Amardeep Singh (Migration)

Case •

[2021] AATA 2208

•

7 May 2021

Amardeep Singh (Migration) [2021] AATA 2208 (7 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr  Amardeep Singh
Mrs Harpreet Kaur
Miss Hargundeep Kaur
Master Japjeet Singh Cheema

CASE NUMBER:  2009161

HOME AFFAIRS REFERENCE(S):          BCC2019/2759146

MEMBER:L. Hawas

DATE:7 May 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first applicant’s Subclass 482 - Temporary Skill Shortage visa.

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

Statement made on 7 May 2021 at 5:42

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – ground for cancellation – ceased employment with sponsor – consideration of discretion – substantial extent of the breach – reasonable opportunity to secure a new nomination but unsuccessful – demonstrated willingness to search diligently for new employers – currently working as an electrical engineering technician – pending nomination application – behaviour towards the Department – best interest of the children – COVID-19 pandemic travel restrictions – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140

Migration Regulations 1994 (Cth), Schedule 8, Condition 8607

STATEMENT OF DECISION AND REASONS

Introduction

  1. The first applicant (hereinafter referred to as the applicant) is a 46 year old man from India. He currently lives in Australia with his wife, daughter, and son. The applicant’s wife is 32 years old, his daughter is nine years old, and his son is eight years old. They are the second to fourth applicants respectively. The applicant came to Australia on a visitor visa in 2017. While in Australia on that visa, the Department of Immigration and Border Protection granted the applicant a Subclass 482 - Temporary Skill Shortage visa. The visa was for term of four years from 20 August 2018 to 20 August 2022. The second to fourth defendants were granted 482 visas consequentially on the applicant’s visa being granted. By written decision dated 20 May 2020, a delegate of the Minister for the Department of Home Affairs cancelled the applicant’s visa.

  2. The delegate cancelled the applicant’s visa under s.116(1)(b) of the Migration Act 1958 (Act) on the ground that he did not comply with condition 8607(5) of his visa. That condition provided that if the applicant ceased employment with his sponsoring employer the period during which the applicant ceases employment must not exceed 60 consecutive days. The delegate found that the applicant ceased employment with his sponsoring employer effective January 2019 and that he ceased that employment for more than 60 consecutive days in breach of condition 8607(5). After considering the matters relevant to the delegate’s discretion to cancel the delegate decided to cancel the applicant’s visa.

  3. The applicants have now applied to this Tribunal for a review of that decision. The applicant gave the Tribunal a copy of the delegate’s decision at the time he applied for this review.

  4. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision before the Tribunal is the decision cancelling the applicant’s visa. The visas of the second to fourth applicants were automatically cancelled as a consequence of the applicant’s visa cancellation. It follows that the visas of the second to fourth applicants were not cancelled by decision but by force of the operation of s.140(1) of the Act. The cancellation of those visas was self-executing on the cancellation of the applicant’s visa.[1] As no decision was involved in the cancellation of the visas of the second to fourth applicant under s.140(1), the Tribunal has no jurisdiction with respect to them.

    [1] See Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96.

  5. Accordingly, in this review, the Tribunal must decide whether the ground for cancelling the applicant’s visa is made out, and if so, whether the visa should be cancelled.  

  6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside and substituted with a decision not to cancel his visa.

Procedural matters

  1. The applicant first appeared before the Tribunal on 18 February 2021 to give evidence and present arguments. At that hearing, the applicant was represented by his solicitor. The hearing proceeded with the assistance of an interpreter in the English and Punjabi languages. The Tribunal and the applicant encountered difficulties with the interpreter during that hearing. Early on in the hearing, after consulting with his solicitor, the applicant requested a different interpreter. The Tribunal acceded to the applicant’s request but that necessitated an adjournment of the hearing. The hearing resumed on 22 March 2021 with the assistance of a different English/Punjabi interpreter. The applicant appeared at that hearing to give evidence and present arguments. At the second hearing, the applicant was represented by a different solicitor but who was from the same firm of solicitors the applicant has had throughout this review.

  2. The hearings were held during the COVID-19 pandemic. The Tribunal exercised its discretion to hold the hearings by video conference (Microsoft Teams). The Tribunal determined it was reasonable to hold the hearings by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick. The hearings of the matter would have been delayed if it was not to be conducted by video conference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments at the hearing.

