ALI (Migration)

[2017] AATA 1532

ALI (Migration) [2017] AATA 1532 (24 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Abdul Hameem Ali
Mrs Ferazna Fareen Shah
Mr Arham Abdul Ali
Mr Ashir Abdul Ali

CASE NUMBER:  1620867

DIBP REFERENCE(S):  BCC2016/3353036

MEMBER:Denise Connolly

DATE:24 August 2017

PLACE OF DECISION:  Sydney

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 24 August 2017 at 12:30pm

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) visa – Ceased employment exceeding 90 consecutive days – Resigned from employment – Not in occupation in approved nomination – No compelling circumstances

LEGISLATION
Migration Act 1958, ss 116, 140(1), 348
Migration Regulations 1994, Schedule 2, Schedule 3, Condition 8107

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 November 2016 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant was granted a Subclass 457 visa on 1 September 2015 having been sponsored by the Kashmir Transport Pty Ltd. On 20 October 2016 the Department received advice from the sponsor that on 8 July 2016 the applicant ceased his employment. On 27 October 2016 the Department sent the applicant a notice of intention to consider cancellation (NOICC). The applicant responded, acknowledging that he had resigned from his sponsored employment for reasons discussed below. The delegate took those submissions into account, however cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with visa condition 8107.

3. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. 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.

5. The applicant appeared before the Tribunal on 8 and 14 August 2017 to give evidence and present arguments.

6. The applicants were represented in relation to the review by their registered migration agent.

7. 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

8. 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?

9. 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 attached to the applicant’s visa. This condition requires, amongst other things, that the visa 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), and that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

10. The applicant in this case was sponsored Kashmir Transport Pty Ltd to work in the position of Corporate Services Manager. He was granted a Subclass 457 visa on 1 September 2015 which was subject to condition 8107.  The delegate’s decision record records that he ceased employment in July 2016. The applicant has acknowledged in writing that he decided to resign from his sponsored employment because of marital problems. He acknowledged at the hearing that he did not return to that employment. Accordingly a period of more than 90 consecutive days has passed since the applicant ceased his employment.

11. The Tribunal is satisfied that the applicant ceased employment with his sponsor in July 2016 and the period during which the applicant ceased employment exceeds 90 consecutive days. The Tribunal finds that the applicant has not complied with condition 8107(3)(b) of his Subclass 457 visa. 

12. 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.

    Consideration of discretion

13. 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’.

14. In a written submission to the Department dated 21 November 2016 the applicant states that he resigned from his employment because he and his wife were having marital difficulties. He could have taken leave from his employment he did not know how long it would take to resolve the marital issues so he resigned. He and his wife then worked on their relationship and after a visit from his parents in October 2016 his relationship improved.  He approached his ex-employer and asked if he could return to his employment and they said they would be willing to take him back if his visa is not cancelled. His children are now looking forward to a bright future in Australia. He and his wife have spent money establishing the family in Australia. He acknowledges he breached a visa condition but states that it was due to circumstances that were compelling, compassionate and beyond his control.

15. The Tribunal invited the applicant to attend a hearing scheduled for 8 August 2017 at 10 AM. On 7 August 2017 the applicant called the Tribunal and stated that he had popped or twisted his knee and he would not be able to drive or walk. He asked that his hearing be postponed. He claimed that he would be seeing his doctor and would probably need an MRI scan. He was asked to put his request in writing. Later on 7 August 2017 the applicant sent to the Tribunal a medical certificate indicating that he had attended a medical centre that morning after a knee injury and an MRI appointment had been made for the next day. The referral for the MRI indicated that the applicant had an ‘acute on chronic knee injury’. He was also prescribed Naprosyn. The Tribunal noted however that the medical evidence did not indicate that the applicant would be unable to attend the hearing. The Tribunal wrote to the applicant on 7 August 2017 advising that it had not agreed to postpone the hearing on the basis of the evidence before it because it did not indicate that he could not attend the hearing.

16. On the morning of the scheduled hearing the applicant called to advise the Tribunal that he was unable to attend the hearing because his knee was still quite swollen. He claimed to feel drowsy because of the medication he had taken and that his MRI was scheduled at 9:30 AM. He stated however that he was willing to engage in the hearing by conference telephone.

