Kaur (Migration)

[2019] AATA 4187

Kaur (Migration) [2019] AATA 4187 (29 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Manpreet Kaur
Mr Gurpreet Singh
Mr Prabhroop Singh

CASE NUMBER:  1902584

HOME AFFAIRS REFERENCE(S):           BCC2018/4403686

MEMBER:Antonio Dronjic

DATE:29 August 2019

PLACE OF DECISION:  Melbourne

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

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

Statement made on 29 August 2019 at 5:05pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – consideration of discretion – unable to secure new nomination – purpose of visa not fulfilled – potential hardship – applicant’s son’s eligibility for citizenship – decision under review affirmed

LEGISLATION
Australian Citizenship Act 2007 (Cth), s 12
Migration Act 1958 (Cth), ss 48, 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 4, PIC 4013, 4014; Schedule 8, Condition 8107

CASES
COT15 v MIBP (No 1) (2015) 236 FCR 148
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 1 February 2019 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the first named applicant (the applicant) breached condition 8107(3)(b) as the period during which the applicant ceased employment exceeded 90 consecutive days. 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 the Tribunal is the decision with respect to the first named applicant. The other applicants’ visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.

   Background to the cancellation of the applicant’s visa

4. The decision record of 1 February 2019 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The Tribunal summarises those reasons and findings as follows:

   ·On 1 February 2016, the applicant was granted a Subclass 457 Business (Long Stay) visa to remain valid until 1 February 2020;

   ·The standard business sponsor who nominated the applicant to work as a hairdresser was CH Luxe Pty Ltd AYF the CH Luxe Trust (the sponsor);

   ·On 18 April 2018, Mr Sewak Dev Singh Gill on behalf of the sponsoring business, informed the Department that the sponsoring business ceased trading on 18 April 2018 and that the applicant ceased her employment on that day;

   ·A notice of intention to consider cancellation (NOICC) was issued to the applicant on 24 December 2018;

   ·The applicant did not respond to the NOICC;

   ·On 1 February 2019, the delegate proceeded to cancel the applicant’s visa.

5. The applicant applied to the Tribunal on 5 February 2019 for review of the visa cancellation and with her application submitted a copy of the primary decision record.

6. On 12 June 2019, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 20 August 2019.

7. On 2 July 2019, the applicant’s representative wrote to the Tribunal advising that the applicant’s son Prabhroop Singh was born in Australia and will be 10 years of age on 8 December 2019 and will assume the status of an Australian citizen on that date. The representative submitted that this fact will be relevant to future Subclass 143 parent visa matters. The Tribunal was further informed that the applicant is pregnant and expecting to give birth to her second child on 7 November 2019.

8. On 16 August 2019, the applicant’s representative submitted:

   ·Submissions outlining the applicant’s education and visa history in Australia and reiterating that the applicant’s son will soon become an Australian citizen pursuant to s.12(1)(b) of the Australian Citizenship Act 2007. The representative outlined possible scenarios if the Tribunal affirms the primary decision and if the Tribunal re-instates the applicant’s visa. He submitted that termination of the applicant’s employment was not caused by her.

   He further submitted that the delegate failed to consider the issue of an Australian citizenship; that returning a person who will soon become an Australian citizen to a country to which he does not want to return, or to send his parents there without just cause will breach Australia’s obligations as a signatory to the United Nations Convention on the Rights of the Child (CRC). He stated that ‘cancellation outcome of s.48 is a very significant one and ought to have been afforded greater weight’.

   ·Copies of medical certificates confirming the applicant’s pregnancy;

   ·A copy of the birth certificate of the applicant’s son;

   ·Copies of the several school reports related to the applicant’s son; and

   ·A copy of the NOICC dated 24 December 2018.