  3. On 11 February 2021 (before the first hearing), the Tribunal received written submissions with attachments from the applicant’s solicitor (pre-hearing submissions).  The Tribunal received further submissions and documents from the applicant’s solicitor on 6 April 2021 (after the second hearing) (post-hearing submissions). The Tribunal has considered all the written submissions and documents the applicant has submitted.

Is the ground to cancel the applicant’s visa made out?

  1. The Minister or the Tribunal (on review) may cancel a visa under s.116(1)(b) of the Act if satisfied that the visa-holder has not complied with a condition of the visa.

  2. Here, the applicant’s visa contained condition 8607(5), which provided that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.

  3. The applicant was nominated for his 482 visa by Orent and Western Electricals Pty Ltd (Orient). That company specialised in electrical maintenance work for large business and local councils. Orient’s application to nominate the applicant was granted on 30 July 2018 and the applicant commenced working for the company from about that time (the applicant’s 482 visa was granted on 20 August 2018). The applicant’s approved position with the company was as an electrical engineering technician. In the course of his employment with Orient, the applicant performed general electrical maintenance and repairs, designed cabling layout for new buildings and laid cabling, and assisted in the maintenance and repair of large generators.

  4. By email to the Department of Home Affairs on 7 May 2019, a migration agent acting on behalf of Orient notified the department that the applicant ceased working for Orient from January 2019. In the email, the migration agent stated that: “despite several reminders to resume the job the Nominee has not responded to any text messages or phone calls of the employer so he has ceased working with the above mentioned employer.”

  5. By notice of intention to consider cancellation dated 17 March 2020, the Department of Home Affairs notified the applicant that Orient had advised it that the applicant ceased employment with the company effective January 2019. The notice provided that it appeared the applicant had not complied with condition 8607(5) of his visa because the period during which the applicant ceased employment had exceeded 60 days. That appeared to constitute grounds to cancel the applicant’s visa under s. 116(1)(b) of the Act for breach of condition 8607(5). In the notice, the department invited the applicant to comment on the ground(s) to cancel his visa identified in the notice and give reasons why the visa should not be cancelled.

  6. The applicant responded by letter dated 20 March 2020. In the letter, the applicant stated that he remained employed by Orient until January 2019. At about that time he had no choice by to leave his employment with Orient for several reasons. Orient was not paying him on time and was not always paying him the contracted wages. There were “issues and fights” with the principal or Orient over the applicant’s pay. The applicant also stated that he began to look for another employer to sponsor him immediately on leaving employment with Orient and he was eventually able to locate another employer who had applied to sponsor him. His prospective new employer did not apply to nominate him for a visa until after 60 days from the time he left employment with Orient because of the “turn around time” between leaving work for Orient and locating a new employer who was prepared to nominate him.

  7. The applicant’s evidence on this point at the hearing was consistent with what he stated in his written response to the notice of intention to consider cancellation of his visa. He said that during his time with Orient, the company overworked him. It required him to work up to 16 hours a day. Some weeks he worked for 55 hours. But his contracted working week was 38 hours. Orient paid him no more than his contracted minimum salary no matter how many hours a week he worked. On occasions, Orient did not even pay the applicant his minimum contracted salary.  Orient did not pay the applicant any overtime. The money the applicant was earning from Orient did not correlate with the hours he worked and it was not enough to cover all his living expenses. When the applicant asked Orient’s principal to pay him what was owing, including for overtime, the principal ignored him. That caused disputes and disagreements between the applicant and Orient’s principal. The applicant also said that Orient’s principal harassed him at work. His work situation caused him to suffer from depression. He said that he left work with Orient in January 2019 because of its failure to pay him for the work that he performed and the difficulties he encountered with its principal. He said that he did not return to work for Orient after his last day at work in January 2019. He accepted that he did not resume employment with Orient for 60 consecutive days after ceasing his employment.

