CHONG (Migration)

[2018] AATA 4191

CHONG (Migration) [2018] AATA 4191 (7 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Ka Nee Chong
Mr Ching Liong Fong
Master Shawn Sun

CASE NUMBER:  1712267

HOME AFFAIRS REFERENCE(S):           BCC2017/545462

MEMBER:K. Chapman

DATE:7 September 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

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

Statement made on 07 September 2018 at 3:51pm

CATCHWORDS
MIGRATION – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Business (Long Stay)) – sponsor’s sponsorship cancelled – bar from further sponsorship – knowledge of sponsor’s underpayment to staff – ceased employment – not subject of an approved sponsor – best interest of child – difficulty to resume studies in home country – degradation of child’s language skills – harm suffered from family – significant delays in raising claims – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), ss 116, 140M, 348
Migration Regulations 1994 (Cth), r 2.43

CASES
Botha v Minister for Immigration and Border Protection [2017] FCA 362
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 5 June 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa under s.116 of the Migration Act 1958 (‘the Act’). All of the applicants are Malaysian nationals.

2. The delegate cancelled the visa under s.116(1)(g) of the Act on the basis that the first named applicant’s sponsor, WY Pty Ltd, was cancelled and barred for one year pursuant to s.140M of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before it 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.

4. The visa cancellation decision record of 5 June 2017, a copy of which was provided to the Tribunal by the first named applicant (hereafter ‘the applicant’), reveals the following particulars:

   a.on 14 July 2015, the applicants were granted Subclass 457 Business (Long Stay) visas;

   b.the standard business sponsor who nominated the applicant in the most recently approved nomination, for work in the occupation of Accountant (General) ANZSCO code 221111, is WY Pty Ltd;

   c.WY Pty Ltd had their sponsorship cancelled and they received a bar from further sponsorship pursuant to s.140M of the Act;

   d.on 8 May 2017, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) on the basis that her sponsor was cancelled and barred pursuant to s.140M of the Act;

   e.on 15 May 2017, the applicant responded in writing to the NOICC accepting that the ground for cancellation exists, however she contended she was not involved in any wrongdoing;

   f.on 5 June 2017, the delegate cancelled the applicant’s Subclass 457 Business (Long Stay); and

   g.by operation of s.140 of the Act the second and third named applicants (the husband and child of the applicant) were subject to consequential cancellation of their visas.

5. On 9 June 2017, the applicant applied to the Tribunal for review of the visa cancellation decision, providing a copy of that decision with her application. The applicant appeared before the Tribunal on 30 August 2018 to give evidence and present arguments. She confirmed that no other person was providing evidence at the hearing. The applicant gave her evidence using the English language. The applicant was represented in relation to the review by her registered migration agent. Pre-hearing submissions and evidence were received by the Tribunal on behalf of the applicant. Pay records were also submitted to the Tribunal during the hearing. The aforementioned material has been duly considered by the Tribunal. 

6. 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

7. 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)(g) of the Act, which provides that a visa may be cancelled if a prescribed ground applies to the visa holder. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (‘the Regulations’). In the present case, the ground in r.2.43 (1)(l)(iv) is relevant as the applicant’s sponsor has been cancelled or barred pursuant to section 140M of the Act. 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.

   The review hearing

8. The Tribunal began the review hearing by explaining its role and the purpose of the hearing. The Tribunal informed the applicant that her visa was cancelled under s.116(1)(g) of the Act as the delegate concluded the prescribed ground in r.2.43(1)(l)(iv) existed as her sponsor was cancelled and barred pursuant to s.140M of the Act. The Tribunal explained to the applicant that, if satisfied the ground for cancellation is made out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

9. The applicant gave oral evidence to the Tribunal which may be summarised as follows. She came to Australia initially as a Visitor, then studied accountancy, following which she obtained her Subclass 457 visa. She obtained 10 years experience as a bookkeeper in Malaysia prior to coming to Australia. The applicant’s husband first worked with WY Pty Ltd in 2009 and assisted her to obtain part time employment with the company during her university studies. Her part time employment involved payroll, internal control and administrative tasks. WY Pty Ltd operated three Asian fast food takeaway outlets.

