Ascott (Migration) - [2018] AATA 5904

Ascott (Migration) [2018] AATA 5904 (5 December 2018)
Corrigendum
DIVISION:Migration & Refugee Division
APPLICANT:  Mr David Ascott
CASE NUMBER:  1803877
DIBP REFERENCE(S):  BCC2017/3954293
MEMBER:Alan McMurran
DATE OF DECISION:  5 December 2018
DATE CORRIGENDUM
SIGNED:29 May 2019
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision: At paragraph 44 of the decision             “, although such” should be deleted from the final sentence of the paragraph and the paragraph should end with a full stop.

Statement made on 31 May 2019 at 10:38am
Alan McMurran
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr David Ascott
CASE NUMBER:  1803877
HOME AFFAIRS REFERENCE(S):          BCC2017/3954293
MEMBER:Alan McMurran
DATE:5 December 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Statement made on 05 December 2018 at 3:44pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – ceased working for nominator – recruitment consultant (ANZSCO 223112) – breach of visa work condition – unexpected termination by sponsor – did not commence employment in a new nominated position within a period of 90 consecutive days – breakdown of marriage and family unit – prolonged failure to act from time of termination – attempts to gain another sponsor – medical condition, impacting employment – applicant co-parenting – applicant would suffer hardship and children be deprived of care, emotional and financial support – exercise of discretion in the best interest of the children – decision under review set aside
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994,
Convention on the Rights of Children
CASES
Kumar v Minister for Immigration & ANOR [2018] FCCA 1353
Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA20
Wan v Minster for Immigration & Multicultural Affairs [2001] FCA 568
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS
application for review

This is an application for review of a decision dated 7 February 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).
The Hearing
The applicant appeared before the Tribunal on 27 November 2018 to give evidence and present arguments. An outline of what was discussed with the applicant at the hearing appears below.
The applicant appeared at the Tribunal hearing without a representative. He explained that he had not sought advice nor obtained assistance. The Tribunal proceeded to explain the hearing process and that it was working on the information provided in the Department’s file[1] and the Tribunal’s file, and needed the hearing to obtain further information for consideration.
[1] BCC2017/3954293
The applicant said that he understood the process and that he had expected his 457 visa to be cancelled, as he had ceased working for the nominator in breach of the work condition (8107).
The Tribunal explained that the hearing involved the Tribunal firstly considering whether the grounds for cancellation existed, and then secondly as cancellation was not mandatory, consideration applying to whether discretion should be exercised in the applicant’s favour to set aside the cancelation decision.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Background
The applicant is a 45-year-old citizen of the United Kingdom. The applicant was educated at Grays School in Essex, completing his final high school year in 1988. He studied music for 3 years at the Royal College of Music in London, but did not complete that course. The applicant said that although his stated love is music, in particular as a drummer, he has been unable to make a career from music. The applicant said he started a career in advertising and then met his [wife] whom he married in 2001 in the United Kingdom.
The applicant has two children from that marriage; [Child 1] now aged [age] and a daughter [Child 2], now aged [age]. The applicant and his wife separated towards the end of 2011, but continued to live together under the one roof until towards the middle or end of 2012 when they physically separated. The parties have since divorced in the United Kingdom. The applicant said that they did not obtain any orders in relation to the two children whom they continue to parent on an agreed equal and shared basis.
The applicant’s two children and [wife] are Australian citizens. The applicant said they were unaware of these proceedings.
Employment
The applicant said that he started a career in recruitment in the UK in about 2000, and had his own company from approximately 2002 until 2006. In 2007, he said he sold his company and started work as an employee with Reed, as a recruiter. The applicant first came to Australia for three weeks for a holiday on 10 September 2007 on a short stay visitor visa.
At the end of 2007, the applicant joined Deutsche Bank in the UK. In 2010, the applicant was internally transferred by Deutsche Bank to its recruitment entity, Alexander Mann Solutions (AMS).The applicant obtained a subclass 457 temporary business entry visa to work in Sydney Australia on 29 June 2010, sponsored by AMS. The applicant said that he commenced employment in Sydney as a recruitment consultant (ANZSCO 223112) about that time. The 457 visa was valid for a period from June 2010 until June 2014.