  8. The applicant submitted to the Tribunal a statutory declaration sworn on 10 February 2021 with his pre-hearing submissions. In that statutory declaration, the applicant stated that Orient often asked him to travel from Melbourne where he lived to Sydney or Canberra at short notice. Orient did not pay him for travel or his time away from home meaning that he was working six or seven days a week without proper pay. The applicant repeated that Orent’s principal harassed him, insulted him, and intimidated him in front of other workers. That led to disputes and arguments with Orient’s principal, especially after the applicant asked for remuneration for the time he actually worked. In the statutory declaration, the applicant stated that he left employment with Orient on 22 December 2018 because, by that time, he could not continue given Orient did not pay him for the work he performed and because of his mistreatment at Orient’s hands.

  9. With his pre-hearing submissions, the applicant sent the Tribunal a letter to him from Orient dated 5 August 2019. The letter referred to a conversation between Orient’s principal and the applicant on 18 April 2019 during which the applicant stated that he would not return to work for Orient. The letter provided: “We confirm we have accepted your resignation effective 18.04.2019.” At first blush, it is difficult to reconcile the contents of this letter with the email sent to the department on Orient’s behalf on 7 May 2019 and the applicant’s evidence, both of which referred to the applicant ceasing work in January 2019. But the letter can be reconciled. In the 7 May 2019 email to the department (as referred to in paragraph 13 above), Orient’s migration agent referred to Orient asking (or demanding) that the applicant return to work and the applicant refusing. That could explain the reference in Orient’s 5 August 2019 letter to a recent conversation and the applicant refusing to return to work. There is a difference between the applicant ceasing work with Orient and his employment ceasing. An employee ceasing work does not always mean his employment has ceased because the employee might be on extended leave as one example. It seems from the 5 August 2019 letter that Orient might have considered the applicant’s employment to have ceased on 18 April 2019 even though the last time the applicant worked for the company was in January 2019.

  10. In any event, on the evidence before the Tribunal, there is no doubt that the applicant’s employment with Orient ceased – either in January 2019 or 18 April 2019 – and the applicant did not return to work for Orient in the following 60 consecutive days. Further, the applicant was not the subject of an approved nomination or an application to nominate him for a visa – whether that is calculated from January 2019 or 18 April 2019 (the Tribunal returns to applications to nominate the applicant below).

  11. Insofar as it is necessary to make a finding on when the applicant ceased employment with Orient, the Tribunal finds that the applicant ceased employment in January 2019. His last day at work for Orient was in January 2019 and the applicant had no intention of returning to work after leaving. The applicant said that was when his employment ended. Although, on the evidence, the distinction between the applicant ceasing work and his employment ceasing could be relied on to conclude that the applicant’s employment ceased on 19 April 2019, that requires some deducing of the circumstances behind Orient’s letter to the applicant of 5 August 2019 (as set out in paragraph 18 above). On the evidence, the preferable conclusion is that the applicant’s employment with Orient ceased in January 2019.

  12. For those reasons, the Tribunal finds that the applicant breached condition 8607(5) of his visa and that the ground to cancel his visa under s. 116(1)(b) of the Act has been made out.

Consideration of the discretion to cancel the applicant’s visa

  1. Section 116(1)(b) of the Act does not require mandatory cancellation of the applicant’s visa. Having found that grounds for cancelling the visa under that section have been made out, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. In exercising its discretion, the Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, matters in the ‘General visa cancellation powers’ departmental policy as well as all the other matters it considers relevant. Those are set out below.

The purpose of the applicant’s travel to and stay in Australia, and whether the applicant has a compelling need to remain in Australia

  1. The applicant is a well credentialed and experienced electrical technician. With his pre-hearing submissions, the applicant submitted a copy of his resume and copies of other documents evidencing his qualifications and experience. The applicant has a Diploma of Electrical Engineering (a three year course) that he obtained in 2001. Since then he has worked as an electrical technician or engineer in positions in India and Saudi Arabia, and with the United States military in Iraq and Afghanistan. Those roles preceded his position as an electrical engineering technician with Orient.

  2. At the hearing, the applicant said that after ceasing work with Orient, he began searching for a new nominating employer immediately. The applicant was subsequently able to secure three applications to nominate him for a visa by two different employers. A company by the name of Kanuanu Pty Ltd (Kanuanu) applied to nominate the applicant as an electrical engineering technician on 6 September 2019 and 18 December 2019. Both of those applications were refused.

