Lahav (Migration)

[2021] AATA 1571

Lahav (Migration) [2021] AATA 1571 (22 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Chen Lahav
Mrs Hadas Goshen
Miss Maya Lahav
Mr Yahli Lahav

CASE NUMBER:  2002923

HOME AFFAIRS REFERENCE(S):          BCC2019/3622951

MEMBER:Mr S Norman

DATE:22 March 2021

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 457 (Temporary Work (Skilled)) visa.

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

Statement made on 22 March 2021 at 12:42pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – employment with the sponsor ceased over 60 days – applicant high professional skills and expertise in the IT industry – family mental health issues – COVID-19 outbreak in Israel – participation in community work in Australia – new employment offer – decision under review set aside  

LEGISLATION

Migration Act 1958, ss 116, 140, 348
Migration Regulations 1994, Schedule 8, Condition 8107

CASES

Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400
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 14 February 2020 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The Department decision was not lodged with the Tribunal. However, the applicant did lodge the Department letter dated 14 February 2020, and that advised the applicant that his visa was cancelled on 14 February 2020; after he had been issued the Notification of Intention to Consider Cancelling his visa dated 3 December 2019; and that the grounds for cancelling his visa were within s.116(1)(b) of the Act.

3. The delegate went on to cancel the visa under s.116(1)(b) 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.

4. 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.

5. The applicants appeared before the Tribunal on 11 March 2021 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent.

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

   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. Relevant to this case, these include the ground set out in s.116(1)(b) 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.

8. The Tribunal notes that a substantial amount of evidence and submissions were lodged by and for the applicant. Though not all of same has been expressly referred to herein, the Tribunal has considered all evidence and submissions prior to finalising this decision.

   Does the ground for cancellation exist?

9. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa.

10. The applicant was granted a Temporary Business Entry (Class UC) Temporary Work (Skilled) Subclass 457 visa (the Subclass 457 visa), on 27 August 2018, for the purpose of undertaking employment in the nominated occupation (Software Engineer – ANSZCO: 261313) with the approved sponsor (Hyper Anna Pty Ltd).

11. By Notice of Intention to Consider Cancellation (NOICC) of the Subclass 457 visa dated 3 December 2019, the applicant was advised that consideration was being given to cancelling his visa, under s.116(1)(b) of the Act. That was because it appeared he had not complied with condition 8107(3)(b) which had been attached to his visa. That stated:

    3. If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4) (as in force before 18 March 2018):  

    …..

    (b) if the holder ceases employment - the period during which the holder ceases employment must not exceed 60 consecutive days

12. The NOICC further stated the ‘standard business sponsor who nominated (the applicant) in the most recently approved nomination for the visa (was) HYPER ANNA PTY LTD’ (‘the sponsor’), whose nomination was approved on 12 June 2018. The sponsor had advised the Department (by email dated 16 July 2019) that the applicant had ceased employment with them effective 15 July 2019. This appeared to indicate the applicant had not complied with condition 8107(3)(b) because the period during which the applicant had ceased employment had exceeded 60 consecutive days. Based on this information, there appeared to be grounds for cancelling (the applicant’s) visa under s116(1)(b) of the Act because it appeared the applicant had not complied with condition 8107.

13. By email of 3 December 2019, the applicant advised that a Mrs Hadas GOSHEN (his wife) had ‘secured a sponsorship a while ago’. The applicant subsequently advised that his wife was the subject of a nomination approval (Department records indicated the applicant’s partner was the associated visa applicant for an approved nomination for a ICT Quality Assurance Engineer – ANZSCO: 263211, on 13 September 2019). However, the delegate noted this related to the applicant’s partner and not the applicant.  It could not therefore be linked to the applicant’s Subclass 457 visa. Therefore, the delegate found (and the Tribunal accepts), the purpose for which the applicant’s Subclass 457 visa was granted, ended on 13 September 2019 (being 60 consecutive days after the applicant ceased employment with his sponsor).