Not long after arriving in Australia, the applicant’s marriage broke down. He said it happened suddenly in 2011, which his wife initiated. The applicant explained that he and his wife shared living arrangements for a period primarily for the sake of the children, until a physical separation in late 2012, early 2013. The applicant said there were no court orders made involving the family or children as he had worked things out with his wife amicably and they agreed to live close to one another and share the children “fifty-fifty”. The children were aged 9 and 6 respectively at separation. Contrary to the delegate’s finding, the applicant’s wife was not the appointed primary caregiver, and the children’s parenting was shared jointly.
The applicant said these events were “massively” traumatic for him and lead to him changing his employment, essentially for performance reasons. The applicant said he transferred his sponsorship as a recruitment consultant on three occasions:
·Firstly, following a performance warning from AMS, he moved to Russell Investments in about March 2012 who sponsored him until March 2013.
·Then to Woolworths who sponsored him from March 2013 to October 2013.
·Finally, to HRX Pty Ltd (HRX) who sponsored him from October 2013 until expiry of his visa in June 2014.
The applicant obtained a second 457 visa sponsored by HRX commencing on 1 September 2014, expiring 1 September 2018. The applicant ceased employment with the sponsor on 24 October 2014. The applicant said his termination by the sponsor was unexpected and he would “never have left HRX”. He said he was made redundant after a contract had expired and he was “let go”. The applicant did not notify the Department his employment had ceased.
The Tribunal asked about his relationship with his previous employers and sponsor and why he had not sought to renew his employment with HRX. The applicant said that firstly it had been indicated to him by AMS/Deutsche Bank towards the end of 2013, that he was “not performing” and he had been told at a performance review then that he would be terminated if he did not improve. He referred the Tribunal to the fact his wife had physically separated from him in mid-2012 and he was aware in 2013 it was affecting his employment. He said he had started to look for another sponsor in 2013 and did not tell Deutsche Bank. He said he “just started looking” and applied for other positions. He said he had applied to Russell Investments to take over his nomination, then to Woolworths and finally to HRX.
He said that in October 2014 he was told by HRX after they had nominated him that they were “letting me go”. The Tribunal asked why he did not inform the Department, as he was aware of the visa condition and he replied that he “wanted to get my life into order and I isolated myself, I was feeling desperate.”
On 22 September 2017, HRX advised the Department by email that the applicant had ceased employment on 24 October 2014. From October 2014, the applicant was not the subject of a new nomination or sponsorship, and was not re-employed by the approved sponsor, HRX.
The applicant stated at the hearing that he was aware of the condition 8107 attached to his 457 visa that he was required to continue to work in the nominated position for the sponsor. He said that he had intended to try and find another sponsor after his termination. He said he wanted to wait for a couple of weeks to get his house in order. He said however that he [was] unable to motivate himself. He said “time just got away, two weeks became four weeks” and although he knew he had to find another sponsor quickly, he was unable to motivate himself.
The applicant said that from October 2014 up until March 2018, he was living on savings and did not have full time employment. He said he did odd jobs from time to time during this period, and some friends helped him financially, but he did not elaborate. He said he was essentially unemployed from October 2014 to March 2018. He said this was the “darkest moment” in his life and that his motivation had been seriously affected. He said he told no one other than his two closets friends, and that he wanted to “protect the kids”, but he “couldn’t see a way out” of the situation. He said he did not think about the future and it was difficult for him to do anything, as he felt isolated and alone. He said the children did not know what was happening and “still know nothing about this”.
On 21 December 2017, the Department wrote to the applicant requesting updated information of his contact details and advising him there was an important written notification to be communicated to him. On 12 January 2018, the Department issued a Notice of Intention to consider cancellation (the notice). The applicant said that when he received that notice it was a “wake-up call”. He said he initially “panicked” but also felt “relieved” as things were now “out in the open”. He said he sought legal advice as to his options and was told that he should consider another sponsor, which then led him to start applying for other jobs. He said he would only take on contracts as he was unsure of what was happening. He said he has now found another position as a recruiter in HR which is likely to lead to a permanent position. He said that he has now been there “for 6 weeks” in an interim role as a “talent engagement manager”.