10. Upon completion of her studies she became a fully qualified accountant and was sponsored by WY Pty Ltd in the role of Accountant. The applicant’s aspiration is to obtain permanent residency through a Subclass 186 visa. The applicant advised that she had done nothing wrong in relation to her sponsor being cancelled and barred. The applicant advised that she experienced pain when her Subclass 457 visa was cancelled as she had sold everything in Malaysia because she felt she was close to gaining permanent residence in Australia.

11. The applicant initially advised that she ceased employment with WY Pty Ltd in June 2017 when her visa was cancelled. Her husband continued working with the company whilst holding a Bridging Visa E until October 2017. The applicant attempted to obtain a new employer but learned she was pregnant in July 2017 and pursued the pregnancy having previously had several miscarriages. The applicant gave birth to her second child in February 2018. In April 2018, the applicant obtained part time employment with Nelson and Tiong Pty Ltd. This company took over the fast food businesses run by WY Pty Ltd during 2017. The applicant currently works as a cashier in one of the fast food outlets. She works three days per week. The applicant’s current employer cannot sponsor her for a visa given the nature of its business structure.

12. When asked by the Tribunal to outline why WY Pty Ltd had its sponsorship cancelled and barred, the applicant initially provided a vague account of staff underpayment. She noted the company was banned around February 2017 and at that time she had worked there around two years in a full time role as an accountant. The applicant maintained that senior management such as the principal Mr Yew Hwa Chong, and senior accountant, Mr Norman Foo, shielded her from exposure to the past wrongdoing of the company with regard to the underpayment of staff in 2009. The applicant indicated that these matters arose prior to her employment with the company. The applicant advised that she and Mr Foo were the only accountants employed at WY Pty Ltd and maintained that her knowledge of past events was limited. The applicant indicated that she had done nothing wrong. She acknowledged that the company, Mr Chong and Mr Foo received penalties for the underpayment of staff.  

13. The applicant advised that when she received the NOICC she consulted another migration agent who advised her she must cease work. The applicant then began to hand over her role to new staff. She clarified that she ceased in her full time role with the company in around February or March 2017 and then continued in a part time capacity until finally ceasing her employment in June 2017. The applicant confirmed she had not worked for an approved sponsor in an approved occupation since ceasing her employment with WY Pty Ltd. When the Tribunal raised to her attention that this evidence might tend to suggest that she breached Condition 8107 by ceasing employment for a period exceeding 90 days, the applicant responded that she needed to work on her Bridging Visa E to support her children. Her representative submitted that the applicant ceased work with WY Pty Ltd due to advice from a previous migration agent and she did not concede Condition 8107 was breached.

14. The applicant informed the Tribunal that Nelson and Tiong Pty Ltd wish to give her an accountant role but cannot sponsor her due to their business structure. The applicant is searching for a new employer, following the birth of her child in February 2018. A prospective employer has apparently shown interest in her but they are not committed and there are no formal arrangements. The applicant continues to work in her part time role with Nelson and Tiong Pty Ltd as a cashier in one of their fast food outlets.

15. When asked to describe her present circumstances, the applicant advised she had her first child in Malaysia to her former husband. They were divorced in Malaysia. The applicant met her current husband however his mother only agreed to their marriage if the applicant travelled to Australia with her son. The applicant indicated she came to Australia to study and her eldest child was left in Malaysia for three years with her mother during this period of study. The welfare of the child was a concern for the applicant during this time. She cited that he often did not receive his lunch and his educational grades slipped. The applicant regrets the three years she lost with her child during her tertiary study in Australia.

16. The applicant informed the Tribunal that her eldest child is enjoying the environment in Australia and is studying secondary school. He became stressed and unhappy when learning that they may need to return to Malaysia. No medical evidence was before the Tribunal concerning this child. The applicant advised her son had given up the Mandarin language and would be unable to resume it if he returned to Malaysia. The Tribunal raised with the applicant that it might have difficulty accepting that her native Mandarin speaking child, who had been in Australia for approximately three years, would not be able to utilise the Mandarin language if he returned to Malaysia, inviting her comment. The applicant responded that she too was surprised by the degradation of her son’s Mandarin language skills.

