MAHIL (Migration)

[2017] AATA 2752

MAHIL (Migration) [2017] AATA 2752 (13 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ramandeep Kaur MAHIL
Mr Preetkamal Singh MAHIL
Miss Tehzeeb Kaur MAHIL

CASE NUMBER:  1605607

DIBP REFERENCE(S):  BCC2016/774465

MEMBER:L. Hawas

DATE:13 December 2017

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 13 December 2017 at 3:03pm

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Requirement to not cease employment for more than 90 days – Employment ceased for more than 90 days – Significant period of unemployment – Involuntary unemployment – Purpose of stay inconsistent with purpose of visa – Significant hardship – Medical condition – Visa expiring shortly - Consequential cancellation – No jurisdiction to review consequential cancellations

LEGISLATION
Migration Act 1958, s 48, 116, 140, 348
Migration Regulations 1994, r 2.12, Schedule 8, Condition 8107

CASES
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 to review a decision dated 19 April 2016 made by a delegate of the Minister for Immigration to cancel the first applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (Act).

2. The first applicant’s visa was subject to condition 8107(3)(b), which provided that if she ceases employment with her nominated employer, the period during which she ceases employment must not exceed 90 consecutive days. The delegate cancelled the first applicant’s visa under s.116(1)(b) of the Act because she breached condition 8107(3)(b) by ceasing employment with her nominated employer for more than 90 consecutive days. In this review, the Tribunal must decide whether that ground for cancellation is made out, and if so, whether the proper exercise of its discretion requires the visa to remain cancelled.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision before the Tribunal is the decision cancelling the first applicant’s visa. The other applicants’ visas were automatically cancelled as a consequence of that cancellation. The visas of the other applicants were not cancelled by 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 applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the first applicant’s visa should be affirmed.

   Procedural history and the evidence before the Tribunal

5. The delegate’s decision record dated 19 April 2016, which the first applicant gave to the Tribunal in the review, recorded the following:

   (a)On 24 December 2013, the first applicant was granted a temporary business entry (class UC), temporary work (skilled) (subclass 457) visa, which was to remain current for four years until 24 December 2017;

   (b)The standard business sponsor who sponsored the first applicant for her 457 visa was Sahota Café and Restaurant Pty Ltd (Sahota). The first applicant worked for Sahota in the approved position of chef;

   (c)The first applicant’s 457 visa contained condition 8107(3)(b);

   (d)By notice of intention to cancel the first applicant’s visa dated 22 March 2016, the department notified the first applicant that there were grounds to cancel her visa for breach of condition 8107(3)(b). The notice sought a written response from the first applicant;

   (e)The first applicant responded in writing by letter to the department dated 8 April 2016. Her response was to the effect that Sahota objected to her taking time off work to recover from pre-and-post natal complications. Ultimately, Sahota closed its business operations and she ceased work with Sahota for that reason. She tried to locate another employer who would sponsor her but she was unsuccessful. She will encounter financial difficulty if her visa was cancelled as a result;

   (f)Sahota advised the department that the first applicant ceased employment with it on 23 September 2015;

   (g)The first applicant was not the subject of a fresh application to nominate her or an approved nomination at the time of the delegate’s decision;

   (h)The first applicant had not breached any other visa conditions and had always co-operated with the department;

   (i)The first applicant had breached condition 8107(3)(b) of her visa; and

   (j)In the circumstances before the delegate, he considered the appropriate exercise of his discretion favoured cancelling the first applicant’s 457 visa under s. 116(1)(b) of the Act.

6. On 21 April 2016, the first applicant applied for a review of the delegate’s decision to cancel her visa.

7. It then took over a year for this matter to get to hearing. The delay was not occasioned by any delay by the Tribunal in determining the matter or any deliberate delay by the first applicant. The delay was occasioned by the first applicant suffering from back problems late in 2016, and her involvement in a serious car accident in March 2017. The relevant procedural history is set out in the paragraphs that follow.