  3. The third application to nominate the applicant was made by a company by the name of JD Bains Electricals Pty Ltd (JD Bains). The company was approved as a standard business sponsor on 8 October 2020. It applied to nominate the applicant for a 482 visa as an electrical engineering technician on 30 September 2020. The department is yet to decide that application.

  4. The applicant is currently working as an electrical engineering technician for JD Bains. There is nothing untoward about that because the bridging visa E upon which the applicant remains in Australia carries work rights. JD Bains is paying the applicant a salary of $60,000 per year plus superannuation. That equates to $1,635 per fortnight net of tax.

  5. With his pre-hearing submissions, the applicant submitted an undated copy letter from JD Bains. The letter provides that the company operates primarily in the western suburbs of Melbourne and it has seven employees. The applicant is currently working with the company and it relies on him solely for machine automation, solar inverter installation, and generator installation. If its application to nominate the applicant is granted it will continue to employ the applicant full time for the term of his visa. The letter also provided that the applicant’s qualifications and experience are highly valued, and it has encountered difficulty locating an Australian worker with similar qualifications and skills.

  6. At the hearings, the applicant stated that he only wants to remain in Australia to work as an electrical engineering technician for JD Bains. He stated that once the term of his visa expires he proposes to return to India with his family. He said that he was too old now to have a realistic prospect of obtaining permanent residency in Australia and would have little choice but to leave. He said that he was confident that JD Bains’ application to nominate him for a visa would be approved.

  7. Turning to the Tribunal’s findings under this head, a 482 visa is a temporary visa that provides for skilled people (and their immediate families) to come to Australia to work for an approved employer for up to four years. The 482 scheme allows visa holders to fill roles where there is a genuine skills shortage or, in effect, where a suitably qualified Australian worker is not available.[2]

    [2] >

    The applicant’s stay in Australia on his 482 visa was for the purpose of working for Orient to fill a need that employer had for an electrical engineering technician, which it could not fill with a suitably qualified Australian worker. When the applicant ceased employment with Orient in January 2019, given condition 8607(5) of his visa, he effectively had 60 days to secure a new nomination for a visa in order to remain within the conditions of his visa. The applicant was not able to secure a new nomination within 60 days, after which he fell into breach of condition 8607(5). From that point, the applicant’s continued stay in Australia on his 482 was in tension with the purpose of that visa.

  8. After he left Orient, the applicant searched for a new sponsoring employer. It took him about eight months to locate Kanuanu, who first applied to sponsor him for a visa on 6 September 2019. After Kanuanu’s applications to nominate the applicant were refused, the applicant was able to secure another application to nominate him by JD Bains, which is still pending.

  1. Despite searching for a new sponsoring employer from January 2019, it took the applicant about eight months to secure the nomination applications by Kanuanu. When those applications were refused in late 2019, it took the applicant another year or so to secure the nomination application by JD Bains, which is still pending. Although condition 8607(5) of the applicant’s 482 visa contemplated that he would have some time (60 days) to locate a new sponsoring employer after his employment ceased, it did not contemplate the applicant remaining in Australia for such an extended period – now over two years from January 2019 – to search for work and secure a new nomination. That purpose (extended search for work and a new nomination) is not consistent with the purpose of the applicant’s visa.

  2. The applicant has now had well over 60 days of ceasing his employment with Orient, and thus a reasonably opportunity, to secure a new nomination but has been unable to do so. 

  3. Accordingly, the Tribunal weighs the following matters heavily in favour of cancelling the applicant’s visa:

    (a)The substantial extent of the applicant’s breach of condition 8607(5) of his visa. The applicant ceased employment with Orient in January 2019. The applicant is yet to secure a new nomination; and

    (b)The applicant has now had a reasonable opportunity to secure a new nomination but has not been successful.

  4. To be weighed against that is the applicant’s demonstrated willingness to search diligently for new employers to nominate him and his ability to secure new applications to nominate him. Also, the applicant is currently working for JD Bains as an electrical engineering technician, which company wants to continue employing the applicant in that role for the term of his 482 visa if its nomination application is approved. The applicant wants to remain in Australia for the term of his visa to work for JD Bains. That is consistent with the purpose of his 482 visa. Those matters mitigate strongly the weight the Tribunal places on the matters in paragraph 34 above.