The applicant responded to the notice on 29 January 2018. The applicant stated in his reply that he accepted “full responsibility for my actions and can confirm that I have breached the terms of the visa by leaving the nominated employer and not notifying you when I left employment”. The applicant then set out some background which is referred to below. The applicant informed the Department his children were now both Australian citizens to whom he was very close and who required his support.
In his reply to the Department, the applicant did not include any details as to his personal history between October 2014 and receipt of the notice in January 2018. The Tribunal asked him why he had not included any information to the Department in his response, and he replied to the effect that he had not wanted to tell anybody, and had kept all the details to himself throughout the whole period since his termination. This was a recurring theme in the applicant’s replies by way of explanation for his silence, that he had not wanted to tell anybody, including his children about his situation and that he deliberately kept it a secret for as long as possible.
On 7 February 2018, the delegate cancelled the visa under s.116 (1)(b) on the basis that the applicant had been granted a temporary business entry subclass 457 visa, on condition that he worked for the approved sponsor in the nominated skilled occupation, and had breached that condition by ceasing employment, and did not commence employment in a new nominated position within a period of 90 consecutive days after his employment with the nominated sponsor ceased. The applicant said he had read the decision and had “expected it” and understood the reasoning, and had provided a copy to the Tribunal with his application.
The delegate found this was not an appropriate case to exercise discretion in favour of the applicant and not cancel the visa. The delegate quite appropriately found that the failure to contact the Department was a significant factor against the exercise of discretion and which outweighed the personal issues raised by him about mental health issues.
The delegate noted the applicant’s concerns that he wishes not to be separated from his children with whom he has established close bonds. In considering the interests of the children, the delegate came to the view the children would not be separated from the “primary caregiver” were the cancellation to proceed. It is a matter however for closer consideration, as the applicant has stated he shares the children “equally” with their mother in terms of the time he spends with them and there are no parenting orders.
The applicant informed the Tribunal that he has now “come out the other side” and in March 2018 found an employer. He said he has found a new partner since May 2018, whom he loves and wants to be with, and that he has moved on from “self-pity”. He said that he and his new partner intend to start living together early in the New Year when she buys a house, and that he has a temporary contract with Diageo PLC as a talent engagement manager, who have told him they will offer him a full time role in early 2019 and seek to sponsor him in that position when the incumbent leaves. He said they cannot employ him or nominate him in the role at present as the position is not yet available.
At the time of cancellation in February 2018, the applicant’s visa was not due to expire until 1 September 2018. At the time of this hearing, the visa would have had already expired. The applicant was asked why he had not sought advice or applied for another visa which might be open to him, including a partner visa, and he responded “because I have had my head in the sand” and “I was waiting for the outcome of this decision”.
The Tribunal found some of the applicant’s answers difficult to understand in that, for example, he had said he had felt “much better” since March this year and was “the old me”, and had felt confident and capable, yet had still done nothing by the time of hearing in November 2018 to ameliorate his visa status, notwithstanding that he was aware throughout that he had remained in breach of his visa condition for a very long time. Even though the matter had been brought to his attention in January 2018, he had still done nothing to rectify his visa status. He had progressed to the point of looking for new employment and told the Tribunal of interim jobs he had obtained first with RT Health in March 2018, then to Hammond Holdings in June 2018 as a recruiter, and then recently (15 October 2018) had commenced a contract with Diageo PLC. The Tribunal is satisfied this employment was not related to his actual sponsor. The cancelled visa with HRX expired in September 2018.
Personal and Family Relationships
The applicant said he had formed a deep and serious relationship with his new partner whom he met in May 2018 (Sally), and they had discussed moving in together, although there was no information or evidence provided about that relationship, other than from the applicant himself at the hearing. The applicant told the Tribunal “I haven’t told her about this yet” which explains why she has not appeared in support, and is consistent with the applicant’s view of dealing with the matters exclusively and on his own. The Tribunal notes that there was no information provided from the applicant’s ex-wife, with whom he says he has a good relationship, or about his relationship with the children or the joint parenting responsibilities or with the various employers.