17. On that basis the Tribunal opened the hearing at the scheduled time. The applicant indicated that he had injured his knee playing in the park on the weekend. He claimed that it was an old injury and his knee had ‘popped out’. The Tribunal asked if he had attended the hospital on the day of the injury. He claimed he did not go to hospital because he knew it was an old injury. The Tribunal asked if he was capable of giving his oral evidence by telephone. The applicant indicated that he would prefer to have a face-to-face hearing because he was sitting in his car. The Tribunal agreed to adjourn the hearing and schedule it for a later date. It asked the applicant if he would be able to attend a hearing on 14 August 2017. The applicant confirmed that he was available on that date and that he would definitely attend his hearing on time. The Tribunal wrote to the applicant on 8 August 2017 advising that his hearing would be resumed on 14 August 2017 at 10 AM.

18. On 14 August 2017 the applicant’s representative arrived at the Tribunal registry before 10AM. However the applicant was not present at the scheduled time. He rang the Tribunal after 10 AM to say that he had been held up due to train difficulties and that he would be at the Tribunal by 10:15 AM. The Tribunal agreed to postpone the commencement of the resumed hearing until such time as the applicant arrived. However when he had not arrived by 11 AM a Tribunal officer contacted him by telephone at the member’s request and asked why he had not yet arrived, given that he had indicated he should be at the Tribunal by 10:15 AM. He indicated that there had been train delays on his line and that his train was very slow. He thought that he would be at the registry in about 5 or 10 minutes.

19. The Tribunal checked the Sydney Trains website and ascertained that in fact there had been no service interruptions in the previous 4 hours on the applicant’s line. At the hearing the Tribunal showed the applicant the printout from the Sydney Trains website recording that there had been no service interruptions. The applicant indicated that when he arrived at the station he had just missed the fast train so he had to wait and catch the ‘all stations’ train. He claimed he arrived at the station at about 9 AM. The Tribunal checked the train timetable which indicated in that case that he had several options which would have enabled him to arrive at the Tribunal registry shortly after the hearing was due to commence. The applicant then indicated that he lost his wallet at the station and this was why he was late for his hearing. He claimed this was why he could not show the Tribunal his driver’s license.

20. The Tribunal asked the applicant about the results of his MRI. The applicant told the Tribunal that in the end he decided not to have the MRI; just to let the knee heal.

21. The Tribunal noted that the applicant was wearing a Hewlett-Packard jacket and asked if he works for Hewlett-Packard. The applicant indicated that it was not his jacket; he had borrowed it from his brother. He denied working for Hewlett-Packard.

22. The Tribunal asked the applicant about his employment with Kashmir Transport Pty Ltd (Kashmir Transport). He indicated he commenced working with the business in September 2015 as the Corporate Services Manager. He handled the contracts and dealt with their internal staff meetings. The business has about 10 or 15 employees, the majority, about 10 or 12, being truck drivers. The Tribunal asked if the applicant worked as a truck driver. He denied this and said he did not have a truck license.

23. The applicant acknowledged that condition 8107 was attached to his visa granted in September 2015. He knew that the condition required that he work for his sponsor in skilled employment. He accepts that he breached condition 8107. He ceased working for his sponsor on 6 June 2016 when he resigned voluntarily because of his marriage difficulties.

24. The Tribunal asked the applicant how his resignation could have helped his marriage, given the possible financial stress that resignation would impose on the relationship. He indicated his resignation helped the marriage “big-time”. He had to leave his job to deal with his marriage problems because they were impacting on his work performance.

25. The Tribunal asked the applicant what income he has relied on since he ceased his skilled employment with Kashmir Transport. He indicated that his sisters and brother are Australian citizens and they have been giving him cash. Also his family in Fiji has been supporting him financially for over a year. The Tribunal asked why his family would support him financially for such a long period of time. He indicated that his marital problems were affecting his performance at work. They wanted to make it work for him and wanted his children to be here enjoying the same benefits as their children. He claimed that his wife stayed home and that he did not work anywhere else after he left his employment with Kashmir Transport. The Tribunal asked why he did not secure other employment in order to support his family financially. He indicated that he wanted to be loyal to his past employer. He claimed that if he worked at all he could not focus on solving his marital problems. His wife was struggling to look after the children in a new country so he stayed at home and helped his wife.