  5. Otherwise, the Tribunal does not consider the applicant to have a compelling need to remain in Australia.

The extent of compliance with visa conditions

  1. Other than the applicant’s breach of condition 8607(5) of his visa in issue, he has not breached any other condition of his visa. The Tribunal weighs that against cancelling the applicant’s visa.

Degree of hardship that may be caused (financial, psychological, emotional, or other hardship) to the visa holder and any family members

  1. In his pre-hearing submissions, the applicant stated that he would suffer several instances of hardship. He said that his two children are enrolled in school in Australia. To remove them from school and return to India would be too disruptive to them. The applicant also said that his treatment by Orient caused him to suffer from depression for which he is taking medication. With his pre-hearing submissions, the applicant submitted a letter from his treating doctor stating that he suffered from depression in the months after he left Orient, which was caused by the circumstances in which he left the company. He said that his depression would be exacerbated if he were required to return to India before completing the term of his 482 visa working for JD Bains.

  2. At the hearings, the applicant said that if he were required to return to India he would find it difficult to find work. He said the current COVID-19 pandemic had impacted the employment market in India and that would impede his ability to find work. He said also that his wife would struggle to find work in India. She is currently not working but hoping to find work in Australia.

  3. The Tribunal accepts that returning to India will visit some hardship on the applicant and his children as he has claimed. It will be disruptive to the applicant’s children to stop their schooling and return to India. The Tribunal weighs that against cancelling the applicant’s visa. But the weight the Tribunal places on that matter is limited. The applicant’s children are still very young and they will be able to resume their schooling in India without too much difficulty. Also,  the applicant’s visa will expire by effluxion of time in any event on 28 August 2022, at which the time the applicant and his family will need to return to India (in the absence of another visa permitting them to remain in Australia). Accordingly, it will be necessary eventually for the applicant’s children to return to India to complete their schooling.

  4. Turning to the applicant and his wife, if the applicant is able to secure work in India, it will not be as well remunerated as his work in Australia for JD Bains. That will visit some hardship on the applicant (and indirectly on the rest of his family). The same applies to the applicant’s wife. If she is able to secure work in India, it will not be as well remunerated as work in Australia will be assuming she is able to secure work here. The Tribunal weighs those matters against cancelling the applicant’s visa.

  5. Overall, the applicant’s hardship claims do not weigh heavily in this review.

  6. The applicant also claimed that JD Bains would suffer hardship if the applicant’s visa was cancelled. The applicant argued that if he had to return to India JD Bains would lose the benefit of his skills and experience, which it desperately needs. The Tribunal accepts that in this review it should have regard to JD Bains’ position. It has addressed that in paragraphs 68 and 74 below.

  7. Insofar as the applicant and his family could suffer health related hardship in India because of the COVID-19 pandemic the Tribunal has addressed that matter in paragraph 69 below.

Circumstances in the which the ground for cancellation arose. Were the circumstances beyond the applicant’s control?

  1. The applicant claims that he had no choice but to leave his employment with Orient. The company made him work well over his contracted working hours. It did not pay him for overtime let alone his minimum contracted salary. The applicant also claims that he left his employment with Orient because its principal mistreated him and humiliated him.

  2. In support of his claim that Orient underpaid him and owed him money for unpaid salary, the applicant submitted his bank statements for the period during which he worked for Orient, his timesheets, and a reconciliation of his timesheets with what he received.

  3. The applicant’s bank statements reveal that the payments he received from Orient were sporadic. The applicant did not receive payments at consistent intervals, which one expect for salary payments. The amount of the payments also varied greatly, which again is not what one expects for salary payments. The applicant’s timesheets and reconciliation reveal that the applicant worked for more than 38 hours per week. The documents before the Tribunal reveal, at least, that there were irregularities in the applicant’s pay. The Tribunal accepts that irregularities in pay would be the cause of dispute between the applicant and Orient and that would have contributed to the applicant leaving his employment with Orient. The applicant weighs that matter against cancelling the applicant’s visa.