8. By letter dated 17 November 2016, the Tribunal notified the first applicant that it had considered the information before it but was unable to make a favourable decision on that information alone. The Tribunal invited the first applicant to a hearing on 2 December 2016 at which time she could give oral (and any written) evidence and present her arguments.

9. By email the Tribunal received on 30 November 2016, the first applicant sought an adjournment of the hearing on grounds she was suffering from an acute back condition that interfered with her ability to attend the hearing and give evidence. The adjournment application was supported by a medical certificate and other medical evidence. By letter to the applicants dated 1 December 2016, the Tribunal notified the applicants that it had adjourned the application to a date to be determined.

10. By letter dated 8 March 2017, the Tribunal notified the first applicant that it had re-scheduled the hearing to 28 March 2017, and it invited the applicants to attend a hearing on that date.

11. By email the Tribunal received on 21 March 2017, the first applicant stated that she had been involved in a car accident in which she sustained serious injuries. She was unable to stand or walk and was in pain. She was hospitalised at the South-Eastern Hospital in Noble Park. For those reasons, she was unable to attend the hearing on 28 March and she sought an adjournment to another date. The applicant’s further adjournment application was supported by a medical certificate, in which the first applicant’s treating doctor stated that she had been involved in a car accident in which she sustained serious injuries to her arms and legs, and that she would not be able to walk for approximately eight weeks. The doctor stated that she could not attend a hearing on 28 March. By letter to the applicants dated 23 March 2017, the Tribunal notified the applicants that it had adjourned the application to a date to be determined.

12. After a series of communications between the Tribunal and the first applicant about the progress of her recovery and when she would be able to attend a hearing, by letter dated 3 July 2017, the Tribunal notified the first applicant that it had re-scheduled the hearing to 18 July 2017, and it invited the applicants to attend a hearing on that date.

13. By email the Tribunal received on 13 July 2017, the first applicant stated that she was still recovering from her injuries, was still in pain, and could barely stand. She sought another adjournment of the hearing. Her application was supported again by a medical certificate, in which her treating doctor stated that she suffered severe back and leg pain, and she could not sit for prolonged periods. By letter to the applicants dated 17 July 2017, the Tribunal notified the applicants that it had adjourned the application to a date to be determined.

14. By letter dated 11 September 2017, the Tribunal notified the first applicant that it had re-scheduled the hearing to 20 September 2017, and it invited the applicants to attend a hearing on that date.

15. On that occasion, the first applicant did not apply for an adjournment of the hearing.

16. The first applicant appeared before the Tribunal on 20 September 2017 to give evidence and present arguments. The hearing proceeded with the assistance of an interpreter in the English and Punjabi languages. The first applicant gave evidence in her review, and her husband (the second applicant) gave evidence in the first applicant’s review.

17. The first applicant walked into the hearing and left with the assistance of a walking stick or cane. She did not complain during the hearing of pain or discomfort, and she did not appear to the Tribunal to be physically uncomfortable.

18. During the hearing, the first applicant gave the following evidence:

    (a)She was born on 11 March 1984 (33 years old);

    (b)She is married to the second applicant. They have one daughter, the third applicant. She was born in Australia on 22 July 2014;

    (c)She came to Australia in October 2008 on a student visa. She began by studying for a certificate III and diploma in hospitality management at the Infinity Institute in Melbourne. While studying for that qualification, she enrolled in a diploma of hospitality management at the same school. She qualified with both qualifications in 2010;

    (d)Subsequently, she commenced a certificate IV in hospitality management course at the Australian Education Academy in Springvale, which she completed in 2012;

    (e)After completing that course, she commenced a diploma in business management course at the same school, which she completed in 2013;

    (f)Later in 2013, Sahota applied to nominate her for a 457 visa working as a chef, which application was approved. She obtained her 457 visa on 24 December 2013. But for its cancellation, the visa would have expired on 24 December 2017;