26. The Tribunal noted that the applicant’s relatives had visited from Fiji. It asked why they did not assist his wife with the children so that he could return to employment.  The applicant had difficulty remembering when his in-laws visited Australia, indicating it might have been in November-December 2016, or maybe January 2017. He acknowledged that his parents were in Australia in October 2016. Also his wife’s sister and his brother-in-law came to Australia in May to June 2016. He did not have an explanation for why they could not assist his wife with the children so that he could return to employment.

27. The Tribunal asked the applicant if it was true that he had done no work since he left his skilled employment with Kashmir Transport. He indicated that he had assisted family members in their businesses. His sister and brother-in-law have a building business. He did some work for them and they paid him cash in hand. He also helped his nephew who is a builder by cutting grass on building sites and helping with tools. That work was also cash in hand. He confirmed there was nothing recorded on their business’ books. The Tribunal raised its concern that the applicant has been undertaking unskilled employment for which he was not paying income tax. It explained that it may consider this to be adverse evidence. The applicant indicated that he was not really working for them, he was just helping. The Tribunal noted that he had told the Tribunal he was paid cash in hand which suggests it was employment. It also noted that he had indicated his family had been supporting him financially and it asked if that was in exchange for the unskilled employment he had undertaken. He then indicated he wish to retract that evidence. He claimed he was not working for his relatives. The Tribunal explained that his attempts to now change his oral evidence might suggest that he was not being truthful with the Tribunal. It explained that the Tribunal may form the view his oral evidence is not reliable and this may cast out on the veracity of his other evidence.

28. The Tribunal asked the applicant why he wished to remain in Australia as the holder of a Subclass 457 visa if he has not been working in skilled employment for over a year. He indicated that after working for 2 years he would be qualified to apply for permanent residence. This is why he wishes to remain in Australia. The Tribunal noted that the applicant resigned from his skilled employment after less than one year. It questioned whether he in fact would be able to secure sponsored skilled employment and remain in the position for at least 2 years. He acknowledged that he had taken a very big risk by resigning from his employment.

29. The Tribunal asked the applicant about his purpose for remaining in Australia. He indicated that he wants to return to work for one employer, Kashmir Transport. He gave to the Tribunal copy of a letter written by his former employer dated 22 June 2017 indicating that his role was still vacant since he resigned and the business was ready for him to return. He indicated to the Tribunal that if his visa was reinstated he would “love to complete employment service” with his former employer. The Tribunal questioned whether the applicant would remain in the sponsored employment given his past history. He indicated that he resigned to help his family and he would not work for anyone else. He wanted time to make sure his wife adjusted to being on her own.

30. The Tribunal asked the applicant if he knew of any other concerns regarding compliance with visa conditions. He indicated that his breach of 8107, by not working for his sponsor since June 2016, was the only non-compliance. The Tribunal noted the applicant’s earlier oral evidence that he had also worked in unskilled employment for his brother-in-law and nephew’s building businesses. It indicated it may form the view he has breached condition 8107(3)(a)(i) because it was not work in the occupation listed in the most recently approved nomination. The applicant confirmed that he did not tell the Department that he was working for his relatives in their building business. Nor did he tell the Department that he had resigned from his employment with his sponsoring employer.

31. The Tribunal asked the applicant about any hardship that may be caused by a visa cancellation. He indicated he had been unemployed for over a year and it would be difficult for him to move back to Fiji. He indicated he wished to remain in Australia and earn some money. He indicated a relative had agreed to pay his son’s school fees for the whole year for kindergarten in a private school. He also indicated his wife is stressed and she would not cope with bad news regarding a cancellation.