17. The applicant then advised that her son was harmed by her brother whilst living in Malaysia when she was studying in Australia. She also advised that she feared having a second divorce if she returned to Malaysia citing that if her mother in law wanted her son to divorce her then he would do it. Following questions from the Tribunal, the applicant confirmed that neither her husband nor mother in law had ever expressed their desire for a divorce to take place. When asked by the Tribunal why then she would worry about being divorced again, the applicant indicated her mother in law forced her to terminate prior pregnancies with her husband. The Tribunal drew to the applicant’s attention that written submissions on her behalf refer to her having miscarriages due to stress but do not refer to this allegation concerning her mother in law or to harm allegedly suffered by her son in Malaysia at the hands of her brother and invited her to comment on the delay in raising these claims, which were not previously before the Department or the Tribunal. The applicant indicated that traditional Chinese families don’t discuss such matters such as the harm of children and that she told her husband she wanted to proceed with the pregnancy of her second child and he permitted this, although he usually follows his mother’s wishes. The Tribunal observed the applicant to provide her evidence regarding these matters in a vague, disjointed and evasive fashion.

18. The applicant confirmed she had not worked without work rights in Australia. She denied breaching any visa conditions, including condition 8107. The Tribunal raised with the applicant the following matters and invited her comment. All of the visas she has held in Australia, including the Subclass 457 visa, are temporary visas. The purpose of granting a temporary work visa is to enable an Australian business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. There should be no expectation that the grant of a Subclass 457 visa would necessarily lead to permanent residency or an extended stay in Australia. The applicant responded that she tried to obtain new employment following her cessation of work with WY Pty Ltd but she received feedback that new Regulations and her holding a Bridging Visa E saw employers not minded to hire her. Her representative submitted that the existence of permanent visas such as the Subclass 186 suggested the Subclass 457 visa was not necessarily a temporary pathway. The Tribunal raised with the representative that the grant of a Subclass 457 would not necessarily result in the grant of a subsequent permanent visa.

19. The Tribunal raised with the applicant that given the Subclass 457 visa is a temporary work visa, its grant should not create an expectation of further stay, and she has not worked for an approved sponsor in an approved occupation since 5 June 2017, these matters might tend to weigh in favour of cancelling her visa, inviting her comment. The applicant had no comment to make. When asked by the Tribunal if there is any reason she cannot make an offshore application for another visa, such as another temporary work visa, she replied that there is not and she is still considering other options.

20. When the Tribunal raised with the applicant that she appears to have gained skills and experience in the Australian work force which would make her more marketable in the Malaysian job market, she indicated that the salary in Australia is more favourable for raising a family whilst in Malaysia it is significantly lower. She added that in her children’s situation they would need to receive a private school education which she cannot afford and this will result in them being home schooled. The applicant indicated her family (and in-laws) won’t help her and she is responsible for raising the two children. She maintained that it would be difficult for her son to pursue his education in Malaysia. When the Tribunal raised with the applicant that it might have difficulty accepting that her Malaysian citizen son could not resume his education in Malaysia, she replied that he faced language difficulties, a looming gap in schooling, there were difficulties with the State education system and he is in Year 9 in Australia and requires three more years to finish high school.

21. When asked by the Tribunal if she had a compelling need to remain in Australia, the applicant replied that her eldest child is her main concern. She advised the boy previously attended school in Malaysia where Mandarin was the main language, although some Malay and English were also used. The applicant confirmed to the Tribunal that her son spoke Mandarin as a child. As previously noted, the Tribunal raised with the applicant that it might have difficulty accepting that her native Mandarin speaking child, who had been in Australia for approximately three years, would not be able to utilise the Mandarin language if he returned to Malaysia, inviting her comment. The applicant responded that she too was surprised by the degradation of her son’s Mandarin language skills.

22. When asked by the Tribunal if she will face any hardship if her visa is cancelled, the applicant replied that she will face financial hardship, adding that she sold her new car and property in Malaysia. When asked by the Tribunal why she would do this whilst only in possession of a temporary visa, the applicant responded that she was close to obtaining a Subclass 186 visa prior to her Subclass 457 visa being cancelled.