    (g)She commenced working with Sahota as a chef in December 2013. At the time, she was pregnant with her daughter. She disclosed her pregnancy to Sahota’s principal toward the end of December 2013. The principal reacted by giving her ‘bad expressions’. He would not allow her leave to go to medical appointments, and when she did attend appointments, he would force her to make up the lost hours;

    (h)When she had her child in July 2014, she sought maternity leave. Sahota’s principal said he would not allow her to take maternity leave but ultimately she took some leave. She had complications with her birth, and took about three months off to September 2014 to recover. During her time off, Sahota’s principal pressured her constantly to return to work. She was not paid for that leave;

    (i)On her return, Sahota’s principal gave her heavy duties while she was still suffering from complications associated with childbirth. She could not stand for long periods of time and she would become tired quickly. Sahota’s principal demanded more of her. He insisted she work longer hours and gave her heavy duties that were beyond her physical capacity;

    (j)He also demanded from her $8,000 to $9,000 to compensate him for the time she had taken off. He said that if she did not pay, he would ‘report her to the immigration department’. She did not pay him any money;

    (k)In late September 2015, Sahota’s principal told her that she should ‘extend her (unpaid) maternity leave’ because she was not performing well and he had some ‘complications’ with his business. She told him that she wanted to take a few days of unpaid leave so she could recover physically. He said she should just look for another sponsor. That was on 23 September 2015, which was her last day of work;

    (l)Sahota subsequently closed its restaurant without telling her (while she was on leave);

    (m)Sahota’s principle generally harassed her in her time working for him;

    (n)After September 2015, she looked for another employer to nominate her for a 457 visa but she was not able to locate one. She has not worked since September 2015;

    (o)When she left work at Sahota, she had a one year old daughter and her husband was not working. Her parents and those of her husband in India were too poor to support them;

    (p)After leaving Sahota, she borrowed money from a cousin and her friends to assist with living expenses. She borrowed about $11,000 that she will need to repay;

    (q)She is on a bridging visa E with work rights pending the outcome of this review. Under those work rights, her husband has been working as a truck driver to support her and her daughter;

    (r)She has returned to India twice since first arriving in Australia; once in 2011 for her Sikh marriage to her husband (who she met in Australia in 2008), and in 2016 when her husband’s grandfather died;

    (s)She wants to remain in Australia until her 457 visa expires on 24 December 2017 because:

    (i)She wants to improve her knowledge as a chef so she can use that extra knowledge in India. She wants to learn to cook cuisine other than Indian, and learn new cooking methods and techniques to apply that knowledge in India. She proposes to do that through volunteer work or ‘in classes’ because she is not working at present; and

    (ii)She wants to give her daughter a better future when she returns to India, and some extra time in Australia to improve her skills will improve her prospects in India for herself and her family;

    (t)If she finds another nominating employer before 24 December 2017 when her 457 visa expires, she will apply for another 457 visa if necessary. If she cannot find another nominating employer before 24 December 2017, she will return to India;

    (u)She had a serious car accident in January 2017 when a car hit her while she was walking from her car to the shops. The car dragged her under it for some time, and she was caught under the car when it stopped. Onlookers and her husband had to lift the car to free her.  Her pelvis was broken, her ribs were broken, and she had multiple fractures all over her body. She is still undergoing rehabilitation;

    (v)The Victorian Traffic Accident Commission (TAC) is paying for all her rehabilitation from the car accident. In a few weeks, she must have surgery on one shoulder, and then she needs to have a plate in her shoulder and screws in her pelvis removed. She can complete that treatment in Australia at the expense of the TAC. She is unlikely to receive that treatment in India, and if she can she will need to pay for it, which she cannot afford;

    (w)If she must return to India, she can’t give her daughter a good future. Further, she has been in Australia for 10 years and has become accustomed to life here. If she returns to India, she will need to re-adjust to life there and she won’t be able to give her daughter the bright future she deserves; and

    (x)The Tribunal told her that subject to an application for some other visa, she was always going to be required to return to India when her 457 visa expired on 24 December 2017 because it was a temporary visa that did not entitle her to a permanent stay. In response, she said that if she could stay in Australia until 24 December 2017 she will have had the satisfaction of having stood against the wrong Sahota visited on her.