14. The applicant subsequently stated (by migration agent submissions of 14 December 2020): 

    A few weeks after the redundancy, Hadas [his wife] received a phone call from Drone Shield’s agent, Legal Vision, instructing her to withdraw the Subclass 482 Visa application due to a late arriving certificate from the police in Jerusalem, threatening that if she does not, [her] Subclass 482 Visa will be refused and we will be banned. I was not on these calls that day however I was physically near Hadas in the living room and heard the tone and harsh words of the agent. Since, to our surprise, Legal Vision advised and reassured that my old 457 is still active and that I have 60 days to find an employer and secure sponsorship, Hadas decided to withdraw the visa application in order to maintain a clean record.

15. The Tribunal accepts the Subclass 482 visa application by the applicant’s wife had been withdrawn. That being said, in their decision the delegate also noted that it did not appear the applicant disputed there were grounds to cancel his visa.

16. After then having considered the evidence, the Tribunal is satisfied the ground for cancellation in s.116(1)(b) of the Act exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

17. 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’.

18. As stated above, the applicant was granted the Subclass 457 visa on 27 August 2018 for the purpose of undertaking employment in the nominated occupation (Software Engineer – ANSZCO: 261313) with the approved sponsor (Hyper Anna Pty Ltd). The sponsor subsequently notified the Department the applicant ceased employment with them on 15 July 2019.

19. In the migration agent submissions of 14 December 2020, it was claimed inter alia the applicant was made redundant about one year after commencing to work for the nominator; but there is now a compelling need for the applicant to remain in Australia ‘due to his being highly skilled and his expertise in the IT industry, specifically in FinTech; which skill set is now ‘experiencing a world-wide boom’. The agent then went on to set out the applicant’s ‘professional skills and experience’ – and that he has a website outlining his skills. It was said that these and other skills held by the applicant were in ‘high demand in Australia’. It was also stated the applicant should be ‘eligible for the Global Talent Independent visa program, which is a program to attract the brightest and best global talent to Australia to create opportunities for Australians by transferring skills, promoting innovation, and creating jobs.’ The Tribunal understands the applicant may choose to apply for the Global Talent Independent visa program, subject to the outcome of the present proceedings.

20. The migration agent referred to COVID-19, and that as a consequence the ‘requirements for tech support and IT solutions has increased dramatically’ (and a April & June 2020 article was referred to).  Further, it is ‘evident that the IT industry is an industry with significant growth and in a time where the Australian government is keen to keep the economy going, such professionals are highly important for Australia’s COVID recovery’. And the applicant ‘demonstrates critical skills as a Software Engineer in the FinTech sector that are in demand in Australia, as demonstrated by the Priority Skilled Migration List. His extensive experience in high-level positions is of considerable benefit to Australia’ (and the Tribunal accepts the applicant was able to provide numerous references for him by persons in the industry attesting to his skills). 

21. The Tribunal also notes that in August 2020, it was said that ‘Software and Applications Programmers’ (which is generally related to the skillset of the applicant[1]), is said to be in the ‘Top 50 Jobs Most in Demand for Migrants in Australia 2020-2021’.[2]

    [1] SEE ‘SOFTWARE ENGINEER VS PROGRAMMER: WHAT’S THE DIFFERENCE?’, 13 JULY 2020, CAREER KARMA, SOFTWARE ENGINEER VS PROGRAMMER: WHAT’S THE DIFFERENCE? | CAREER KARMA , ACCESSED 8 FEBRUARY 2021.

    [2] AUSTRALIA’S MOST WANTED: THE MOST IN DEMAND JOBS FOR SKILLED MIGRATION TO AUSTRALIA 2020-2021 (UPDATED), 27 AUGUST 2020, PSS, AUSTRALIA’S MOST WANTED: THE MOST IN DEMAND JOBS FOR SKILLED MIGRATION TO AUSTRALIA 2020-2021 (UPDATED) - PSS REMOVALS , ACCESSED 8 FEBRUARY 2021.