9. The applicant appeared before the Tribunal on 20 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

10. The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the Tribunal hearing. The Tribunal informed the applicant that her visa was cancelled under s.116(1)(b) of the Act as the delegate concluded that she had not complied with the conditions of her visa. Specifically, the 8107 condition to which her visa was subject, prescribes in 8107(3)(b) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. The Tribunal explained that the applicant’s husband’s and son’s visas were automatically cancelled by operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of her visa.

11. The Tribunal further explained to the applicant that, 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.

12. The applicant is 35 years of age and a married national of India. Her husband and son, who is nine years of age, are currently in Australia. In India, the applicant has completed the equivalent of year 12 and worked as an educational counsellor for the period of three years before arriving to Australia. She married in 2005 and resided at her husband’s parent’s residence in India. Neither she nor her husband has relatives in Australia. The applicant’s brother and sister live in India. Her parents have passed away.

13. The highest level of education completed in India by her husband was the equivalent of year 12. He was employed at his father’s business selling building materials. After his father passed away, his brother took over this business which he still operates. His sister lives in America.

14. The applicant stated that at her home, she communicates with her husband in the Punjabi language. Her son understands Punjabi but ‘cannot speak properly’.

15. The applicant and her husband first arrived in Australia in January 2008 holding a Student visa. By January 2013, the applicant had completed several courses related to hairdressing and management. Her husband was employed as a courier, factory worker, taxi driver and currently works as an Uber driver. He has maintained employment since arriving in Australia.

16. The applicant was first granted a Subclass 457 visa on 25 July 2014, based on the sponsorship and nomination made by the same hairdressing salon operated by CH Luxe Pty Ltd AYF the CH Luxe Trust. She commenced her full-time employment as a hairdresser at this salon in July 2014. She gave evidence that at that time, the salon had two employees; Emma was employed on a part-time basis and she was a full-time employee.

17. As a business owner, Mr Sewak Dev Singh Gill was involved in ordering product necessary for the operation of the salon. The applicant claims that, apart from working as a hairdresser, she managed the day-to-day operations of the hairdressing salon. Her annual salary was $54,000 and was paid directly to her nominated bank account on a weekly basis. She stated that another full-time hairdresser, Ms Amandeep Kaur, was employed by the sponsoring business in July 2015.

18. She stated that all customers’ appointments were recorded on the computer using the appointments spreadsheet. In addition, she claims that she kept her own customers’ appointment records in case that computer was not working.

19. Her second Subclass 457 visa was granted on 1 February 2016. The applicant confirmed that she received a copy of the visa grant letter from the Department which contained an explanation of the conditions imposed on her visa. She stated that she was aware that she would be breaching the 8107 condition if the period during which she ceased employment exceeded 90 consecutive days.

20. The applicant gave evidence that she ceased working at the hairdressing salon on 18 April 2018 as the business owner directed her to do so. Mr Sewak Dev Singh Gill told her that he informed the Department that she no longer works at his business. She claims that the business owner also told her that he is looking for the new location for his business and that she must wait.

21. The applicant stated that on 20 November 2018, she received a letter from the Department headed ‘Release of Information’. By this letter, she was informed that the Department conducted monitoring of the sponsoring business which resulted in sponsorship cancellation on 19 November 2018. She submitted a copy of this letter to the Tribunal. Soon after receiving this letter, the applicant claims that she contacted the business owner who told her that he sold the business.

22. The applicant gave evidence that she has not worked as a hairdresser since 18 April 2018. She claims that she applied for the position of a hairdresser at two hairdressing salons but was not successful. The Tribunal enquired as to whether the applicant is able to provide documentary evidence in support of this claim. The applicant stated that she walked into hairdressing salons asking for a job.

23. She stated that, as of the day of this hearing, she is not employed in her occupation by an Australian business that is an approved sponsor and that successfully nominated her to work at that business. She conceded that she breached the 8107 condition as the period during which she ceased employment exceeded 90 consecutive days.