19. The second applicant said the following in evidence:

    (a)During 2016, the first applicant was ‘training’ in a café/restaurant in Bendigo. She worked four hours a day, two days a week. She was not being paid for that work. She was hoping that the principal of the restaurant would sponsor her for a 457 visa. The principal’s name was ‘Paul’. He could not remember Paul’s surname or the name of the restaurant. The first applicant could not remember either because she suffered memory loss after her accident. Paul did not sponsor the first applicant because the accident prevented her working for some time;

    (b)He agreed that the first applicant had breached a condition of her visa but said the breach was out of her hands. Sahota was responsible; and

    (c)If the Tribunal sets aside the cancellation decision, the visa will remain current until 24 December 2017. During that time, the first applicant wants to complete her course of treatment in Australia at the expense of the TAC. But her course of treatment is unlikely to be completed by the end of 2017. She is having another surgery on her shoulder in October or November 2017. After that, the Alfred Hospital will recommend a treatment plan. She is also having rehabilitation once a week.

20. The Tribunal explained to the applicants that it did not have the power to extend their stay in Australia beyond 24 December 2017. The Tribunal told the applicants that given the first applicant is undergoing treatment at the expense of the TAC, the applicants should obtain urgent advice about other visas they could seek to extend their stay in Australia to allow the first applicant to complete her treatment. The second applicant said that if the 457 visas were reinstated, the applicants could apply for other visas but while the 457s remained cancelled they could not apply. He said that somebody from Maurice Blackburn Lawyers had told him that that the applicants could apply for a medical visa but only after this review had been determined in the applicants’ favour. The Tribunal told the applicants that it was not certain about the veracity of Maurice Blackburn’s advice, and it could not and did not give advice. The Tribunal urged the applicants to obtain further advice about their options as soon as possible.

21. After the hearing, the first applicant submitted to the Tribunal medical evidence about her condition and treatment plan. The medical evidence details a pelvic fracture that has been treated with screws. The treating doctor reports that the fracture is healing. The medical evidence also describes an AC joint injury that requires reconstructive surgery to relieve pain and heal. The first applicant’s treating doctor stated that he would arrange the reconstructive shoulder surgery once the TAC had approved it (presumably agreed to pay for it). The medical evidence also details various other injuries from which the first applicant is reported to be recovering.

    Consideration of claims

    Does the ground for cancellation exist?

22. Under s.116 of the Act, the Minister may cancel a visa if he is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, those 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 proper exercise of the discretion requires the visa to be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

23. The Minister or the Tribunal may cancel a visa under s.116(1)(b) of the Act if satisfied that the holder did not comply with a condition of the visa. Here, the first applicant’s visa contained condition 8107(3)(b), which provided that the first applicant must not cease employment with her nominated employer (or an entity associated with the employer) for more than 90 consecutive days.[1]

    [1] The department’s records on the Integrated Client Services Environment (ICSE) confirm that the first applicant’s visa was subject to condition 8107.

1. During the Tribunal hearing, the first applicant said:

   (a)She ceased working for Sahota on about 23 September 2015; and

   (b)She accepted that the delegate had lawful grounds to cancel her 457 visa.

2. On the evidence before the Tribunal it finds that:

   (a)The first applicant’s 457 visa was subject to condition 8107, and more particularly condition 8107(3)(b). The visa was granted on 24 December 2013, and would have, but for its cancellation, remained effective until 24 December 2017;

   (b)The first applicant ceased employment with Sahota on about 23 September 2015, and the period during which the first applicant subsequently remained unemployed exceeded 90 consecutive days; and

   (c)The first applicant breached condition 8107(3)(b) of her 457 visa.