The Tribunal again asked the applicant to comment on why he had not involved others or sought their assistance. He told the Tribunal he intended to deal with the issue himself as it was his responsibility and he had created the problem, and he did not want to involve others. Even at the hearing date, he informed the Tribunal he is yet to tell his children of his circumstances. The Tribunal found this explanation somewhat incongruent, given the applicant’s statement that since March 2018 he had apparently turned the corner and was coming out of himself, and was more positive, but still adopted the approach of silence and telling nobody, consistently with what he had been doing since October 2014.
The Children
The applicant said he didn’t want to worry his children. He said “I will never tell the children”. He said his son is going into year 11 at [School 1] and his daughter into year 10 at [School 2]. The applicant said that the thing he is most proud of is his close relationship he has built with his children. He fears that if he returned to the UK and was separated from the children, it would have a detrimental impact on their lives, especially for [Child 1] who would be “devastated”.
The applicant said that he and his ex-wife had remained living close to each other so as to share responsibility for the children. He said he sees them on Sundays, Wednesdays, and Fridays and on alternate weekends. He said his ex-wife has remarried and has another child to that relationship. His wife now lives at [Suburb 1] and the applicant at Warrawee, a nearby Sydney suburb. He said that he had taught his son music and drumming and that they have a close relationship. This is confirmed in the statement from one of the referees, Martyn Wild, who expresses an opinion the children are “alienated” from their mother and spend most of their time with the applicant. The second reference from Dr Zoe Matheson in February 2018 refers to the applicant as her support and states that she “cannot imagine how hard mine and my son’s life would become” if the applicant were not “on hand”.
The Tribunal is conscious that notwithstanding opportunity provided to the applicant to produce information to support his statements about his health and his employment and his personal situation, before the hearing, very little documentation was provided other than two personal references from friends and a medical certificate that was “woefully inadequate”.[2] The medical information is from a general practitioner and dated 10 months earlier [in] February 2018, and simply states the applicant is [receiving some treatment]. The applicant had apparently not sought other professional assistance for [treatment].
[2] see Kumar v Minister for Immigration & ANOR [2018] FCCA 1353
The applicant said that he was still having [treatment] from his general [practitioner]. He said he did not wish to return to the UK, but prefers to remain in Australia to be with his new partner, where he has found love again, and to be with his children and support them both. He said his father had recently died and that his mother and brother were living in Ireland. He said there were no relatives left in the UK except for an elderly uncle and he was not particularly “close” with any of them.

The Tribunal found the applicant to be candid as to his emotions and feelings at the hearing. The Tribunal is satisfied that much of what he said confirmed the applicant clearly understood he had breached his visa condition, and that he sought to give detailed personal reasons for allowing the breach to continue and for so long, and for his failure to act.
Some of those reasons appear implausible, but the thrust of the applicant’s explanation was his [emotional state] following the breakdown of his marriage and the loss of his employment, and his inability to help himself or to recover sufficiently to pull himself together and his unwillingness to share this situation with anybody other than one or two close friends. The applicant was unwilling to seek assistance or advice and determined to continue to deal with the matter entirely on his own. He was asked about how this affected the children and he said he did not tell them and “tried to shield them”.
At the end of the hearing, the applicant informed the Tribunal that he intended to seek immediate assistance and advice as to what he might be able to do about a further substantive visa application, including for a partner visa, or sponsorship, where open to him. He said that he had made his life in Australia, that he was passionate about developing a marching band with drum corps and had started a voluntary performing group call Sydney Sound.
The Tribunal put to the applicant that he had not really thought about the consequences of taking no action in response firstly to losing his job, and then secondly after being made aware of the cancellation, had sought no advice. The Tribunal put to the applicant that but for the notice from his sponsor to the Department he would still be living in the community without a visa, that he knew his visa was due to expire in any event by September, and he had taken no steps about that. He said he did not know what he was going to do and was relieved when he received the notice of intended cancellation. The applicant said he now understood the time imperative to take whatever steps might be open to him as soon as possible and that he needed to “get my head out of the sand”. He said that he is [now] ready to “move on”. He said he has a lot to give to Australia, his family and to himself and now wants to do something about it. He said he wants to get another degree or qualification and he wants to “see my kids grow up”.
The Tribunal then proceeded to consider the relevant matters under section 116 of the Act.
consideration of Claims and evidence
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)).