22. In the migration agent’s (agent’s) letter of 4 February 2021, it was stated (in part):

    … Mr. Lahav received a Letter of Offer from Lumi Financial Management Pty Ltd (“Lumi”) dated 14 December 2020 for the position of Head of Engineering. Lumi is a small business lending startup which offers loans to Australian startups and entrepreneurs. To accept the offer, Mr. Lahav was required to return a signed copy of the offer of employment by 25 December 2020. As his migration matter has not yet been finally determined, Lumi has extended the offer of employment and is open for acceptance by 31 March 2021

    …..

    This extension of offer demonstrates that Mr. Lahav’s skills are recognised and highly sought after in the Australian community, which is consistent with his occupation being included on the Priority Migration Skilled Occupation List (“PMSOL”). It also demonstrates that organisations such as Lumi require certainty regarding Mr. Lahav’s migration status, particularly due to the high level of positions that he is being considered for.

23. The Tribunal noted that (words to the effect) ‘start-ups’ can be notoriously unreliable. The applicant then explained the start-up (Lumi Finance) was focussed on small and medium enterprises and on providing loans to same to ensure their businesses were able to survive and flourish, particularly in the wake of the economic impact of COVID-19 (the applicant provided substantially more detail than has been set out here).

24. In post hearing submissions, the applicant also provided evidence of the claimed approximately $40 million raised by Lumi Finance, and with which company he proposed to be employed. The capital input for the business indicated its capacity to engage the applicant in work commensurate with his skills. The proposed wage (around $180K per annum) was substantially in excess of the Temporary Skilled Migration Income Threshold.

25. The post hearing submissions (lodged with the Tribunal by migration agent letter dated 19 March 2021), indicated that Lumi Finance had raised over $39 million in support of the business (and the agent letter provides a more detailed breakdown of the source of the capital investment and further evidence corroborating the investments).

26. After then having considered the evidence lodged, the Tribunal accepts the intention of the applicant to remain in Australia, is and was for the purpose for which his Subclass 457 visa was granted.

27. Next, and regarding the extent of compliance with visa conditions, given the findings herein, the Tribunal is satisfied the applicant breached condition 8107. There is no information to indicate the applicant had been non-compliant with any other visa condition/s, but as noted at hearing, the requirement to maintain employment with an approved sponsor is a significant condition for the grant of the visa.

28. Next, and regarding the degree of hardship that may be caused to the applicant and his family (financial, psychological, emotional or other hardship) if his visa is cancelled, in the agent submissions of 14 December 2020, it was claimed inter alia the applicant and his family will suffer significant hardship if the visa is cancelled. It was claimed that since arriving in 2018, the applicant and his family had ‘settled well in the Australian community’; and that his two children are attending school. The agent then provided reasons why the children would experience anxiety if change was forced upon them. This included for reason of being subject to an abrupt change, fractured relationships etc, which the Tribunal presumed would be common for many children in similar circumstances (aged 8 & 10 years); and medical articles were referred to. The applicant also said he feared the impact of returning to Israel on his children. In the agent submissions of 14 December 2020, it was also claimed inter alia the cancellation of the family members visas would be ‘devastating’. These matters are discussed below.

29. The Tribunal accepts the applicants have reasonably successfully integrated into the Australian community and that the applicant engages in community work in Australia – set out below. I also accept the two children are attending local schools.

30. Regarding the impact on the applicant’s children in Australia if the visa is cancelled, in agent submissions of 18 December 2020, it was claimed that Master Yahli LAHAV (DOB: 26 September 2010 – the applicant’s son), had inter alia:

    …  [met] DSM 5 criteria for Generalised Anxiety Disorder. Treatment has included the completion of the Cool Kids anxiety management program that utilises principles of cognitive-behavioural therapy.

