Kapadia (Migration)

[2020] AATA 4607

Kapadia (Migration) [2020] AATA 4607 (24 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Drashta Mukulanand Kapadia
Mr Mukulanand Sureshkumar Kapadia
Miss Nancy Mukulanand Kapadia

CASE NUMBER:  1930656

HOME AFFAIRS REFERENCE(S):          BCC2018/4039470

MEMBER:John Cipolla

DATE:24 August 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 187 -  Regional Sponsored Migration Scheme visa.

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

Statement made on 24 August 2020 at 5:57pm

CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – ground for cancellation – non-commencement of employment within the prescribed period – business sold by nominating business not long after visa approval – business ceased to exist – consideration of discretion – circumstances beyond the applicant’s control – failed to notify the Department of change in circumstances – immigration history – length of time in Australia – highly valued by respective employers – established significant ties to Australia – financial hardship – consequential cancellation of daughter’s visa – best interest of child – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 137Q

Migration Regulations 1994 (Cth), r 2.50AA

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 October 2019 to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.137Q of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.137Q on the basis that the delegate was not satisfied that the applicant commenced employment within the 6 month period or had made a genuine effort to commence employment with the sponsor in the regional area. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant was represented in relation to the review by her registered migration agent.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant's visa should be set aside.

   RELEVANT LAW

5. The Regional Sponsored Migration Scheme is for employers in regional Australia to employ skilled people in positions unable to be filled from the local labour market. It is a requirement that the employer commits to employing the person for at least two years.

6. Under the Act, the Minister may cancel regional sponsored employment visas if the Minister is satisfied that the employment either does not commence or terminates within two years: s.137Q.

7. In the circumstances of this case, the relevant ground is 'Employment does not commence': s.137Q(1), which provides as follows:

   s. 137Q Cancellation of regional sponsored employment visas

   Employment does not commence

   (1) The Minister may cancel a regional sponsored employment visa held by a person if:

   (a) the Minister is satisfied that the person has not commenced the employment referred to in the relevant employer nomination within the period prescribed by the regulations; and

   (b) the person does not satisfy the Minister that he or she has made a genuine effort to commence that employment within that period.

8. A regional sponsored employment visa is defined for the purposes of s.137Q to be a visa included in a class of visas that has the words “Employer Nomination” in its title; and is prescribed by the regulations for the purposes of this definition: s.137Q(3).

9. The visa and period prescribed by the regulations for the purposes of s.137Q are set out in r.2.50AA(1). In this case, item 3 relevantly provides:

   Cancellation of regional sponsored employment visas

   For section 137Q of the Act, each item in the table sets out:

   (a) a kind of visa that is a regional sponsored employment visa; and (b) the period within which a holder of a visa of that kind must commence the employment referred to in the employer nomination.

   …

   2

   Subclass 187 (Regional Sponsored Migration Scheme) visa

   If the holder was in Australia on the date of grant of the visa, 6 months from the date of grant of the visa

   If the holder was not in Australia on the date of grant of the visa, 6 months from the date the holder first entered Australia as the holder of the visa

10. If satisfied that 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, which may include matters of government policy, as set out in the Departmental guidelines, Procedures Advice Manual (PAM3). The guidelines on s.137Q require the decision maker to consider all available evidence as well as any responses from the visa holder in order to determine whether there are grounds for cancellation and the reasons for not cancelling outweigh the reasons for cancelling.

11. The factors to be taken into account include:

    the circumstances leading to the grounds for cancellation

    the visa holder's current and past behaviour in relation to the department, such as the truthfulness of statements made to officers or in applications under consideration by the department

    the links the visa holder may have made to the community. This can include the strength of family, social, business and other ties in Australia.