  4. But the Tribunal places limited weight on that matter. The timesheets the applicant submitted to the Tribunal did not appear to be Orient documents but documents compiled by either the applicant or his solicitor. There is no evidence before the Tribunal from Orient, or any Orient documents, that shed light on how many hours the applicant worked, how much Orient paid him, and any reason why Orient did not pay the applicant what he claims he is owed. The Tribunal accepts that Orient might dispute the hours the applicant claims he worked, and it acknowledges that Orient might have an explanation for the apparently sporadic payments it made to the applicant in inconsistent amounts. In the end, the Tribunal has not put sufficient documents before the Tribunal to allow it to verify with certainty whether Orient failed to pay the applicant his minimum contracted salary, how many hours the applicant worked, and whether Orient paid the applicant for any overtime worked. The Tribunal only has sufficient evidence before it to conclude that there appears to be irregularities in the applicant’s salary payments during the time he worked for Orient, hence the limited weight the Tribunal has placed on the matter.

  5. Otherwise, other than the applicant’s say so, there is no evidence before the Tribunal of Orient having mistreated or humiliated the applicant and that being one of the reasons he left work for Orient. The Tribunal weighs that claim against cancelling the applicant’s visa but the weight is limited.     

Past and present behaviour towards the Department   

  1. In the cancellation decision, the delegate noted that the applicant was abusive toward department employees when they phoned to speak to him before his visa was cancelled. At the hearing, the applicant vehemently denied this claim. He said that he had never spoken to department employees and all communications were in writing. In the absence of documentary evidence either way, the Tribunal is prepared to give the applicant the benefit of the doubt on this point and disregard it for the purpose of this review. Otherwise, there is no evidence before the Tribunal that the applicant has not cooperated with the Department. The Tribunal has weighed that against cancelling the applicant’s visa.

Whether there would be consequential cancellations under s. 140

  1. The visas of the second to fourth applicants were cancelled consequentially because of the cancellation of the applicant’s visa. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in the separation of the applicant from the second to fourth applicant or third applicant or the breakup of the family. Accordingly, this consideration is neutral. Insofar as the second to fourth applicants will suffer hardship by reason of the cancellation of the applicant’s visa, the Tribunal has considered those matters in paragraphs 38-44 above.

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

  1. The applicant is currently on a bridging visa E (class WE subclass 050) pending the outcome of this review. The applicant was granted that visa on 28 July 2020.

  2. Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s. 116 of the Act, may apply for certain prescribed classes of visas but not others in Australia. Regulation 2.12 of the Regulations prescribes the classes of visas. Subclass 482 visas are not prescribed. Consequently, this limits what visa applications the applicant can make whilst onshore. The Tribunal has taken that potential limitation on the applicant’s future visa applications actions into account and weighed that against exercising its discretion to cancel the applicant’s visa.

  3. The cancellation of the applicant’s visa will not attract the application of Public Interest Criteria 4013 (PIC 4013). The visa cancellation will not attract the risk factors set out in PIC 4013 necessary to invoke its application. The Tribunal considers that to have a neutral impact on this review.

  4. The Tribunal has considered the potential impact of PIC 4014 on the applicant. That public interest criteria provides that a visa holder will be affected by a risk factor if the person left Australia as an unlawful non-citizen or the holder of certain bridging visas including a bridging visa E. The risk factor will not operate if the visa holder left Australia within 28 days after the substantive visa ceased to be in effect or a while on a bridging visa granted within 28 days after the substantive visa ceased to be in effect. If it applies, PIC 4014 will effectively bar the visa-holder from obtaining another visa unless the application is made more than three years after the person left Australia or there are compelling circumstances affecting Australia, or compassionate or compelling circumstances affecting the interests of an Australian resident, justifying the grant of a visa within three years after departure.

  5. The applicant’s visa was cancelled on 29 May 2020. The applicant obtained his bridging visa E on 28 July 2020, being more than 28 days afterwards. Accordingly, the applicant will be impacted by PIC 4014 if the Tribunal affirms the cancellation decision. That would affect his application for a 482 visa on the sponsorship of JD Bains, or any other visa for which he applies, of the application is made from offshore. If PIC 4014 applies to the applicant at the time he leaves Australia, and if he subsequently wants to return to Australia on another visa within three years of leaving, the Tribunal has considered the possibility that the applicant will not be able to make out the necessary compelling or compassionate circumstances justifying a visa grant in order to obtain a visa in those circumstances. The Tribunal has weighed those matters in the applicant’s favour; it has weighed them against exercising its discretion to cancel the applicant’s 482 visa.