    The Tribunal’s oral invitation to comment on or respond to information

24. In accordance with s.359AA of the Act, the Tribunal informed the applicant that there was information before the Tribunal obtained from the Department that would be the reason or part of a reason for affirming the decision that is under review. The information was:

    The Department conducted a site visit to the business premises of the sponsoring business, on 11 July 2017. During the site visit, the monitoring officers spoke to an Australian employee (Emma) who claimed that since December 2013 she has been the only hairdresser working for the sponsor. Emma showed the officers the appointments spreadsheet on the computer listing three columns; one for Emma; one for Sara the beautician and the third one for Preet – Pawan Kaur, the owner’s sister.

    Emma stated that the Manpreet Kaur had come into the salon for few days for work experience the last year or the year before it.

25. The Tribunal explained why this information is relevant to the current review and consequences if the Tribunal relies on this information. The Tribunal clarified with the applicant that she understood the information, its relevance to the Tribunal’s decision and consequences of the Tribunal relying on the information. The Tribunal then invited the applicant to comment on or respond to the information and informed her that she could request additional time to do so.

26. The applicant stated that she is not seeking additional time to provide her comments on or response to the information. She stated that she was on leave at the time the Department conducted the site visit as her father passed away on 2 July 2017. She had taken 10 days’ leave. Her father’s funeral was held in India but she did not travel there.

27. She stated that, when the business commenced its operations, the computer spreadsheet listing appointments was set up to include the owner’s sister, Ms Pawan Kaur who was the holder of a Subclass 457 visa and sponsored by a different business. She claims that she asked the business owner to change the column opened under Ms Kaur’s name as all appointments listed under Ms Kaur’s name were actually her appointments. The applicant explained that her nickname (Preet) was later added to Ms Kaur’s column.

28. Finally, the applicant stated that she cannot explain why Emma told monitoring officers that she never worked there, save to say that Emma never liked her.

29. I explained to the applicant that, based on the evidence before me, I am satisfied that she breached condition 8107 that was imposed on her Subclass 457 visa as the period during which the applicant ceased employment exceeded 90 consecutive days and that I will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

30. I indicated that I will take into consideration the evidence given at the hearing as well as documentary evidence and submissions provided in support of the application. I asked the applicant if there was anything else that she wanted to raise with the Tribunal.

31. She stated that there is nothing else that she wants to bring to the Tribunal’s attention in considering whether the discretion to cancel should be exercised.

    Post-hearing submissions

32. On 20 August 2019, the applicant’s representative wrote to the Tribunal submitting that the cancellation of the visa under sections including 109, 116, 128 and 133 of the Act and/or the consequence of holding a Bridging visa E on departure (or departing as unlawful) leads to the practical imposition of a three-year exclusion period on most temporary visa subclasses and is highly material in this situation. It was essentially submitted that the applicant will be affected by Public Interest Criterion (PIC) 4013 and PIC 4014.

33. 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

34. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

35. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. Condition 8107(3)(b) requires that if the holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. In this instance condition 8107 was attached to the applicant’s visa, which was granted on 1 February 2016 and which, but for its cancellation, was valid to 1 February 2020.

36. Based on the evidence before it, including the oral evidence from the applicant, the Tribunal finds that the applicant ceased employment with the sponsoring business on 18 April 2018. The Tribunal further finds that the period during which the visa holder ceased employment exceeded 90 consecutive days. Accordingly, the Tribunal finds that the applicant did not comply with condition 8107(3)(b).

37. For these reasons, the Tribunal finds that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

38. 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’.

39. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2]

    [1]    See Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

    [2]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209; Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492 at [55].

40. Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant.

    The purpose of the visa holder’s travel to and stay in Australia

41. The Subclass 457 visa is for skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work for CH Luxe Pty Ltd AYF the CH Luxe Trust as a hairdresser on a temporary basis. The applicant was unfortunate to lose her job in April 2018. She decided to remain in Australia and try to find a new employer. She claims that she applied for the position of a hairdresser at two hairdressing salons but was not successful.