3. Accordingly, the Tribunal is satisfied that the delegate had lawful grounds to cancel the first applicant’s visa.

4. As those grounds do not require mandatory cancellation of the first applicant’s visa under s. 116(3) of the Act, the Tribunal must proceed to consider whether, as a matter of discretion, the power to cancel the visa should be exercised.

   The discretion

5. The Act and the Migration Regulations 1994 (Regulations) do not prescribe the matters to be considered in the exercise of the discretion to cancel a visa. The discretion is to be guided by having regard to all the relevant circumstances. The Tribunal may have regard to matters of government policy such as the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’. But the Tribunal is not bound to follow PAM3, and it can have regard to a matter outside of PAM3 so long as the matter is relevant.[2] However, PAM3 constitutes a useful starting point for the exercise of the discretion.

   The purpose of the first applicant’s travel to and stay in Australia

   [2] See Brennan J in Re Drake (No. 2) (1979) 2 ALD 634. 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 should not be elevated into legally necessary or relevant considerations. The policy guidelines in PAM3 cannot go beyond the wording of the legislation, even when they are favourable to the applicant. See for example Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459.

6. As explained to the first applicant during the hearing, the purpose of a 457 visa is not served by allowing her to remain in Australia to look for employment opportunities, improve her job prospects in Australia or India, improve her financial position, or undergo treatment for injuries. Those matters were all cited (directly or indirectly) by the first and second applicants as reasons for wanting to remain in Australia. The purpose of a 457 visa is to enable a 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 457 visa is one of limited duration for the purpose of working for a sponsor in a skilled occupation. If the applicant’s visa was not cancelled, it would have expired on 24 December 2017, and failing some action by the first applicant extending her authority to remain in Australia, she would have been required to leave Australia after that date.

7. Although the first applicant initially came to Australia to study, the purpose of her continued stay in Australia from 24 December 2013, when her 457 visa issued, was to work for the life of the visa as a chef for Sahota, being her approved standard business sponsor. 

8. The first applicant ceased employment with Sahota on about 23 September 2015. The Tribunal is prepared to accept that the first applicant acted promptly and began searching for a new employer from about September 2015. However, over two years have now passed since the first applicant stopped working for Sahota, and she has not found another employer prepared to nominate her for a 457 visa and employ her under that visa.

9. Although the first applicant did not say so in evidence, the Tribunal accepts that her serious accident in January 2017 and the resulting injuries (which she no doubt suffered) hampered severely her ability to find work after that time. She suffered serious injuries, was hospitalised for some time, and she is still undergoing treatment. The Tribunal has taken that into account and it stands to the first applicant’s favour. But balanced against that, and outweighing it in this purpose-of-visa consideration, the first applicant had from between September 2015 and January 2017 – some 14 months – unimpeded by injuries from the car accident to locate a new employer and for that employer to bring a fresh nomination application. The first applicant was unable to secure an employment offer or a commitment from a new employer to nominate her, let alone make a fresh nomination application before January 2017.

10. The Tribunal has considered the second applicant’s evidence that the first applicant trialled with ‘Paul’ in the Bendigo café/restaurant unpaid. That demonstrates that the first applicant actively sought work and was prepared to trial unpaid. But the Tribunal gives that matter limited weight. ‘Paul’ did not offer the first applicant paid work, and he did not apply to nominate her for a 457 visa.

11. On the evidence, the Tribunal is satisfied that the first applicant has been afforded a reasonable opportunity to secure new employment in Australia and facilitate a fresh nomination application. That has not occurred. That stands against the first applicant in this review.

12. The Tribunal has also taken account of the first applicant’s wish (expressed primarily through the second applicant) to remain in Australia to undergo treatment at the expense of the TAC. The Tribunal accepts that the first applicant was involved in a serious accident that was not her fault, and that she suffered serious injuries as a result. The Tribunal accepts that the TAC is meeting the cost of at least some of her treatment. And the Tribunal accepts that the first applicant will suffer hardship if she were required to return to India with her treatment incomplete. But the Tribunal does not accept that the necessary treatment is not available in India – there is no evidence before the Tribunal to make that out – although it accepts the first applicant will not be able to afford extensive treatment in India. But for the reasons set out in paragraphs 51 and 52 below, the Tribunal does not consider that to constitute grounds to set aside the delegate’s decision to cancel her 457 visa. Treatment for injuries is not the purpose of 457 visa, and the first applicant could always have applied, and perhaps can still apply, for a medical visa extending her stay in Australia to undergo treatment. The first applicant’s wish to stay in Australia to undergo medical treatment at the TAC’s expense is not consistent with a stay in Australia under 457 visa.  