32. The applicant gave to the Tribunal a letter written by his wife which states that the parties have now resolved their family matters. She states the applicant resigned from his employment to ensure his children and their relationship were not affected. He has devoted his time since to addressing the relationship issues. Her mother had to visit Australia to counsel the parties and assist to resolve their differences. She stayed for more than two months and helped the parties return to a normal life. The applicant’s parents also came to spend months with the family. The parties’ son is now in kindergarten and is one of the top five students in his class. There are school merit awards attached to the letter. Due to difficulties in their relationship the applicant was unable to concentrate and perform his role at work. His employer was very supportive when the relationship was at stake. He accepted the resignation in good faith and believed it was vital that the applicant prioritise and resolve the family issues. The employer was keen to rehire the applicant. The applicant wishes to remain faithful to the same employer for the remainder of the temporary visa, until September 2019.

33. The Tribunal asked the applicant why he did not ask for leave to deal with his family issues, given that the employer was supportive. The applicant indicated that he had taken some leave but it did not help. His former employer was flexible but things were getting difficult.

34. Regarding the circumstances in which the ground for cancellation arose, the Tribunal confirmed with the applicant that the breach arose because the applicant chose to resign from his sponsored employment and he did not return to the employment, the consequence being that the period he ceased his employment exceeded 90 consecutive days.

1. The applicant claimed that the business has not replaced him in the position and they are willing to re-employ him. The Tribunal noted that the applicant is no longer the subject of an approved nomination that has not ceased. It also explained that his evidence that the position has not been filled might suggest that it is not a required position. The applicant indicated that the employer had told him that he could have returned to the position since the beginning of 2017. The Tribunal asked why in those circumstances he did not return to the sponsored employment. He indicated he did not know he could ask for work rights on his bridging visa. The Tribunal noted that the applicant is represented by registered migration agent. It asked why he did not ask his migration agent to assist him in asking the Department for work rights. He indicated he did not know he had that option.

2. The Tribunal noted that the Department had not expressed any concern regarding his past and present behaviour. However it also noted that the applicant had not informed the Department that he had resigned from his sponsored employment. The applicant claimed that he thought it was the employer’s responsibility to tell the Department that he had resigned.

3. The Tribunal noted that there will be consequential cancellations if the applicant’s visa is cancelled. It asked about the family circumstances. He indicated that his older son is attending kindergarten at Al Faisal College. He has another child aged 3. Both children were born in Fiji. His wife came to Australia in September 2015. All the grandparents live in Fiji. He confirmed that his parents live with his brother in Suva and his wife’s mother and brother live in Labasa, Fiji. The applicant’s brother is a banker. Prior to his migration to Australia, the applicant worked for Qantas as a business development manager and a client services manager. He has qualifications in business analysis and an MBA in HR and management. He acknowledged that he is well qualified for skilled employment in Fiji.

4. With regard to whether there would be any international obligations breached as a result of a cancellation, the applicant had no claims to make.

5. The Tribunal asked the applicant if he had any other evidence that he wished to have taken into account. He indicated that it would be difficult for him to return to Fiji. The Tribunal explained that the Subclass 457 visa is a temporary visa and there is no guarantee of permanent residence in Australia. The applicant indicated that his wants his son to continue at school until December. The visas are valid until 2019 and his previous employer wishes for him to return to the employment. The applicant has two sisters who are Australian citizens; one a registered nurse and the other running a building business. His brother works for Hewlett-Packard as a sales manager. They are all very helpful and supportive. He wishes to remain in Australia with his siblings.

   Assessment of the evidence

6. The Tribunal has considered all of the written and oral evidence regarding the applicant’s circumstances. He has acknowledged that he breached condition 8107 because he ceased his sponsored skilled employment and the period that he has not worked in the employment exceeds 90 consecutive days.  He claims he did this because of marital problems and that he wanted to stay home with his wife to assist her to settle in Australia. His oral claims regarding his employment since resigning from Kashmir Transport is inconsistent. Initially he claimed that he was working for his sister and nephew’s building businesses doing unskilled work, such as cutting grass and helping with tools. However when the Tribunal raised with him the concerns that he was undertaking unskilled work and not paying income tax he wished to retract that evidence. The Tribunal is of the view this raises concerns about the reliability of the applicant’s evidence. It also has concerns that the applicant has been undertaking other work. He wore a Hewlett-Packard jacket to the Tribunal suggesting he may be working for that business. It was not persuaded by his evidence that it was his brother’s jacket. His evidence regarding the reasons he was late for his Tribunal hearing was vague and inconsistent. Given Sydney Trains’ advice that there were no serious interruptions the Tribunal does not accept his evidence that he was over an hour late for his resumed hearing because of train difficulties.  It has concerns that the applicant manufactured the evidence about losing his wallet to overcome the difficulties arising from his earlier evidence. There are also concerns regarding his reasons for not returning to his sponsored employment, discussed in more detail below.  Overall the Tribunal has concerns about whether the applicant is a reliable witness.