    Strong ties to regional Australia and continued employment in that area may also be given special consideration

    the length of any period of employment with the sponsor, including any previous employment with the sponsor whilst the visa holder was on a temporary visa

    the degree of hardship that may be caused to the visa holder and any members of their family unit. Note that Article 3 of the Convention on the Rights of the Child requires that the best interests of any relevant child (which is anyone less than 18 years old, in Australia) be treated as a primary consideration, regardless of the child's immigration status. If there are members of the family unit who would qualify as a relevant child and whose interests could seriously be affected by cancellation, or who themselves would be affected by consequential cancellation, delegates have an obligation to treat as a primary consideration the effect of cancellation on any such children.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. Commencement within prescribed period and genuine effort to commence employment within the prescribed period: s.137Q(1)

13. The applicant was nominated for her Subclass 187 visa by Admirari Twenty Five Pty Ltd ATF Hurleys’ Investment Trust (herinafter referred to as Hurley’s). This is the relevant employer nomination for the purposes of s.137Q(1)(a).

14. The applicant's Subclass 187 visa was granted on 22 January 2016, which means the end of the 6 month period from visa grant was 22 July 2016.

15. The evidence before the Tribunal indicates that the applicant obtained a job as a Cook at Hurley’s in October 2012. The evidence indicates the applicant was granted a Temporary Work (skilled) (Subclass 457) visa as a Cook by Hurley’s located in Kyabram in rural Victoria on 25 March 2013.

16. The evidence before the Tribunal indicates that on 28 March 2015, the applicant entered into a new employment contract with Hurley’s that was to come into effect on the grant of her permanent Regional Employer Nomination visa. The evidence indicates that this contract of employment was used to lodge a Regional Nomination which was subsequently approved by the Department on 22 July 2015.

17. After the approval of the nomination, the visa holder lodged the Regional Employer Nomination visa which was granted to her on 22 January 2016.

18. The evidence before the Tribunal provided by the applicant indicates that the applicant ceased working for Hurley’s in April 2015. The applicant claims that the owner of Hurley’s, Josie De Pasquale, suddenly advised the applicant that she had cancer and had sold the business to Brenton Sheppard. The applicant claims that she was not paid for 15 days of work and that Josie was disorganised at the time she sold the business.

19. The applicant claims that she spoke with the head chef, Manish, about the prospect of her position being retained by the new owner of Hurley’s but was advised by him that he was unaware of what was happening with old staff.  The applicant claims that her husband and daughter were residing in St Kilda and that she spent time with them after she lost her position.  The applicant claims that she travelled back to the Shepparton area and that she resided between July 2015 and March 2016 with a friend in Shepparton and made an earnest effort to find work as a Cook in this regional area of Victoria to no avail.

20. The applicant explained that she was concerned about her visa status, but was informed by her then migration agent, that there would be no problems as the Subclass 187 visa was predicated on the completion of 2 years work, which she had completed as a 457 visa holder.

21. The applicant advised the Department of a change of address in September 2015 to St Kilda. The Department made adverse credibility findings against the applicant on the basis of this change of address.  The applicant claims at review that her husband and daughter were residing in St Kilda and that between July 2015 and March 2016 she lived between two residences and spent most of that period in rural Victoria looking for work as a Cook.

22. The Tribunal discussed with the applicant at the review hearing that her Subclass 187 visa was cancelled due to the fact that the Department had initiated integrity checks which are referred to in the Departmental decision record and confirm that the business had been sold by the nominating business. Indeed recourse to the decision record indicates that the Department “conducted integrity checks with the owners of ADMIRARI TWENTY FIVE PTY LTD ATF HURLEY'S INVESTMENT TRUST, who advised that the business was sold not long after the visa holder’s Regional Skilled Nomination (Temporary Residence Transition) was approved on 22 July 2015. The sale of the business has been confirmed by information available to the Department on the Australian Business Register (ABR). The ABR confirms that the Australian Business Number (ABN) 87766959381, the ABN associated with ADMIRARI TWENTY FIVE PTY LTD ATF HURLEY'S INVESTMENT TRUST, had its registration for GST cancelled on 1 August 2015.”

23. The legislative requirements for cancellation of a regional sponsored employer visa require the Minister to be satisfied that the person has not commenced the employment referred to in the relevant employer nomination within the period prescribed by the regulations; and the person does not satisfy the Minister that he or she has made a genuine effort to commence that employment within that requisite period.

24. The evidence before the Tribunal clearly indicates that the applicant did not commence employment with Hurley’s, the relevant employer listed in the employer nomination, within the period prescribed by the regulations, which as noted in this case is the period from 22 January 2016 through to 22 July 2016.