13. Having regard to the matters set out under this heading above, the Tribunal finds that the purpose of the first applicant’s continued stay in Australia on a 457 visa no longer exists. She does not work for Sahota any longer and she has been unemployed for about two years (with 14 months of that time unimpaired by injuries from the car accident). The Tribunal considers the lack of a fresh nomination application or employment offer, and on the evidence little prospect of one, to be a substantial matter against the first applicant. That undermines the purpose of her continued stay in Australia on a 457 visa. The Tribunal places substantial weight on the purpose of the applicant’s continued stay in Australia under a 457 visa no longer existing.

    Circumstances in which the ground for cancellation arose

14. In her evidence, the first applicant said that Sahota effectively asked her to leave on 23 September 2015, which she did, and Sahota closed its restaurant shortly after without telling her. 23 September was the first applicant’s last day at work with Sahota.

15. The first applicant said that Sahota’s principle harassed her, would not agree to give her proper maternity leave, gave her heavy duties while she was still suffering complications from child birth, and asked her for $8,000 or $9,000 to make up for time off. Sahota then effectively dismissed her. The first applicant did not tender any contemporaneous evidence supporting her complaints, such as emails or letters to Sahota (or some other person or authority) complaining about her treatment at Sahota’s hands at the time the poor treatment is alleged to have occurred.

16. In any event, the first applicant did not say that she left Sahota because it treated her poorly. She said that she left Sahota because it asked her to take extended maternity leave with a view to her locating another employer (take maternity leave and do not return), and then closed its restaurant. The first applicant did not tender any evidence supporting her claim that Sahota closed its restaurant shortly after 23 September 2015.

17. In circumstances where the Tribunal has not heard evidence from Sahota, and there is no written evidence supporting the first applicant’s claims of systematic poor treatment followed by effective dismissal and closure, the Tribunal confronts some difficulty assessing the first applicant’s claims.

18. In the circumstances, the Tribunal is prepared to accept that Sahota engaged in some level of poor treatment of the first applicant for want only of any evidence contradicting the first applicant’s description of her treatment.

19. The Tribunal is not able to determine the specific reason for the first applicant’s departure from Sahota due to the paucity of evidence. But the Tribunal is prepared to find that whatever the reason for the first applicant’s departure, she did not leave voluntarily. The first applicant plainly was prepared to remain working for Sahota despite her claims of poor treatment. That supports a finding that she did not leave voluntarily, and she ceased work there because in the end events overtook her and she had little choice.

20. Accordingly, the Tribunal is prepared to weigh this consideration in the first applicant’s favour but that weight is limited because of the lack of evidence apart from the first applicant’s say so.

    Extent of compliance with visa conditions and co-operation with the department

21. As set out in paragraph 25 above, the first applicant breached condition 8107(3)(b) of her visa by ceasing work with Sahota.

22. The second applicant gave evidence that during 2016 she applicant trialled with ‘Paul’ as a chef in his Bendigo restaurant/café. It is not clear whether the first applicant trialled with Paul before her visa was cancelled on 19 April 2016. If so, the first applicant might have breached condition 8107(3)(a)(ii) of her visa by working for an employer who was not her approved standard business sponsor. If the first applicant trialled with ‘Paul’ after she obtained her bridging visa with work rights she would not have committed any condition breach. In the end, the Tribunal does not have sufficient evidence before it to find that the first applicant was responsible for any visa condition breach beyond the first Sahota breach, and the Tribunal does not do so.