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Section 116(1)(b) states that the Minister may cancel a visa if satisfied that the visa holder has not complied with a condition of the visa. The relevant condition in this instance is condition 8107.
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, and which may include:
·the purpose of the applicant’s travel and stay in Australia,
·the degree of hardship caused by the cancellation,
·the circumstances surrounding the cancellation,
·the past and present behaviour towards the Department,
·any Australian International obligations under any international agreement,
·and the impact of cancellation on family violence victims and
·any other relevant matters.
The Tribunal notes that “relevant matters” are not prescribed or limited in the Act or Regulations. Guidance is however provided by the Department’s Procedures Advice Manual on general visa cancellation powers, although such
Does the ground for cancellation exist?
s.116(1)(b) - non-compliance with conditions
A visa may be cancelled under s.116(1)(b) if the Minister 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 that the applicant, who was a subclass 457 visa holder, must work only in the occupation listed in the most recently approved nomination and only in the position in the business of the sponsor, or an associated entity of the sponsor.
The condition further requires that the applicant must commence work within 90 days after his arrival in Australia and that if he ceases employment, the period during which the holder ceases employment, must not exceed 90 consecutive days.
There is no issue in this particular instance and the Tribunal finds that the applicant relevantly ceased employment with HRX as indicated on 24 October 2014, while a 457 visa holder and to whom the condition 8107 applied.
In his response to the Notice, the applicant stated he accepted “full responsibility for my actions and can confirm that I have breached the terms of the visa by leaving the nominated employer and not notifying you when I left employment”.
At the hearing, the applicant confirmed this was the case and that he was aware the visa condition 8107 had been breached as he had ceased working in the occupation listed in the most recently approved nomination.
For these reasons, the Tribunal is satisfied that the applicant as the holder of the visa has not complied with a condition of the visa and 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 visa should be cancelled.
Consideration of discretion
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as a guide.
The purpose of the applicant’s travel and stay in Australia
The subclass 457 visa for which the applicant was nominated is for skilled workers arriving from overseas to work in Australia on a temporary basis. That was the purpose of the applicant’s travel. The applicant came with his wife and two children to take up a position with AMS, relocated from the United Kingdom.
The Tribunal finds the applicant’s purpose was to stay in Australia on a temporary basis from June 2010 as a skilled recruitment consultant. The applicant completed working on his visa in or about June 2014, and was successfully nominated for a second 457 visa from September 2014. That visa was also granted for a temporary stay until September 2018.
Based on the information before the Tribunal, the Tribunal is satisfied that the applicant’s employment ceased on 24 October 2014. The Tribunal is satisfied this occurred at the employer’s initiative and the applicant was “let go”. The Tribunal finds that the applicant did not inform the Department and the applicant remained in breach of his work condition from October 2014 until February 2018 when his visa was cancelled.
The Tribunal further finds that the applicant has not found another nominator or sponsor to continue to employ him in a position as a recruitment consultant. The Tribunal is satisfied that the applicant’s prolonged failure to act from the time of his termination in October 2014 and continuing, even as at the date of the hearing in November 2018, is a serious breach of condition 8107. The Tribunal is not satisfied that these were matters entirely outside the applicant’s control, noting that during his previous visa he had managed to find at least three alternative sponsors who employed him, Russell Investments, Woolworths and finally HRX.
The Tribunal is of opinion that the failure to act for such a prolonged period has not been adequately explained by the applicant and must count against him in terms of the exercise of discretion.
The degree of hardship caused by the cancellation
On the information before the Tribunal, it is evident that leaving Australia would involve some hardship to the applicant as his children remain here with their mother. The applicant has few relatives remaining in the United Kingdom, other than his mother and brothers in Ireland.
The Tribunal however finds it does not accept that the applicant would not be able to re-establish himself in United Kingdom, as he is a qualified and experienced professional who has previously worked at Deutsche Bank in the recruitment industry and ran his own company. The Tribunal takes account of the fact the applicant came to Australia on a temporary basis not intending to settle here permanently or for an indefinite period.
The applicant said that he would be going back to United Kingdom to “nothing”. He said his life is now here in Australia with his children and his girlfriend. He said to return to the UK would be “utter devastation”.