31. Amongst other things, recommendations from a child psychologist were also lodged (see letter dated 10 December 2020). This included, but was not limited to the following:

    I provide my support to the family in their appeal to the visa cancellation case as I believe that Yahli does not have the capacity to cope with the disruption, changes and uncertainty that will result if the family is unable to stay in Australia. It would also be detrimental for Yahli to terminate psychological treatment at this time, as a productive therapeutic relationship has been established and continued cognitive behavioural therapy including additional pharmacological intervention is considered best practice. It is my strong opinion that such a life change would negatively impact not only the wellbeing of Yahli, but the wellbeing of the whole family. It is also my opinion that with continued engagement in psychological treatment and increased stability (that would come from remaining in Australia), Yahli is expected to make further progress and there is an increased likelihood of symptom remission.“

32. In submissions of 15 December 2020, the applicant lodged article/s of the adverse impact of some mental health issues. However, evidence before the Tribunal also included:

    Israel provides universal coverage to citizens and permanent residents as part of its national health insurance law. Residents choose from four competing non-profit health plans that provide a mandated benefit package, including hospital, primary, specialty, mental health, and maternity care, as well as prescription drugs and other services. There are no deductibles, but some cost-sharing is required for specialist visits and prescription drugs. The compulsory insurance system is funded primarily through a national income tax and an income-related health tax. Most citizens also purchase voluntary health insurance for medications not covered by the benefit package and for faster access and greater provider choice. Almost all governmental health functions are organized by the Ministry of Health, which has regional and district health offices.

    …..

    Since the health plans took over mental health care, the availability of community-based services has increased substantially. However, there are still significant waiting times, particularly for psychotherapy and child psychiatry. These delays are due in part to shortages of some types of mental health professionals and to the health plans’ difficulties in attracting and contracting with professionals, who can earn much more in the private sector.

    …..

    The Ministry of Health is leading a major national effort to reduce disparities, in cooperation with the NHI health plans and hospitals. Key initiatives include:

    ·     Reducing financial barriers to care, particularly for those with low incomes and other vulnerable populations. Most prominently, mental health and dental care for children and the elderly have been added to the NHI benefit package.[3]

    [3] International Health Care System Profiles, Israel, The Commonwealth Fund, 5 June 2020, Israel | Commonwealth Fund , accessed 11 January 2021.

33. That being said, the Tribunal notes the applicant and his family arrived in Australia in 2018, and the applicant’s children were apparently able to cope with that move. The Tribunal also believes the applicant husband and wife would be able to find work commensurate with their skills in Israel, and therefore be able to afford proper care for their children. Further, the family of the applicant husband or the applicant wife in Israel, who continue to reside around where the applicant formerly lived in Israel, would presumably be able to provide assistance and support to the children should the applicant’s visa be cancelled.

34. Be that as it may, the Tribunal does accept that two major international moves within three years would constitute a significant disruption to the lives of the applicant’s two children; and to the applicant husband and wife.

1. Next, the agent said that Israel was involved in ongoing conflict with the ‘Palestinian National Authority’ (particularly near the Gaza Strip). The agent then referred to varying articles about this conflict. Also, that high schools in Israel may be targeted (a November 2017 UNICEF article was cited). The country information before the Tribunal included that:

   The current U.S. Department of State Travel Advisory at the date of this report’s publication assesses Israel at Level 2, indicating travellers should exercise increased caution due to terrorism. Reconsider travel to the West Bank due to terrorism, potentially violent civil unrest, and the potential for armed conflict. Do not travel to Gaza due to terrorism, civil unrest, and armed conflict. Review OSAC’s report, Understanding the Consular Travel Advisory System.[4]

   [4] ISRAEL 2020 CRIME & SAFETY REPORT, 5 APRIL 2020, OSAC, ISRAEL 2020 CRIME & SAFETY REPORT (OSAC.GOV) , ACCESSED 15 DECEMBER 2020.