23. The Tribunal raised with the applicant that most temporary visas, including the Subclass 457 visa, require applicants to meet Public Interest Criterion (PIC) 4013 and 4014. However, given her circumstances, including that she obtained a Bridging Visa E shortly after her Subclass 457 visa was cancelled, it appeared that she is not likely to be subject to an exclusion period under PIC 4013 or 4014 if her visa is ultimately cancelled. The applicant had no comment to make.

24. The Tribunal raised with the applicant that if her visa is cancelled, and she does not hold a valid visa, she would be an unlawful non-citizen and subject to immigration detention, it would be difficult for her to make visa applications in Australia and she would be liable to removal from Australia, inviting her comment. The applicant had no comment to make. The Tribunal raised with the applicant that if her visa is cancelled, the secondary visa holders will have their visas cancelled by operation of s.140 of the Act, inviting her comment. The applicant had no comment to make. When asked by the Tribunal if there were any international obligations concerning her case, the applicant replied that there were not.

25. When asked by the Tribunal if she, her husband and children would return to Malaysia together if her visa is cancelled, the applicant replied that they would. She added it would be hard for her son to maintain his education in Malaysia, particularly given he cannot speak the native language. The Tribunal again invited the applicant to comment on its concerns regarding the veracity of her claim that her son could not resume use of the Mandarin language. The applicant had no comment to make. The Tribunal invited the applicant to give evidence on any other matters that she wished to raise in relation to her visa cancellation, however she had no further evidence to provide.

26. The applicant concluded her oral evidence by indicating that she wants to obtain a new employer in Australia and she needs time to do this. She confirmed she had no further evidence to provide to the Tribunal. The representative was invited by the Tribunal to make oral submissions, however she declined to do so. The Tribunal notes that it had the benefit of observing the applicant provide her oral evidence. It observed her to deliver some of her oral evidence in a vague and disjointed fashion, with her demeanour evasive at times. For example, this was demonstrated during her oral evidence concerning her knowledge of the underpayment of staff by WY Pty Ltd, her insistence that her eldest son could not resume education in his native Mandarin language, and with respect to her claims concerning harm suffered by her son in Malaysia and her mother in law forcing her to terminate earlier pregnancies. Following careful consideration, due to these matters, the Tribunal developed concerns with the applicant’s credibility.  

    Does the ground for cancellation exist?

1. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (‘the Regulations’). In the present case, the ground in r.2.43 (1)(l)(iv) is relevant as the applicant’s sponsor has been cancelled or barred pursuant to section 140M of the Act. The Tribunal notes that contentions were advanced on behalf of the applicant that the cancellation and barring of her sponsor, WY Pty Ltd, were unfair given these decisions were partially informed by a relatively minor underpayment of her wages. For completeness, the Tribunal notes it was conceded that WY Pty Ltd had been found to have breached the Fair Work Act 2009 by the Federal Circuit Court for previous underpayment of wages to other staff, with penalties being levied in respect of these matters, and ultimately that the sponsor was cancelled and barred in accordance with section 140M of the Act.

2. Following careful consideration of the evidence, the Tribunal finds that the applicant’s sponsor, WY Pty Ltd, was cancelled and barred in accordance with section 140M of the Act. Accordingly, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) 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

3. 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’.

4. The Tribunal has also very carefully considered the attribution of weight to the evidence before it in assessing whether the applicant’s visa should be cancelled. In doing so, the Tribunal is mindful of the observations of Collier J in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [39]:

   There is ample authority at high level in this country that it is for a decision-maker to attribute such weight to relevant information as it sees fit: see for example Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24]; Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [197]; the plurality in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33].

5. The applicant’s background has been detailed above. She held a series of temporary visas prior to the grant of the temporary Subclass 457 visa on 14 July 2015. The Tribunal considers that the purpose of the applicant’s stay in Australia holding a Subclass 457 visa is to work for an approved business sponsor in the approved nominated occupation of Accountant (General), ANZSCO code 221111. The applicant’s visa was cancelled on 5 June 2017 and she has not worked in this occupation since that time. Her Subclass 457 visa would have expired on 14 July 2019 had it not earlier been cancelled.