In that regard, the Tribunal accepts that the applicant will suffer further hardships. The Tribunal notes however that the applicant has not yet exhausted any other visa opportunities open to him and the outcome and timing of that process is unknown. Furthermore, the Tribunal is not persuaded that the applicant will not continue to obfuscate as he has done in the past and again fail to be proactive in regularising his visa status. As at the date of hearing, the applicant had taken no steps to apply for any substantive visa that may have been open to him.
The applicant has already experienced significant hardship through the breakdown of his marriage, but they are not matters related to the issue of the visa. The Tribunal is satisfied on the applicant’s evidence that he has maintained a good relationship with his family and his children and there is no information to show that relationship will not continue, even should the applicant return to the United Kingdom.
On balance, and taking into consideration all the relevant matters put to the Tribunal by the applicant, the Tribunal is not satisfied that the degree of hardship would be such as to warrant the exercise of discretion in favour of the applicant not to cancel the visa.
Circumstances surrounding the cancellation
On the information before it, the Tribunal is satisfied that the cancellation arose due to the initiative of the sponsor, not the applicant. Despite the applicant’s emotional and physical [state] following the marital breakdown, he had remained employed until terminated by HRX, and through no fault of his own.
The Tribunal takes account of the fact that on at least two previous occasions, at least one of which followed the marital breakdown, the applicant was able to find re-employment with another sponsor. The applicant has shown that he could be successful and adaptable where required, but since October 2014 until March 2018, has demonstrated no intention or further ability to do so.
The applicant has put forward no real explanation for his failure to pursue re-engagement as required by the regulation within a 90-day period following termination, or at all. Although the circumstances in which the ground for cancellation arose may have been beyond the applicant’s anticipation or control, the fact that he did not take steps as he had previously successfully done to find new employment must count against him.
In the circumstances, the Tribunal finds that when coupled with the significant period since his employment terminated, it is not persuaded by the circumstances surrounding the cancellation that those circumstances were such as to warrant the exercise of discretion now in favour of the applicant.
Past and present behaviour towards the Department
At the hearing, the applicant has acknowledged his own inability to deal with the circumstance and apologised for the fact he ignored the obligation which he understood required him to notify the Department. This continued for a period in excess of 3 years from October 2014 until February 2018.
On the information before the Tribunal, the applicant has not sought to regularise his visa status and has made no further applications since July 2014 when he applied for the 457 visa, which has since been cancelled and expired in any event in September 2018.
The Tribunal finds there has been no communication with the Department voluntarily by the applicant, who waited until he was informed of the cancellation in February 2018. This amounts to the applicant remaining in the community undetected until he was contacted to provide his address and details in December 2017 to be informed of the cancellation. The Tribunal is of the opinion that ignoring such an obligation and not attempting to communicate with the Department or to seek advice as to what might be done shows a serious lack of integrity and transparency by the applicant.
Whether there would be consequential cancellations under section 140
The Tribunal is satisfied that on the information before it there will be no consequential cancellation of any visa issued to the applicant’s former wife or children, who are all now Australian citizens.
The Tribunal finds that in considering whether to exercise its discretion to cancel the visa, the applicant will have time to organise his affairs and have an opportunity to depart Australia without the risk of detention or removal action, which is not a necessary consequence of the cancellation decision.
Furthermore, the applicant is currently on a bridging visa and as a result of a cancellation decision, section 48 of the act prescribes that notwithstanding the cancellation under section 16, the applicant may still apply for certain prescribed class of visa, including a partner visa. The regulations however preclude any further business or skilled visa applications and impose a bar. The Tribunal has taken these limitations in relation to future applications into account.
Australia’s obligations under relevant international agreements and the best interests of the children
Perhaps the most difficult issue in this review is consideration of the best interests of the children. It is clear to the Tribunal the applicant has a deep and meaningful relationship with his two teenage children.
The Tribunal is satisfied that the children’s current living arrangements (accommodation) will be minimally affected, as they will remain in the care of their mother. The children will remain in Australia as they are now citizens, and will be able to continue their education and their current family relationship with their mother and stepfather.