7. With regard to his purpose for remaining in Australia the Tribunal accepts that the applicant wishes to remain here permanently and wants his children to enjoy a better life in Australia. It accepts that he wishes for his son to complete his kindergarten year, for which the fees have already been paid. It notes the applicant’s evidence that after 2 years as a holder of a temporary visa, he can apply for permanent residence in Australia. However the purpose of the Subclass 457 visa is to temporarily fill a skilled shortage in Australia. The applicant was granted his Subclass 457 visa for that purpose and chose to resign from his position. While the applicant’s former employer has indicated in a letter dated 20 June 2017, that his position is still vacant and the business is willing to re-employ him, the applicant is no longer the subject of an approved nomination that has not ceased. There is no evidence indicating Kashmir Transport has lodged another nomination application. The Tribunal also has concerns as to whether the business genuinely needs a Corporate Services Officer given that the applicant’s position has remained vacant since he resigned from his employment in June 2016. The Tribunal accepts that the applicant wishes to remain in Australia because 3 of his siblings are Australian citizens here. However that is not the purpose of a Subclass 457 visa. The Tribunal gives these factors significant weight in favour of cancelling the visa.

8. With respect to the applicant’s compliance with visa conditions, he has admitted breaching condition 8107 because he resigned from his sponsored employment and the period he has not worked in skilled employment exceeds 90 consecutive days. In fact it has now been over 14 months since the applicant has worked in skilled employment. The Tribunal is also concerned that the applicant has been working in unskilled employment, being paid in cash, for which he has not been paying income tax. The Tribunal is of the view that this employment is non-compliant with condition 8107(3)(a)(i) because it was not work in the occupation listed in the most recently approved nomination. When this was drawn to the applicant’s attention he wished to retract the evidence. The Tribunal is satisfied however that, since the applicant resigned from his sponsored skilled employment, he has been undertaking unskilled employment in his relatives’ businesses and has been paid cash on hand. It also has concerns that he may be working for Hewlett-Packard given that he was wearing a Hewlett-Packard jacket at the hearing. It takes into account his explanation that he borrowed it from his brother but has concerns about the reliability of this evidence.

9. Regarding the degree of hardship that may be caused, the Tribunal accepts that there may be some hardship and difficulty for the family if they return to Fiji. However the applicant’s parents and brother, and his wife’s mother, are residing in Fiji. He claims that they have been providing him with financial support, indicating he has supportive family in Fiji. Also the Tribunal notes that the applicant is well-qualified and has been able to secure employment with Qantas in Fiji in the past. On this basis the Tribunal is satisfied the applicant will be able to secure employment if he returns to Fiji. While the Tribunal accepts the applicants have spent money on establishing themselves in Australia, the Tribunal is not satisfied there will be significant financial hardship if the visa is cancelled. While his wife may be stressed by a return, the Tribunal is not satisfied any hardship caused by returning to Fiji would be significant. The Tribunal accepts that the applicant’s son has commenced school in Australia and they want him to finish his kindergarten year however there is no evidence to suggest he would be unable to attend school if the family returns to Fiji.

10. The applicant has told the Tribunal that the circumstances leading to the ground for cancellation concerned his marital problems. He claims that he resigned from his employment to deal with those problems. When asked why he would do this given the financial stress this might cause, he claimed that he had been supported financially by family members. The Tribunal is of the view that that financial support was given because the applicant was working for his relatives’ building businesses. The applicant claims that he needed to stay home to assist his wife with the children, and the periods of leave he took were not sufficient to deal with the problems, however he was unable to explain why he could not return to the skilled employment when relatives were visiting, given the likelihood that they could support his wife with the children. The Tribunal notes that the applicant’s former employer was supportive and aware of the applicant’s family difficulties. The Tribunal is concerned that the applicant resigned from his employment to pursue alternative employment, and not only because of marital difficulties. It takes into account his wife’s written statement claiming that he needed to resign to deal with the family’s problems however is not satisfied the applicant has adequately explained why he did not take more leave to deal with marital difficulties, given he had a supportive employer. While the Tribunal accepts that migration may cause relationships stress, it is not satisfied the applicant has demonstrated his family’s circumstances were particularly compelling and it is not satisfied the circumstances leading to the ground for cancellation arising were outside his control.