25. The evidence before the Tribunal indicates that the applicant was advised some 9 months prior to the grant of her Subclass 187 visa that the business had been sold, as the proprietor of the business, Josie De Pasquale, had been diagnosed with cancer and could no longer run the business.  The evidence indicates that at the time of the grant of the visa there was no position for the applicant to go to and that the business which is the subject of the nomination approval ceased to exist.  This is quantified by the search of the Australian Business Register which confirms that the ABN associated with this business had its registration cancelled on 1 August 2015.

26. The Tribunal discussed with the applicant at the review hearing her immigration history which indicated that she had been in Australia continuously since 2008 and had held multiple student visas and a Subclass 457 visa.  The applicant understood the conditions that were applicable to the visas that she had held in the past, and the applicant had always engaged with migration agents to assist her renewing her student visas, or indeed in applying for her 457 visa.

27. The Tribunal finds that the applicant was cognisant of the fact that the grant of her 187 visa required her to work for Hurley’s as a Cook for at least 2 years from visa grant (despite her claim that a previous migration agent advised her this was retrospective) and the sale of the nominating business in April 2015 made this impossible to satisfy. These circumstances led to a profound change in the applicant’s circumstances.

28. Arguments have been made that the sale of the business was beyond the applicant’s control, and the Tribunal aggress with this proposition.  However, on being advised of the sale of the Hurley’s in April 2015 the applicant did not approach the Department to advise of a change of circumstances. The applicant claims to have attempted to find work in regional Victoria, to no avail, and to have spent time residing in Shepparton on and off from July 2015 and March 2016, in an attempt to facilitate this.  However the Tribunal finds that this is not indicative of a genuine effort to commence employment within the requisite period, as the potential for her to do so ended with notification of the sale of the business in April 2015, which is quantified by the cancellation of the businesses ABN in August 2015.  The evidence before the Tribunal indicates that the applicant’s ongoing attempts to find work in regional Victoria yielded no employment opportunities and by September 2015 the applicant relocated to join her family in St Kilda and notified the Department of this change of address.  The Tribunal finds it curious that the applicant was willing and able to notify the Department about her change of address in September 2015, but not about the change in her circumstances in April 2015 concerning  the sale of the business that had nominated her for the Subclass 187 visa.  As noted in these circumstances, the business that nominated her for the Subclass 187 visa had ceased to exist.

29. There is no evidence that has been provided by the new owner of the Hurley’s business, Mr Brenton Sheppard, which is a new business with its own unique ABN, that indicates that the applicant approached him directly about the retention of her employment with Hurley’s after its sale, to ascertain whether he would be willing to lodge a new nomination application on her behalf and there is no evidence that a new nomination was lodged.

30. The Tribunal discussed with the applicant at hearing the fact that it was as a result of integrity checks in August 2017, some 20 months after the grant of her 187 visa, that the applicant’s failure to commence work with the nominating business within the requisite period, came to the Department’s attention.  The Tribunal also noted the delegate’s decision record, referring to the fact that the applicant was contacted by phone in August 2017 by a Departmental officer, and when advised of the reason for the call the applicant hung up.  The applicant claimed at hearing that the reason for her hanging up was she thought it was a prank caller.  The Tribunal does not accept this, as the Departmental caller knew details of the applicant’s visa and the fact that her nominating employer ceased to exist, information that would have only been known to the Department and indeed the applicant.  The Tribunal finds that the reason the applicant terminated the call was due to the fact that she knew that the basis in which her Subclass 187 visa had been granted no longer existed, and that this information was now before the Department which left her in a precarious position.

31. The Tribunal accordingly finds that the applicant did not commence the employment referred to in the relevant employer nomination within the period prescribed by the regulations, and that the applicant did not make a genuine effort to commence that employment within that period. Indeed the applicant could not make a genuine attempt to commence employment at the time of the grant of her visa on 22 January 2016 or the intervening 6 month period to 22 July 2016 because the business ceased to exist and the applicant was aware of this fact from April 2015, 9 months before the visa grant.

32. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.137Q exists. As the power to cancel under s.137Q is discretionary, the Tribunal must proceed to consider whether the visa should be cancelled.

    Should the visa be cancelled?

33. There are no matters specified in the Act or Regulations that must be considered in relation to 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: Act - Visa cancellation instructions - Regional sponsored employment visas’.

34. The Tribunal has made reference to the consideration of any relevant factors to determine whether the applicant’s visa should be cancelled, including the Departmental guidelines, and matters raised by the applicant. As has been noted the Departmental guidelines cover such matters as:

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

    ·the extent of compliance with visa conditions

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

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

    ·past and present behaviour of the visa holder towards the department

    ·whether there are persons in Australia whose visas may be cancelled under s.137T

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

    ·whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

    ·any other relevant matters.

35. The evidence before the Tribunal indicates that the applicant arrived in Australia in 2008 as the holder of a Student visa. The applicant then applied for, and was granted, additional student visas which she held until 2012. The applicant’s representative has provided a copy of the certificates and diplomas that the applicant had obtained whilst a student in Australia. These demonstrate that the applicant made satisfactory academic progress in all of her courses of study which were in the fields of hospitality, commercial cookery, and business management. Upon completing her studies, the applicant managed to find employment as a cook in regional Australia and the applicant applied for a 457 visa with the assistance of a migration agent to work at Hurley’s. Whilst the applicant was awaiting the processing of her 457 visa, she held a Bridging visa A. The applicant was granted her 457 visa in 2013.  The evidence before the Tribunal indicates that the applicant continued to work for Hurley’s as the holder of a Subclass 457 visa until April 2015 at which time she was advised by the proprietor of that business, Josie De Pasquale that the business had been sold. 

36. As has been noted, the applicant applied for a Subclass 187 based on a nomination application lodged by Hurley’s and approved on 22 July 2015. The applicant was granted a Subclass 187 visa on 22 January 2016, on the basis of this nomination.  The applicant would have held an expectation that the grant of her 187 visa in January 2016 would provide her with permanent residence. However the sale of the nominating business in April 2015 and the cessation of the businesses ABN in August 2015, meant that the business with whom she was expected to work for at least 2 years from visa grant, ceased to exist, and the applicant was not able to secure a new nominating business to sponsor her for a 187 visa. The Tribunal considers that the applicant’s immigration history in Australia would have led the applicant to believe that she would be able to remain in Australia as a permanent resident. As will be addressed further, the applicant has now resided in Australia for 12 years, her daughter has undertaken almost all of her primary education in Australia, her husband has worked in Australia for an extended period for the one employer and is a valued and hardworking employee of that Australian business.  In addition to this the applicant has formed a range of significant ties to the Australian community.

1. The evidence before the Tribunal indicates that whilst the applicant held a number of student visas and when she held a Subclass 457 visa that the applicant complied with visa conditions.

2. The applicant has spent a considerable amount of money in Australia undertaking study as an overseas student and completing studies in commercial cookery, hospitality and business management. The applicant applied for and was granted a Subclass 457 visa and was then invited to apply for a Subclass 187 visa by her 457 employer Hurley’s when it was owned and managed by Josie De Pasquale. As a consequence of this, the applicant had an expectation of being granted permanent residence in Australia and to this end the applicant and her husband purchased residential land in Melbourne to which they have committed a significant amount of money.  Their objective was to build a residential home for themselves and their primary school aged daughter.  The evidence before the Tribunal indicates that the applicant and her husband will suffer financial hardship if the applicant’s visa is cancelled due to the fact that they have purchased land to build a family home and will lose monies as a consequence.  This will be compounded by the fact that the applicant has spent 12 years in Australia and has now developed a skill set and work experience in Australia and the Tribunal accepts that she will experience further financial hardship re-establishing herself in India and finding employment in that country, and this will no doubt be exacerbated by the fact that India, like the rest of the world is in the grip of a global health pandemic.