2. The Tribunal also accepts that exposure to conflict could give rise to serious problems for children:

   Conflict leads to toxic stress and health problems in childhood and beyond. Long term investment in evidence informed mitigation strategies is needed to end the devastating cycles of violence, write Muthanna Samara and colleagues [5]

   [5] CHILDREN’S PROLONGED EXPOSURE TO THE TOXIC STRESS OF WAR TRAUMA IN THE MIDDLE EAST, THEBMJ, 19 NOVEMBER 2020, CHILDREN’S PROLONGED EXPOSURE TO THE TOXIC STRESS OF WAR TRAUMA IN THE MIDDLE EAST | THE BMJ , ACCESSED 11 JANUARY 2021.

3. However, and as noted at hearing, thousands of persons move to Israel each year (which was not disputed) and even though Israel is a relatively ‘narrow’ country and the distance from Tel Aviv (near where the applicants formerly resided) to Jordan is little more than 70kms, and the distance between Tel Aviv to the West Bank is under 20kms, the applicants’ families remain near Tel Aviv as do many thousands of other persons, who have chosen to safely make the area their home.

4. However, the Tribunal will accept the applicant (who was principally raised in Israel) would prefer to reside away from the conflict[6] that does arise there.

   [6] Safety in Israel, Expat Arrivals, Safety in Israel | Expat Arrivals , accessed 8 February 2021.

5. Next, it was claimed the ‘financial situation in Israel was horrible’, the applicant said his family had invested ‘all their financial ability into coming to Australia and supporting themselves’. However, if the applicant’s skills are as sought after as was claimed, it may appear that job opportunities could be available elsewhere. Evidence of the Israeli economy included:

   The Israeli economy has registered one of the best performances of OECD countries during the last few years. Since the mid-2000s, GDP growth has averaged 3.7%, mainly due to the increase in the working age population and the participation rate. After reaching 3.4% of GDP in 2018, growth increased slightly in 2019, estimated at 3.5% of GDP by the IMF, notwithstanding the global slowdown dampening exports and political instability eroding consumer and business confidence.[7]  

   and:

   There are more than 350 multinational research and development (R&D) centres in Israel, established by global companies such as Apple, Facebook, GE, Google, IBM, Intel, Microsoft, and Samsung. Apple opened its first R&D office outside the US in Israel.

   On the back of the rapid expansion of the hi-tech sector, services exports now account for over 46 per cent of Israel's total exports.[8]

   [7] Israel: Economic and Political Overview, The economic context of Israel, NORDEA, December 2020, The economic context of Israel - Economic and Political Overview - Nordea Trade Portal , accessed 15 December 2020.

   [8] Israel Country Brief, Department of Foreign Affairs and Trade, Israel country brief | DFAT , accessed 8 February 2021.

6. The applicant and his wife both work in the IT industry (though the applicant specialises in FIN TECH). The country information stated:

   High tech companies are located throughout the country: in central Tel Aviv, in the suburbs of Jerusalem, even in development towns in the Galilee and the Negev. But the main centers are in Tel Aviv's Atidim Industrial Park, to the north of Tel Aviv in Herzliya Pituah, and to the south in Rehovot, adjacent to the Weizmann Institute, as well as in Tel Aviv's northeastern suburbs. Israel invests 2.2% of its gross domestic product in R&D (the third highest level in the world, after Japan and Sweden and on a par with Germany).[9]

   [9] Israel Science & Technology: High-Tech Sector, Jewish Virtual Library, Israeli High-Tech Sector (jewishvirtuallibrary.org) , accessed 15 December 2020; and see also Hi-Tech Industries in Israel, Israel Ministry of Foreign Affairs, Hi-Tech Industries in Israel (mfa.gov.il) , accessed 15 December 2020.

7. The applicant had said the Israeli economy has suffered during the COVID-19 pandemic;[10] and the Tribunal accepts this may be correct, as have many first world economies. That being said, the Tribunal does accept the applicant (with tertiary qualifications and 20 years work experience in Israel) and his wife could find work commensurate with their skills in Israel.

   [10] ISRAEL'S SECOND LOCKDOWN CARRIES A HEFTY ECONOMIC PRICE, 9 OCTOBER 2020, REUTERS, ISRAEL'S SECOND LOCKDOWN CARRIES A HEFTY ECONOMIC PRICE | REUTERS , ACCESSED 15 DECEMBER 2020.