  6. But the Tribunal places limited weight on that consideration. The applicant has not explained why he waited nearly two months from the date his visa was cancelled to obtain a bridging visa and why he did not obtain a bridging visa when he commenced this review.  Further, PIC 4014 must be allowed to have its express effect; that is to limit re-entry into Australia of visa applicants where the relevant risk factor exists.

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

  1. The Tribunal has considered Australia’s international agreement and treaty obligations.

  2. Article 3 of the United Nations Convention on the rights of the Child (CROC), to which Australia is a signatory, provides that the best interests of the child shall be a primary consideration in any action concerning children by administrative authorities. Accordingly, in this review, the Tribunal has considered the best interests of the applicant’s children (the third and fourth applicants) as a primary consideration.

  3. The applicant has claimed that if his visa was cancelled and the family had to return to India it would affect his children’s education.

  4. Insofar as that evidence is relevant to a hardship claim on behalf of the applicant’s children, the Tribunal has considered that in paragraphs 38-44 above. The evidence is also relevant to Australia’s obligations under the CROC, which the Tribunal considers below.

  5. The Tribunal accepts that Australia generally has a better education system and will generally offer better future educational opportunities to the third and fourth applicants in the short term. Not having to leave Australia and move schools now will be more beneficial to the third and fourth applicants than cancelling the applicant’s visa and imposing on them a move now.  In that sense, the best interests of the third and fourth applicants under the CROC are best served by remaining in Australia.

  6. But to be balanced against that finding are three matters that reduce its force in this review. First, that the third and fourth applicants will be better off remaining in Australia for now is a conclusion of largely general application. It that can be applied to many (if not most) instances of visa cancellation that will result in a child being required to leave Australia for a less developed country (such as India) or one that does not provide for as many educational opportunities as Australia. The applicant here has adduced little evidence of the particular circumstances that his family is likely to face in India to explain why those circumstances will particularly disadvantage the third and fourth applicants or be substantially against their best interests such that the point is elevated above that of the general observation.

  7. Second, the third and fourth applicants are still very young. They obtained their visas consequentially on the applicant obtaining his visa. There is no evidence before the Tribunal that the second to fourth applicants have applied for visas to remain in Australia independently of the applicant. The Tribunal concludes that if the applicant’s visa remains cancelled with the consequence that the applicant must return to India, the second to fourth applicants will return with him. In that event, the third and fourth applicants will not be separated from either of their parents. Again, the applicant has adduced limited evidence to explain specifically why the third and fourth applicants will be so disadvantaged or why their best interests will be intruded upon by having to return to India given they will still be with their parents other than to say more generally that the third and fourth applicants will be better off in Australia in the short term.

  8. Third, as the Tribunal has already noted, the applicant said that he proposes to return to India once the term of his 482 visa expires on 28 August 2022. Accordingly, the third and fourth applicants will return to India then. Given the young age of the third and fourth applicants, there will not be a material difference between the impact on their education of having to return to India now and returning in August 2022.

  9. In conclusion on the best interests of the third and fourth applicants under the CROC, the Tribunal finds that by reason of the matters set out in the paragraph 62 above, cancelling the applicant’s visa will not be in the best interests of the third and fourth applicants. The preferable decision would be to set aside the cancellation decision. The Tribunal weighs that in the applicant’s favour in this review; that is, against cancelling his visa. But by reason of the matters set out in paragraphs 63-65 above, the Tribunal considers the extent to which cancelling the applicant’s visa will not be in the best interests of the third applicant to be negligible. That reduces the weight the Tribunal places on this consideration.  

  10. Otherwise, on the evidence before the Tribunal, Australia’s international agreement and treaty obligations are not engaged by the cancellation of the applicant’s visa.  

Other relevant matters

  1. The Tribunal has taken into account the claims attributed to JD Bains in this review. The company is impressed with the applicant’s qualifications and experience and it relies on him to complete technical work that requires a high degree of skill. The company has stated that it has not been able to locate a suitably qualified Australian worker to employ. The Tribunal has weighed JD Bains’ claims and its interests against cancelling the applicant’s visa.