6. The Tribunal considers it a matter of significance that the applicant has not yet obtained a current approved nomination. The Tribunal accepts that she gave birth to her second child in Australia in February 2018. However, she has had a reasonable period of time in which to seek alternate employment opportunities and become the subject of an approved nomination by an approved sponsor, she could pursue other visa options offshore, she has not worked for an approved sponsor with an approved nomination for a significant period of time and it is inconsistent with the purpose of the Subclass 457 visa to allow her to remain in Australia working as a part time cashier whilst she looks for another nomination. Following careful consideration, the Tribunal considers that the purpose of the applicant’s stay in Australia is no longer extant given the aforementioned matters. Accordingly, the Tribunal finds that this factor weighs strongly in favour of cancelling the applicant’s visa.

7. The applicant advised the Tribunal that she ceased employment with WY Pty Ltd upon her Subclass 457 visa being cancelled on 5 June 2017 and that she has not worked for an approved sponsor with an approved nomination since that time. Accordingly, the Tribunal finds that the applicant breached condition 8107(3)(b) of her visa as the period during which she ceased employment with WY Pty Ltd exceeded 90 days. It follows that the Tribunal does not accept submissions advanced on behalf of the applicant that there is no such breach due to her allegedly acting upon advice from a previous migration agent. For completeness, there is no evidence before the Tribunal that the applicant has failed to comply with visa conditions other than 8107. Following careful consideration, the Tribunal finds that the extent of the applicant’s compliance with visa conditions weighs moderately in favour of cancelling her visa given the centrality of compliance with condition 8107 to the purpose of the grant of the Subclass 457 visa.

8. The Tribunal has also had regard to the circumstances of the visa cancellation. The ground for cancellation arose when the applicant’s sponsor, WY Pty Ltd, was cancelled and barred pursuant to s.140M of the Act in connection with the underpayment of wages in its Asian fast food takeaway outlets. The Tribunal accepts that such underpayments took place prior to the applicant working with WY Pty Ltd and that the ground for cancellation did not arise due to any of her actions. The Tribunal finds that the circumstances in which the ground for visa cancellation arose weigh moderately against cancelling the applicant’s visa given her lack of culpability in the wrongdoings of WY Pty Ltd. For completeness though, the Tribunal notes that the applicant’s oral evidence seeking to disavow knowledge of the aforementioned matters detracted from her credibility as previously outlined.

9. The Tribunal has also considered the hardship that may be experienced if the applicant’s visa is cancelled and whether there is any compelling need for her to remain in Australia. The Tribunal notes the applicant gave oral evidence indicating that she will face financial hardship if departing Australia because she has the opportunity to derive more income in this country than in Malaysia and because she has sold her assets there. Whilst the Tribunal accepts that it is the preference of the applicant to remain working in Australia where wages are higher, it notes she has developed valuable skills and experience which would make her more marketable in the Malaysian job market. The Tribunal does not accept that the applicant will be unable to resume her career and re-establish herself in Malaysia given her personal qualities, educational attainment and work experience. Accordingly, the Tribunal does not find that a compelling need to remain in Australia arises from her claims of financial hardship, and that any such hardship weighs only slightly against the cancellation of her Subclass 457 visa, particularly given the temporary nature of this visa.

10. The Tribunal has carefully considered the applicant’s claims concerning the hardship faced by herself and members of her family, particularly her eldest son, if they depart Australia. Whilst the Tribunal accepts that her son will have some disruption to his schooling if he returns to Malaysia, it does not accept the evidence of the applicant that he will be unable to return to schooling utilising his native Mandarin language or to re-enter the Malaysian education system where he had previously studied, given the credibility concerns previously outlined. As raised with the applicant during the review hearing, the purpose of the Subclass 457 visa is to enable an Australian business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. It is not the purpose of this visa to enable the applicant’s family to remain in Australia in order to access better educational facilities or other social infrastructure. Whilst the Tribunal accepts that upset might be caused to her, her son and other family members (including her husband) if they depart Australia, there is no persuasive evidence (including medical evidence) to suggest that such upset would have any detrimental long term consequences.

