little in the evidence before the tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements. No claims have been made in this regard. The tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s visa.

31. The tribunal therefore attributes no weight to these considerations in deciding whether the applicant’s visa should be cancelled.

    Any other relevant matters

32. The Tribunal has considered whether there are any extenuating or compassionate circumstances outweighing the grounds for cancelling the visa. It recognises that the barring of the applicant’s sponsor may have been outside his control however it has weighed this against his acknowledged lack of action in trying to meet his visa conditions and failure to maintain communication with the Department, other than when directly approached by the Department, in relation to his circumstances. In addition it was unimpressed by his oral evidence which, the Tribunal considers, was self-serving and contradictory to his responses at interview with the Department. As noted previously, it found his responses at hearing inconsistent and lacking credibility.

33. The Tribunal has considered and weighed all of the relevant circumstances of the applicant’s case. It is not satisfied that he worked for his sponsor/nominating employer in the occupation or activity for which the visa was granted. The applicant claimed that he has not worked since his visa was cancelled. Taking into account the director’s evidence that he needs the applicant’s services, even if the applicant’s Subclass 457 visa was not cancelled, the applicant would be unable to continue to meet the requirements for a Subclass 457 visa, given that there is no approved nomination in respect of him.

34. The Tribunal accepts that cancellation of the visa may cause the applicant some hardship, but it is not satisfied, on the evidence before it, that any hardship would be so serious as to weigh against cancellation. He was granted a Subclass 457 visa which is a temporary visa. He is able to return to India where his family lives and where he lived and worked until he came to Australia.

35. Having regard to the findings above and the circumstances of the case as a whole, and having considered the applicant’s circumstances individually and cumulatively, the Tribunal concludes, on the basis of the applicant’s knowing and ongoing breach of his visa conditions, his failure to initiate communication with the Department regarding his circumstances, as well as the Tribunal’s concerns as to the credibility of some of the oral evidence provided, that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa.

    CONCLUSION

36. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Mary-Ann Cooper
    Member