3. The Tribunal accepts the evidence that has been provided to it that indicates that the applicant through her employment and voluntary work has established close links with the residents of the aged care facility in which she works. She has also established close links with Aaron Edelman, a disabled boy with whom she provides support services and to his mother Adina Edelman to whom she provides respite. In addition to this the applicant has developed a close relationship with Sandra Mitchell, an elderly Australian friend. with whom the applicant provides friendship and support. The evidence indicates that the applicant will be emotionally affected by the cessation of those close working and personal relationships if her visa is cancelled. 

4. The Tribunal also notes the fact that the applicant has a daughter, Nancy who is in year 5 at primary school, and has undertaken all of her primary school studies in Australia. Nancy is doing well academically and has established close friendships within her peer group and the Tribunal accepts that the cancellation of her mother's visa and the consequential cancellation of her visa will lead to adverse emotional and psychological effects.

5. The Tribunal also notes that the applicant’s husband has been a longstanding employee of Autosales in Melbourne where he is employed as a yard manager.  The applicant’s husband is a highly valued employee of this business and the evidence before the Tribunal indicates that the cancellation of his wife’s visa and the consequential cancellation of his visa will lead to adverse financial consequences as well as emotional consequences as a result of the loss of long term and stable employment.

6. This decision record makes extensive reference to the circumstances in which the grounds for cancellation of the applicant’s visa arose.  The evidence indicates that Hurley’s lodged a nomination application with the Department seeking to sponsor the applicant for a Subclass 187 visa.  This nomination was approved by the Department on 22 July 2015. The grant of this visa requires the visa applicant work in regional Australia for the nominating business for at least 2 years after the grant of the visa.  The subclass also requires an applicant to transition from a 457 visa and to have worked as the holder of this visa for the nominating visa for a specified period of time.  The evidence indicates that the applicant did work for Hurley’s as a holder of a Subclass 457 visa for the specified period of time and that Hurley’s agreed to nominate the applicant to continue to work in the business as a Cook as the holder of a Subclass 187 visa.  The evidence indicates, as noted, that the nomination was approved on 22 July 2015 and that the applicant’s Subclass 187 visa was approved by the Department on 22 January 2016.  The evidence indicates, however, that the applicant was advised by the proprietor of the business that sponsored her, Jose De Pasquale, in April 2015, that she had cancer, and as a consequence of this, she had sold the business. The evidence before the Tribunal indicates that the ABN for this business had its registration for GST cancelled on 1 August 2015.  The sale of the business meant that the applicant could not fulfill her obligation to work for the nominating business for at least 2 years as the business ceased to exist.  The Tribunal notes that the sale of the business due to the cancer diagnosis of its previous owner was a circumstance beyond the applicant’s control and as has been noted this led to a profound change in the applicant’s circumstances, something that she was required to bring to the attention of the Department, and had failed to do.

7. The Tribunal has had regard to the applicant’s past and present behaviour towards the Department.  The Tribunal notes that the applicant, whilst holding multiple student visas and a Subclass 457 visa, complied with the conditions attached to those visas.  The evidence further indicates that in September 2015, the applicant notified the Department of a change of address.  However, the evidence also indicates that whilst the applicant was awaiting the processing of a Subclass 187 visa that she was advised by the proprietor of her sponsoring business in April 2015 the business had been sold.  Despite this revelation and despite the fact that the applicant could not satisfy the conditions relevant to the grant of this visa, she failed to notify the Department of her change of circumstances, something that she was duty bound to do as part of her visa application. Further to this, the evidence indicates that when the Department telephoned the applicant to discuss the result of its integrity finding, pertaining to the cessation of the nominating business, the applicant hung up.  The Tribunal does not accept the applicant’s evidence at review that this occurred because she thought it was a prank call for the reasons articulated above. The Tribunal finds that the applicant’s behaviour towards the Department after the revelation of the outcome of integrity checks was not co-operative. The Tribunal does accept however that her behaviour at the time may have been driven by fear and uncertainty.

8. The applicant’s husband and daughter are dependents on her Subclass 187 visa and the Tribunal notes that the cancellation of the applicant’s visa will lead to the consequential cancellation of the applicant’s visa under s.137T of the Migration Act.