11. With regard to past and present conduct towards the Department, the Tribunal notes that the Department has not raised any concerns. However the Tribunal has a concern that the applicant did not inform the Department that he had left his sponsored employment given that he had been granted a Subclass 457 visa to undertake that employment in Australia. It takes into account his view that he thought the employer shall inform the Department. However it also takes into account the applicant’s acknowledgement that he was aware that he was breaching condition 8107. It also has concerns regarding the veracity and reliability of the claims made to the Department and the Tribunal regarding his reasons for resigning from sponsored skilled employment.

12. The applicant has indicated he is holding a bridging visa E. The Tribunal is satisfied that so long as the applicant departs Australia before his bridging visa expires he will not be detained. While the applicant will be affected by s.48 of the Act if the visa is cancelled, and will not be able to apply for another Subclass 457 visa onshore, he will have the option of applying for the visa offshore if he is sponsored again and becomes the subject of an approved nomination. The Tribunal gives limited weight to the mandatory legal consequences of cancellation as they are the intended consequences of the legislation.

13. The Tribunal takes into account that, if the applicant’s visa is cancelled, his wife and children’s visas will be consequentially cancelled under s.140. It notes that their visas were granted on the basis of being members of his family unit and it is the intended consequence of the legislation that members of the same family have the same visa status.  For these reasons, the Tribunal gives limited weight to the consequential cancellation of his wife and children’s visas.

14. The applicant has indicated there is no evidence to suggest that any international obligations would be breached as a result of a cancellation.

15. The Tribunal has considered and weighed up all of the relevant evidence and circumstances in this case. The ground for cancellation arose because the applicant chose to resign from his skilled employment in June 2016. He has not worked in skilled employment since that time. Hence he has not been fulfilling the purpose for which a Subclass 457 visa is granted, to temporarily fill a skill shortage in Australia. The Tribunal takes into account the applicant’s evidence indicating his former employer is willing to re-employ him in the position. However it notes that he is no longer the subject of an approved nomination that has not ceased, there is no evidence indicating that another nomination application has been made, and in any case the position he held has remained vacant since June 2016 suggesting it is no longer required. The Tribunal notes the applicant’s evidence that he has been working in unskilled employment for cash in hand since he ceased his sponsored skilled employment. These factors weigh in favour of cancellation. The Tribunal accepts that the applicant may experience some difficulty in hardship if a visa is cancelled and his family is required to return to Fiji. However it notes that the Subclass 457 Visa is a temporary visa intended to fill a specified position for a temporary period. While the applicant hopes to pursue permanent residence in Australia there is no guarantee that a 457 visa holder will secure a permanent visa. Hence it was always the case that the applicant and his family may need to return to Fiji. The Tribunal has concerns regarding the reliability of the applicant’s evidence in relation to his reasons for ceasing his employment in June 2016 and not returning to skilled employment since then. While it accepts migration may cause a relationship stress, it is not persuaded that he resigned merely because of marital difficulties. It is of the view, given the support he claims to have received from his employer, that he could have sought further leave to deal with those difficulties.  While it is satisfied the applicant may be affected by s.48 and that there will be consequential cancellation is under section 140, these are the intended consequences of the legislation. The Tribunal accepts that the applicant has qualifications and has been employed by Qantas in Fiji, holding skilled positions. The Tribunal is satisfied the applicant will ultimately be able to secure skilled employment if he returns to Fiji. The applicant claims he wants to work for his former sponsor, Kashmir Transport. However the Tribunal is satisfied that if the applicant becomes the subject of an approved nomination he will be able to make an application offshore for Subclass 457 visa should he wish to do so.

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

    DECISION

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

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

    Denise Connolly
    Member