8. Next, in the agent submissions of 14 December 2020, the applicant had claimed to fear he may contract COVID-19 in Israel. Substantially more evidence was also lodged about COVID-19, both from around the world and from Israel (including restrictions on travel to non-citizens). However, given the release of vaccines in early 2021, including in Israel,[11] that is not likely to be an ongoing hardship.

   [11] SEE ISRAEL'S CORONAVIRUS VACCINE SCHEME IS THE FASTEST IN THE WORLD. NOW IT'S BEING PUT TO THE TEST, ABC NEWS, 23 FEBRUARY 2021, ISRAEL'S CORONAVIRUS VACCINE SCHEME IS THE FASTEST IN THE WORLD. NOW IT'S BEING PUT TO THE TEST - ABC NEWS, ACCESSED 11 MARCH 2021.

9. In the agent’s letter of 4 February 2021, it was stated (in part):

   According to Reuters, Israeli Prime Minister Benjamin Netanyahu said, “Other than rare exceptions, we are closing the sky hermetically to prevent the entry of the virus variants and also to ensure that we progress quickly with our vaccination campaign.”

   and:

   We are instructed to submit that the effects of COVID-19 are a compelling reason to grant Mr. Lahav a visa. This is because he would be forced to return to a country which is still fighting the virus. Should Mr. Lahav be compelled to leave Australia, Australia would lose a valuable talent vital to its economic recovery from its own fight with COVID-19.

10. Be that as it may, in the article COVID-19 and travel dated 30 October 2020, it was stated:

    30 October 2020
    

    [12] COVID-19 and travel, Smartraveller.gov.au, Israel and the Palestinian Territories Travel Advice & Safety | Smartraveller , accessed 15 December 2020.

    There's a ban on overseas travel from Australia. You can’t leave Australia unless you get an exemption from the Department of Home Affairs.[12]

11. Accordingly, the applicant and or his family will not be able to depart Australia or return to Israel, without permission; though same may be granted after sufficient vaccinations had been administered – and which should remove any material risk of being harmed by the coronavirus.

12. However, after considering all the evidence, the Tribunal will accept the applicant and his family would be subject to some hardship should the applicant’s visa be cancelled.

13. Next, and regarding the circumstances in which the ground for cancellation arose, this was due to the applicant ceasing employment with his approved nominator and failing to secure an approved nomination within 60 consecutive days from the date of cessation.

14. In agent submissions of 14 December 2020, it was claimed the applicant was ‘made redundant in May 2019’; that he ceased working on 15 July 2019; that he was served the Notice of Termination and Redundancy on 20 May 2019 (effective 17 June 2019); this was due to the ‘business restructure and financial difficulty’. It was also claimed inter alia that if the applicant had received timely and correct advice (from a prior migration agent) in relation to his situation, the applicant would not have breached the condition on his Subclass 457 visa.’

15. The Tribunal notes that applicants are provided advice as to the condition/s attached to their visa on grant. It is the applicant’s responsibility to ensure they continue to comply with those condition/s. Be that as it may, after considering the evidence and submissions presented about this (which have been referred to herein), and after having discussed this at hearing, the Tribunal does accept the breach was not intentional on the part of the applicant.

16. In the agent submissions of 14 December 2020, it was claimed inter alia the applicant had been ‘honest and truthful during his dealings with the Department’. The agent also set out information on the applicants ‘history of compliance with Australian laws’, ‘Integration into the Australian community’ (after having resided here for around 2 years) –  references and evidence were lodged in support (including reference to the applicant’s volunteer work – and inter alia that he had acted as a pro bono technical adviser). That being said, the Tribunal has no adverse information about the applicant’s behaviour (past or present) towards the Department or the Tribunal.