9. The Tribunal notes that if the applicant’s Subclass 187 visa is cancelled the applicant would become an unlawful non-citizen and that she would be liable for detention under section 189 and removal under section 198 of the Migration Act 1958 (‘the Act’) if she does not voluntarily depart Australia.

10. In addition to this the applicant would be subject to section 48 of the Act which means that she will have limited options to apply for further visas whilst in Australia. The visa holder would also be subject to Public Interest Criterion 4013 which stipulates that a person whose visa is cancelled will be subject to a 3 year exclusion period before she is eligible for the grant of certain further visas.

11. The Tribunal notes that the applicant would not be precluded from making an application for a Bridging E visa which would enable her to reside in the community until such time that she is able to affect departure from Australia.

12. The Tribunal has turned its mind to whether Australia would be in breach of any international obligations if the applicants visa would be cancelled.  The Tribunal notes that Australia is a signatory to the Convention on the Rights of the Child (CROC) and as a consequence Australia has an obligation to ensure that in all actions that have an impact on children that the best interests of the child are a primary consideration to which significant weight should be apportioned.

13. As has been discussed the applicant has a daughter, who has resided in Australia throughout her formative years, and has been educated in the Australian school system.  She is currently in year 5 of primary school.  The applicant’s daughter Nancy is doing well scholastically and has a network of friends.  In addition to this Nancy suffers from allergic asthma which has always become exacerbated on any return trip to Inida to visit with relatives. The Tribunal accepts that the applicant and her family had an expectation that Australia would be their permanent home and this expectation was held by the applicant’s daughter.  The Tribunal finds that the consequential cancellation of the Nancy’s visa will have a profound impact upon her.  The Tribunal took direct evidence from Nancy during the course of the review hearing.  The evidence indicated that Nancy considers Australia to be her home and that she is very happy in the Australian education system and has formed close friendships at school.  Nancy gave evidence that she is able to speak some Hindi but is not able to read and write Hindi and that if she had to leave Australia and undertake schooling in India she would be substantially disadvantaged.  The Tribunal gives this consideration considerable weight in not cancelling the applicant’s visa.

14. Having regard to other relevant matters the Tribunal notes the following. The Tribunal took evidence at the review hearing from Mary Varnas the Facility Manager for Arcare in Melbourne where the the applicant has been a Cook for the aged care facility since 2017. The witness advised the Tribunal that it would be extremely difficult to replace the applicant, particularly in the environment of COVID 19.  The witness described the applicant as being a great employee, extremely efficient and very experienced and that she had developed a very strong relationship with the aged care residents and that it would be detrimental to the business and to the residents of the aged care facility if the applicants visa was cancelled. The witness described the applicant as a valued employee of the business. 

15. The Tribunal took evidence from Lisa Davis a resident of the Arcare facility at the review hearing.  The Tribunal was advised by the witness that she had been a resident of the facility since 24 July 2017. The witness advised that she was the first resident. She advised that she had known the applicant since that time. She advised that the applicant was an exemplary person of good character and was extremely attentive to the resident’s needs. She advised that the applicant took pride in her cooking and she cared about what the residents liked in her cooking and most of the time she had succeeded in pleasing the residents. The witness advised that the applicant was very caring of all the residents in the facility. The witness stated that in the not-too-distant future, that she is hoping, through her support coordinator, that she may be able to access a support person to assist her through the National Disability Insurance Scheme and is hopeful that the applicant may become her support person.  The witness advised that she trusted the applicant and supported her remaining in Australia.

16. The Tribunal took evidence from Mr Cameron Doidge the manager of Autosales and the employer of the applicant’s husband.  The witness advised that the applicant’s husband was a very good employee. He described the applicant’s husband as a good worker in terms of doing the job to his best ability. He advised the applicant’s husband had been employed by the business for six years as a yard manager and that the loss of him to the business would be significantly detrimental to business. The witness advised that it was difficult to find workers with the applicant’s husband’s work ethic and that he would be extremely difficult to replace.