  2. The Tribunal notes that India is currently suffering from widespread transmission of the COVID-19 virus and that the applicant and his family may be exposed to that widespread transmission if they return to India. At a more general level, the Tribunal understands that a person in a large developing country like India will be more vulnerable to COVID-19 than the same person would be in a smaller developed country like Australia. One would expect Australia to have more capacity to control the spread of a virus and treat the effects of infection than would India. The Tribunal weighs those matters against cancelling the applicant’s visa but the weight is limited. COVID-19 is a worldwide pandemic that has affected all countries including Australia and the threat faced by individual countries changes constantly. It is difficult to predict what the level of threat will be in Australia and in India from week to week or month to month.

  1. The Tribunal accepts that the travel restrictions currently imposed by countries around the world might impede the applicant and his family from returning to India. While the applicant and his family, as holders of temporary visas, are not prevented from leaving Australia[3] they might be subject to international border restrictions in India preventing their entry. That could delay their departure from Australia. In that event, it is open to the applicant and her family to apply for bridging visas allowing them to remain in Australia while arranging their return to India.[4] The Tribunal has weighed those matters against cancelling the applicant’s visa.

    [3] >

    Australia’s international borders are currently closed to all arrivals unless the travellers come within one of the stated exemptions, such as Australian citizens or permanent residents returning home.[5] Further, as at the time of this decision, all arrivals from India are banned, including arrivals of Australian citizens. If the applicant returns to India, and while there JD Bains’ application to sponsor the applicant for a 482 visa is granted, it is possible that restrictions on entry into Australia will still be in place either preventing the applicant from returning or delaying his return substantially. If that occurs, it could jeopardise the JD Bains’ willingness to proceed with the applicant and it would deprive JD Bains of the benefit of the applicant’s obvious qualifications and experience. The Tribunal has weighed those matters against cancelling the applicant’s visa.

Conclusion on discretion

[5] type="1">

  • The Tribunal has considered all the evidence before it carefully and all the matters in favour of cancelling the applicant’s visa and all the matters that weigh against that outcome.

  • The Tribunal considers the applicant’s breach of condition 8607(5) of his visa to be a substantial one. His employment with Orient ceased in January 2019 and the applicant has not to date been able to secure another nomination. The Tribunal weighs those matters (as set out more fulsomely in paragraph 34 above) heavily in favour of cancelling the applicant’s visa.

  • But in this review, the Tribunal considers the matters set out above that weigh against cancelling the applicant’s visa outweigh the matters favouring cancellation. Most importantly, the applicant’s 482 visa still has until 28 August 2022 to run. The applicant searched for a new nominating employer after leaving work with Orient. He was able to secure three applications to nominate him for a visa. The latest of those applications by JD Bains is still pending. The applicant is currently working for JD Bains, who values his skills and experience. If the applicant’s visa remains cancelled with the consequence that he must return to India to await the outcome of JD Bains’ nomination application, given the current COVID-19 pandemic, the current widespread transmission of the virus in India, and the current restrictions on entering Australia from India, there is no guarantee that the applicant will be able to return to Australia quickly to resume work with JD Bains if the nomination is approved. That could jeopardise the applicant’s ongoing employment by JD Bains. Apart from that depriving the applicant of the benefit of working for JD Bains at least in the short to medium term, it would deprive JD Bains of the applicant’s skill and experience, which it currently requires. The Tribunal considers those matters to be too substantial to allow the applicant’s visa cancellation to stand, especially where the purpose of his 482 visa remains largely intact. In the circumstances, the Tribunal considers the correct and preferable exercise of its discretion to favour setting aside the cancellation decision. That would allow the applicant to await the outcome of JD Bains’ nomination application in Australia, and if it is approved, allow the applicant, at least, to serve out the remaining year or so of his 482 visa working for JD Bains.

    • DECISION

    1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first applicant’s Subclass 482 - Temporary Skill Shortage visa.

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

      L. Hawas
      Senior Member


    Key Legal Topics

    Areas of Law

    • Immigration

    • Administrative Law

    • Statutory Interpretation

    Legal Concepts

    • Judicial Review

    • Procedural Fairness

    • Jurisdiction

    • Remedies

    • Statutory Construction

    • Appeal

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    Cases Citing This Decision

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    Cases Cited

    2

    Statutory Material Cited

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    Rani & Ors v MIMA [1997] FCA 1493
    Newall v MIMA [1999] FCA 1624
    Rani & Ors v MIMA [1997] FCA 1493