The children are now aged 13 and 16 and are less dependent than they were when the applicant first arrived eight years ago in 2010, when aged 5 and 7 respectively. The applicant has been integrally involved in the children’s’ upbringing throughout those critical years and the Tribunal is satisfied he has established a warm and loving and supportive relationship.
The Tribunal however notes that if the visa is cancelled and the applicant compelled to leave Australia, there will be an enforced family separation between the father and his two children. The Tribunal is concerned this is a serious consequence for both the applicant and the children.
The courts have been regularly called upon to consider the relevance of the children’s best interests.[3] In Teoh, the High Court was concerned with the importance of Australia ratifying international treaties particularly that concerning the Convention on the Rights of the Child. That case highlighted the importance of the proper consideration of the interests of the child by allowing an applicant to make appropriate submissions in that regard.
[3] See Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA20,(Teoh) cited in Wan v Minster for Immigration & Multicultural Affairs [2001] FCA 568 (Wan);
The case is supported by the decision in Wan which notes that in order to carry out the Tribunal’s task with respect to the proper exercise of its discretion, the correct approach is to assess “whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration”.[4] The Tribunal understands that to mean that in considering the best interests’ test as a primary issue, it may on its own outweigh all other relevant facts and circumstances in the consideration.
[4] Wan at par 32, per Branson, North and Stone JJ
The applicant was asked to comment on what he anticipated would be the impact on the children. He spoke of the impact on the children directly, by not being there to support them and mentor them, and on his girlfriend by being separated from her, and on himself by returning to “nothing” in the United Kingdom.
The Tribunal is mindful that the applicant may not be able to return to Australia for a considerable period and the children would need to travel to the United Kingdom to visit their father, which would impose both a financial and emotional strain on that relationship.
The Tribunal notes that the applicant has said at the hearing he pays the children’s mother $500 per month as informal maintenance. There is no information to suggest the applicant will not be able to continue to pay some financial support although it is evident he would be returning to the United Kingdom without employment. The applicant has the opportunity in Australia to continue employment with his current employer as sponsor.
The Tribunal finds it is satisfied that the applicant should have the opportunity to pursue that employment, which ultimately is in the children’s best interests. It keeps the applicant in a position where he can support the children and himself and maintain a relationship which has been solidly built.
The Tribunal has come to the view that in this instance, the children’s’ best interests are for the family, meaning the father and the two children to remain together, and not to become separated. The Tribunal finds it is satisfied that the applicant, to his credit, has maintained a relationship on a positive basis, even though he has not told the children the truth about his status.
The Tribunal does not share the applicant’s view that it is an imperative to shield the children from the truth of his status. But the Tribunal finds this decision is not about the interests of the applicant, but rather those of the children.
The courts have said that the best interests of the children are a primary consideration and may outweigh other considerations in terms of exercising discretion in a cancellation case.
This may be especially so where the applicant as here is not responsible or complicit in conduct which has led to the cancellation. Having considered all the information before it, the Tribunal is satisfied that the applicant is not directly complicit in his current circumstances, apart from the delay as he has already conceded, as he has failed to take any steps whatsoever for a period exceeding 3 years. He was not however responsible for his initial termination or the irretrievable breakdown of his marriage and the descent into despair which followed.
The Tribunal has considered this circumstance at length as to the impact on the family and the father’s relationship, in considering whether the visa should be cancelled. The Tribunal is mindful that the applicant has said he is going to initiate a partner visa application in light of his current relationship, and the outcome of such application which might yet be some time off before finalising. The Tribunal has taken careful account of the applicant’s submissions, and he being unaware and unrepresented at the hearing, the emphasis in his submissions and the importance to him of not being separated from his children.
The Tribunal finds it is satisfied that the applicant’s relationship with the children is sound and solidly built and that the cumulative effect of all the matters considered in this review concerning the children is for the Tribunal to conclude that the proper exercise of discretion in the best interest of the children, as the primary consideration, is for the applicant to be physically present in Australia.

That is not to derogate from the adverse findings already made about the applicant’s conduct, or the delegate’s decision, but to find that those concerns in this instance are outweighed by the Tribunal’s finding that the primary consideration is what is in the best interests of the children.
The Tribunal is not aware of any other relevant matters which might impact on the exercise of discretion.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled
decision
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa..
Alan McMurran
Member