42. Based on the evidence before me, I am satisfied that, as of the day of my decision, the applicant is not employed by an Australian company which is an approved standard business sponsor and which successfully nominated the applicant for a position within the business.

43. As explained at the hearing, 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. The Subclass 457 visa was a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation. The Tribunal finds that this purpose no longer exists as the applicant ceased working for her sponsor in April 2018. I give significant weight to this consideration.

    The reason for and extent of the breach

1. The ground for cancellation arose when the applicant ceased working with her sponsoring employer in April 2018. The applicant had an opportunity to rectify the breach by commencing employment with another sponsor within 90 days. This was contained in a condition of her visa which stated if the employment ceases it ‘must not exceed 90 consecutive days’. However, the applicant was unable to secure employment with an Australian business that is an approved business sponsor and which successfully nominated the applicant to work at the business.

2. I am satisfied that the applicant has had ample time to find a new sponsor. I find that the applicant’s failure to commence employment with a new business sponsor after more than 16 months since the original cessation of employment represents a significant breach of condition 8107.

   Circumstances in which ground of cancellation arose

3. The applicant ceased her employment at the sponsoring business in April 2018. The Department did not proceed with the visa cancellation until 1 February 2019. The Tribunal is satisfied on the evidence before it that the Department afforded the applicant sufficient time to secure employment in Australia with another business sponsor.

4. Whilst the Tribunal accepts that the circumstances in which the ground for cancellation arose are not the fault of the applicant, and are to that extent beyond her control, nevertheless it is in the context of a temporary visa for a specific purpose which has now ceased.

   Past and present conduct of the visa holder towards the Department

5. There is no evidence before the Tribunal that the applicant previously breached visa conditions or that she was not co-operative with the Department.

   Degree of hardship that may be caused; whether there would be consequential cancellations under s.140

6. The applicant claims that the visa cancellation would cause hardship to herself and her family. It was submitted that the applicant’s son will soon become an Australian citizen and as such should not be returned to a country in which he does not want to return. The Tribunal accepts that the applicant’s son was born in Australia on 8 December 2009 and is currently attending school.

7. The Tribunal observes that the provision of s.12 (1)(b) of the Australian Citizenship Act 2007 allows for the possibility for a person who is considered to be an ordinary resident in Australia throughout the period of 10 years beginning on the day the person was born to acquire an Australian citizenship. The applicant provided an extract from the Departmental policy stating that a child will automatically acquire citizenship regardless of the parents’ immigration status or child’s place of residence on his/her 10^th birthday.

8. The Tribunal accepts that if the applicant and her family are required to depart Australia before 8 December 2019, their departure may have a negative impact on the son’s eligibility to acquire an Australian citizenship. The applicant’s representative wrote in his submissions that if the visa remains cancelled the applicant will seek Ministerial intervention under s.351 of the Act. Similarly, the applicant claims that the visa cancellation will adversely impact the potential application for a parent visa. Whether a minor child is able to sponsor both of his parents, with or without community support, is not the question for this Tribunal to decide. The Tribunal finds this claim to be irrelevant to its discretion as to whether the power to cancel the visa should be exercised.

9. The applicant’s representative submitted that ‘cancellation outcome of s.48 is a very significant one and ought to have been afforded greater weight’. The Tribunal is mindful that s.48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s.116 of the Act, may apply for certain prescribed classes of visas but not others. Consequently, this limits what visa applications can be made by the applicant whilst onshore. This is the intended consequence of the legislation.

10. The Tribunal accepts that the applicant and her husband have been living and working in Australia since January 2008 and that they have established ties to the Australian community. The Tribunal accepts that the applicant and her family will suffer hardship if they are required to depart Australia.

11. The Tribunal accepts that the applicant’s son is attending school in Australia and has been living in this country since his birth. The Tribunal accepts that the applicant’s son may have some difficulties adjusting to a different education system in India. However, the Tribunal is not satisfied that the visa cancellation would cause significant hardship if the child’s studies in Australia were disrupted. I consider that the purpose of a Subclass 457 visa is not to enable family members to study in Australia.