17. Next, the Tribunal notes that if the applicant’s visa is cancelled, the visas of members of his family unit would also be automatically cancelled. Those persons include:

    • GOSHEN, Hadas (04 April 1979) - CID 34876522692
    • LAHAV, Yahli (26 September 2010) - CID 43863563359
    • LAHAV, Maya (16 April 2012) - CID 51178563392

18. Next, if the applicant’s visa is cancelled, he would become an unlawful non-citizen and liable to be detained under s.189 and removed under s.198 of the Act. However, there is no evidence before the Tribunal that has satisfied me the applicant would be subject to indefinite detention. Further, after considering the evidence the Tribunal is satisfied the applicant could temporarily retain his Bridging visa in order to remain in the community to organise his affairs prior to departing Australia.

19. The Tribunal also notes that if the applicant’s visa is cancelled, he would be subject to s.48 of the Act, and would have limited options to apply for further visas in Australia.  The Tribunal notes this may prevent him from applying for the Global Talent Independent visa program, which the migration agent advised the applicant may apply for and which the agent believed the applicant may qualify for. Without making any findings, the Tribunal will accept the applicant may attempt to obtain a visa under the Global Talent Independent visa program.

20. The applicant would also be subject to PIC 4013; meaning he might not be granted a temporary visa for three years from the date of cancellation.

21. Next, in agent submissions of 14 December 2020, it was claimed (words to the effect) the interests of the applicant’s children would be adversely impacted by the automatic cancellation of their visas, and this may constitute a breach of the Convention on the Rights of the Child - Article 37 & Article 3 (the best interests of the child shall be a primary consideration).

22. Without elaborating the issue, the Tribunal does accept the applicant’s children would be negatively impacted if the applicant’s visa is cancelled. The Tribunal notes its obligation is to consider the best interests of the child, but the best interests of the child without more, does not prevent the Tribunal from cancelling an applicant’s visa. However, for the reasons set out herein, the Tribunal has decided to set aside the decision now before it.

23. Next, in the agent submissions of 4 February 2021, it was stated, ‘Further to the information regarding community involvement in the main submission dated 14 December 2020, we wish to advise that Mr. Lahav is a volunteer with the North Ryde Anglican Church in the ‘Feeding the Community’ project [at hearing the applicant explained, and the Tribunal accepts, that he performed similar work in Israel]. This further demonstrates his commitment to his local community, including the vulnerable and disadvantaged.’ After discussing this at the hearing, the Tribunal does accept the applicant has engaged in community work in Australia.

24. Next, in the agent submissions of 14 December 2020, the agent advised that the applicant’s current visa status of a Bridging E Visa, despite including work rights, has made it difficult in securing employment. It was said the applicant and his spouse are high level (IT) professionals and it is reasonable for prospective employers to require some certainty as to their migration status, as these positions cannot be easily replaced.

25. However, and as emphasised at hearing, it did not matter that the applicant held a high level skill set (which the Tribunal accepts is accurate given the references, his qualifications, his work experience, his knowledge of the business area, and after having discussed these and other matters at hearing). What is important is that the applicant continues to meet the criteria and conditions attached to the visa he is granted. The Tribunal accepts the applicant now has a viable position (offered by Lumi Financial Management Pty Ltd), in which it is proposed he commences work as soon as his migration status is formalised; and by which he would continue to meet a primary purpose for the grant of his Subclass 457 visa. Amongst other things, he would also need to ensure he is employed by an approved nominator.

26. However, given the Tribunal accepts the purpose the applicant intends to remain in Australia now meets the purpose for which his Subclass 457 visa was granted; given the Tribunal accepts that two major international moves in three years would negatively impact his (minor aged) children; given the applicant does appear to have a substantial skill set which could be beneficial to the Australian community; given the Tribunal accepts the breach was not intentional; and given the applicant’s engagement in community work in Australia, the Tribunal does not propose to exercise the discretion to cancel the visa in this case.

27. After then considering the circumstances as a whole, the Tribunal concludes that the applicant’s 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 457 (Temporary Work (Skilled)) visa.

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

    Mr S Norman
    Member