17. The Tribunal took evidence from Adina Edelman. The witness advised the Tribunal that the applicant was a support worker who attended her home each evening between 6pm and 8pm to provide care and support to her son. She advised that her son suffers with autism and attention deficit disorder that he is very challenged in forming relationships and exhibits very challenging behaviours. The witness advised that the applicant assists her son with his organisational skills and independence skills. The witness advised that the applicant had formed a very close and stable relationship with her son since commencing in the position in June 2019.  The witness advised that her son responded well to the applicant, which had been a real breakthrough as prior to the applicant’s engagement previous workers had not been compatible. The witness advised the Tribunal that the applicant provided her with much needed respite and that the applicant had been a godsend in terms of the support that she provides to her son and consequently to the family. 

18. The Tribunal took evidence from Sandra Mitchell a friend of the applicant who described herself as being much older than the applicant. The witness advised she met the applicant in 2017, as she is an adherent of the Hindu religion, and Hindu tradition, as is the applicant. The witness advised that the applicant calls in to see her regularly and that she is caring and honest and would make an invaluable contribution to Australia.

19. The evidence also indicates that the applicant undertakes voluntary work though her local Hindu association and is actively involved.

20. The applicant’s husband gave evidence at the hearing.  He advised that the cancellation of his wife’s visa would have a substantial and adverse impact upon the family unit.  He advised that both he and his wife had permanent and stable employment and were valued employees.  He advised that his daughter, Nancy was in year 5 at primary school and that the cancellation of his wife’s visa would have a profound and adverse impact on their daughter.  He advised that his daughter did not speak or write Hindi and that her ability to adapt to and re-enter the Indian education system would be substantially compromised.

21. The Tribunal has considered all of the relevant considerations both singularly and cumulatively to determine, having regard to those considerations, whether or not the applicants visa should be cancelled. 

22. The Tribunal places considerable weight on the fact that Australia is a signatory to CROC and that a primary consideration as to whether or not a visa should be cancelled is the impact upon a child and indeed the best interests of the child.  Having regard to those considerations it is apparent that the applicant’s daughter Nancy, has, as noted, undertaken all of her primary schooling in Australia, and has formed close friendships, is doing well scholastically and considers Australia to be her home.  The applicant’s daughter also suffers with allergic asthma, which is under medical control in Australia, but which flares up when she is in India due to the prevailing conditions and high levels of pollution in that country.

23. In addition to this, the evidence indicates that during the 12 years the applicant and her family have resided in Australia they have established significant ties to Australia. This is evidenced by the fact that the applicant and her husband have permanent positions of employment and are highly valued by their respective employers.  In addition to this the applicant undertakes additional paid and unpaid work as has been noted, is working with a young disabled Australian, Aaron Edelman, as a support worker and has established a close working relationship with Aaron and his parents and is highly valued by this Australian family.  Conversely, as has been noted the applicant has established a close relationship with Lisa Davis a resident at Arcare and Sandra Mitchell an older Australian to whom the applicant provides friendship and support. The applicant as a Cook in a Victorian aged care facility is well liked by residents, and her food and the emphasis she places on quality is very well received by the facility’s residents.

24. The applicant and her husband have purchased residential land in Victoria and had planned to build the family home on this land and will suffer financially if the visa is cancelled.

25. The applicant had hoped to remain in Australia permanently as a Subclass 187 visa holder, but due to circumstances that were beyond the applicants control, the business that had nominated her to work for them as a Cook was sold, due to the ill health of its proprietor. After being advised of this in April 2015, the applicant was unable to obtain a new work opportunity as a Cook in regional Victoria.

26. The Tribunal has been critical of the fact that the applicant failed to notify the Department of a significant change in her circumstances, namely the fact that after she was notified by the proprietor of Hurley’s, that the business had been sold, due to ill health, she failed to notify the Department and this fact only came to light, 20 months after the grant of the visa when the Department undertook integrity checks. The Tribunal accepts to some extent that the applicant was motivated by fear and possibly, as she claims by the erroneous advice of a previous migration agent but the Tribunal is of the view given the length of time the applicant had spent in Australia and the multiple visas she had held she would have been aware of her obligations to the Department.

27. Considering the circumstances as a whole, the Tribunal concludes, that the visa should not be cancelled.

    DECISION

28. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 187 -  Regional Sponsored Migration Scheme visa.

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

    John Cipolla

    
    

    Senior Member