12. I have taken into consideration the applicant’s evidence that in India, both she and her husband completed the equivalent of year 12 and had been employed. The applicant’s siblings live in India and neither she nor her husband has relatives living in Australia. Both the applicant and her husband speak the Punjabi language and according to the applicant’s evidence, their son understands Punjabi although he ‘cannot speak properly’. Considering her family composition, formal education completed in India and Australia and her work experience gained in Australia, I am satisfied that the applicant and her family will be able to re-establish themselves in India.

13. Balanced against any potential hardship to the applicant and her family that may result from the visa cancellation, is the fact that the applicant came to Australia on a temporary visa which created no expectation of remaining in Australia permanently. The purpose of a Subclass 457 visa is not to enable settlement in Australia on an indefinite basis. The purpose of a Subclass 457 visa is to allow skilled workers to come to Australia and work for an approved business for up to four years.

    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

14. The applicant is currently on a bridging visa as a result of the current review process. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow her to remain in Australia. If that is the case she has the opportunity to depart Australia. Whilst her failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

15. In his post-hearing submissions, the applicant’s representative submitted that, if the visa remains cancelled, the applicant and her family will be affected by a ‘risk factor’. This will result in the imposition of a three-year exclusion period (PIC 4013/4014).

16. The Tribunal observes that the applicant’s Subclass 457 visa was cancelled under s.116(1)(b) of the Act as she breached the 8107 condition imposed on her visa. Relevantly, PIC 4013(2)(b) prescribes that a person is affected by a risk factor if a visa previously held by the person was cancelled under s.116 of the Act if the visa was of a subclass specified in Column 2 of Part 2 of Schedule 4. The Tribunal finds that a Subclass 457 visa is not a visa specified in the relevant Schedule. Accordingly, the Tribunal is satisfied that the applicant is not prevented by PIC 4013 from re-applying for a temporary work visa once she finds a new employer who is approved as a standard business sponsor and has the approved business nomination in relation to the applicant.

17. The Tribunal is unable to make findings as to whether the applicant will be affected by the PIC 4014 as this will depend on the way the applicant leaves Australia. However, if the applicant is affected by the PIC 4014, that is the intended consequence of the legislation.

18. As previously noted, the Tribunal is mindful that s.48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s.116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

    Whether there would be consequential cancellations under s.140

19. Whilst the applicant’s husband’s and son’s visas were also cancelled as a consequence of this cancellation, the Tribunal notes that the consequence will not result in separation of the applicant from her husband and son.

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

20. In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).

21. The Tribunal is satisfied that in the circumstances of this case cancellation would not lead to removal. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal.

22. The applicant’s representative submitted that returning a person who will soon become an Australian citizen to a country to which he does not want to return, or to send his parents there without just cause will breach Australia’s obligations as a signatory to the United Nations Convention on the Rights of the Child. The Tribunal does not accept this claim.

23. The Tribunal acknowledges that, as a signatory to the CRC, Australia has an obligation to ensure that in all actions concerning children, the best interest of the child is a primary consideration. However, this consideration does not preclude visa cancellation. Taking into account the rights and duties of his or her parents, the Tribunal is satisfied that it is in the best interest of the applicant’s son to remain with his family.

24. The Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s visa. Based on the evidence before it, the Tribunal is not satisfied that Australia would be in breach of its international obligations pursuant to any of these international agreements.

    The impact on any victims of family violence

25. There is no evidence before the Tribunal regarding this matter.

    Other relevant matters

26. The Tribunal was further informed that the applicant is pregnant and expecting to give birth to her second child on 7 November 2019.

27. The Tribunal finds this claim to be irrelevant to its discretion as to whether the power to cancel the visa should be exercised.

28. Having had regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.

    DECISION

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

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

    Antonio Dronjic
    Member