11. Following careful consideration of the evidence, the Tribunal does not accept that there is a compelling need for either the applicant or any members of her family to remain in Australia. Accordingly, this consideration weighs slightly in favour of cancelling her visa. Whilst the Tribunal accepts that visa cancellation might cause some hardship to the applicant and her family, this circumstance must be balanced against the fact that the applicant came to Australia on a temporary visa which created no expectation of remaining in Australia permanently. On balance, the hardship to the applicant (and family) by having her visa cancelled weighs slightly against such cancellation. For completeness, the Tribunal does not accept the veracity of the claims raised by the applicant in respect of alleged harm suffered by her son in Malaysia, or that her mother in law pressured her in respect to termination of prior pregnancies, given the significant delay in raising these claims combined with the credibility matters previously outlined.

12. The Tribunal notes that the visas of the applicant’s immediate family members will be consequentially cancelled pursuant to s.140 of the Act if her visa is cancelled. However, the visas of the secondary visa holders were granted on the basis of them being members of the family unit of the applicant and it is the intended consequence of the legislation that members of the same family have the same visa status. The Tribunal notes the evidence of the applicant is that the family unit will return to Malaysia together if her visa is cancelled and thus they will not be separated from each other. Following careful consideration, the Tribunal finds that the consequential cancellation of the visas held by the secondary visa holders weighs neither in favour of nor against the cancellation of the applicant’s visa in the aforementioned circumstances.

13. Regarding the applicant’s past and present conduct towards the Department, there is no evidence before the Tribunal to suggest that she has not been cooperative in her dealings with them. The Tribunal finds that this circumstance weighs moderately against cancelling her visa. With respect to the mandatory legal consequences of visa cancellation, the Tribunal notes that if the applicant (and her family) does not hold a valid visa she would be an unlawful non-citizen and subject to immigration detention, it would be difficult for her to make visa applications in Australia and she would be liable to removal from Australia. However, the Tribunal also notes that it is unlikely the applicant (and her family) will be affected by the three year exclusion period in PIC 4013 and 4014 if she applies for a temporary visa offshore as previously outlined. On balance, the Tribunal finds that the mandatory legal consequences of cancellation weigh neither in favour of nor against cancellation of the applicant’s visa given they are the intended consequences of legislation.

14. In relation to the consideration of Australia’s international obligations, there is no persuasive evidence before the Tribunal that any such obligations would be breached as a result of the applicant’s visa being cancelled. As previously described, the Tribunal does not accept there will be any significantly adverse consequences for the applicant and her family, including her children, if they depart Australia. The Tribunal has carefully considered Australia’s international obligations arising from the Convention on the Rights of the Child (CROC) with respect to the present case. Given that the applicant, her husband and two children will return to Malaysia together as a family unit if her visa is cancelled, in conjunction with matters previously expressed concerning the eldest child, the Tribunal is satisfied that there will be no breach of CROC obligations if the applicant departs Australia. This circumstance weighs slightly in favour of cancelling the applicant’s visa. For completeness, the Tribunal notes that it does not accept that the applicant or any member of her immediate family has suffered, or would face, any harm whatsoever from the applicant’s brother, or her mother in law, or any other family member given the credibility concerns previously outlined with such claims. It follows that the Tribunal does not accept that there would be any breach of Australia’s non-refoulement obligations if the applicant’s visa is cancelled, and this weighs neither in favour of nor against the cancellation of her visa. The Tribunal has carefully considered all relevant circumstances pertaining to the applicant’s case and does not consider there is any other circumstance weighing against cancellation of her visa.   

    CONCLUSION

15. The Tribunal has carefully reflected upon the factors both against, and in favour of, cancelling the applicant’s Subclass 457 visa. As outlined above, the Tribunal notes that some factors weigh against cancellation of the visa. These factors must be carefully balanced with those in favour of the visa cancellation. On balance, following much consideration, the Tribunal finds that the factors in favour of cancelling the applicant’s visa outweigh those factors to the contrary.

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

    DECISION

17. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

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

    K. Chapman
    Member