23. To the contrary, the Tribunal considers the first applicant’s trial with Paul to stand in her favour. It demonstrates the lengths to which she was prepared to go to locate a new nominating employer to preserve the purpose of her stay in Australia under a 457 visa. But the weight the Tribunal applies here is outweighed by the applicant’s failure to locate a new nominating employer and preserve the purpose of her visa. 

24. There is no evidence before the Tribunal that the first applicant has not co-operated with the department. That stands to her favour as well.

    Hardship caused to the first applicant and her family

25. The first and second applicants pointed to three elements of hardship if the first applicant’s visa remained cancelled.

26. First, the first applicant said that if her visa remained cancelled she would need to return to India with her family. She would need to re-adjust to life in India, and she could not give her daughter the future she could have had in Australia. The Tribunal accepts the first applicant will need to re-adjust to life in India, and that the third applicant’s future would be brighter in Australia than in India. But the Tribunal places limited weight on those matters. As explained to the first applicant during the hearing, a 457 visa is a temporary one that does not in itself entitle the holder to a future in Australia. Failing some action by the first applicant to extend her stay in Australia, she was always going to be required to return to India with her family and raise her daughter there once her 457 visa expired. In any event, the first applicant’s visa, had it not been cancelled, would shortly have expired (24 December 2017). The first applicant has remained in Australia for almost (if not all) the life of the visa, which was what she told the Tribunal was one of the outcomes she wanted from this review. In those circumstances (and subject to the matters set out in paragraphs 51and 52 below), little hardship can follow only by reason of the first applicant having to return to India with her family.

27. Second, the first applicant said that Sahota visited a wrong on her and she wanted to stay in Australia for the life of her visa to remedy that wrong. The Tribunal does not consider that to be relevant hardship. As set out in paragraphs 29 to 36 above, the first applicant has had a reasonable time to locate another nominating employer so she could stay in Australia on a 457 visa but she was not able to do so. Further, as things have turned out, she will remain in Australia for the life of her visa anyway.

28. Third, the second applicant said that if the first applicant is required to return to India, she will not be able to pay for the treatment necessary to recover from her accident, which cost the TAC is now meeting. The Tribunal accepts that having to return to India in circumstances where the first applicant was still recovering from injuries caused by an accident beyond her control, and where should could not pay afford to pay for her ongoing treatment, constitutes relevant and substantial hardship. Ordinarily, the Tribunal would give this consideration substantial weight. But in the circumstances of this review, the weight is reduced substantially.

29. As explained to the first applicant during the hearing, the Tribunal does not have the power to extend her stay in Australia beyond 24 December 2017, even if it considered that equity to the first applicant required her being allowed to remain in Australia to complete her course of treatment at the TAC’s expense. The Tribunal urged the first applicant to seek advice about what other visas she could seek that would allow her to complete her treatment in Australia. For example, the first applicant could always have applied for (and perhaps can still apply) for a Class UB medical treatment visa notwithstanding that her 457 visa was cancelled. That class of visa is excluded from the operation of s. 48(1)(b)(ii) of the Act which prohibits applications for visas onshore after a non-citizen has had a visa cancelled. The matter is taken up further below. For those reasons, the weight the Tribunal can give the medical grounds reduces substantially. The Tribunal does not consider it appropriate to keep a 457 visa on foot for the primary reason of the first applicant continuing to receive medical treatment. There are other visas potentially available to the first applicant that are more appropriate for that purpose.

    Whether there are others whose visas would or may be cancelled under s. 140

30. The visas of the second and third applicants were cancelled consequentially because of the cancellation of the first applicant’s visa. There is no evidence that the cancellation of the first applicant’s visa would result in a breakup of the family. Accordingly, this consideration carries little weight.

    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

31. The first applicant is currently on a bridging visa E with work rights because of this review process. In the absence of the first applicant making another successful visa application, or the Minister granting a visa, ultimately she will not have authority to remain in Australia. If that is the case, the first applicant and her family will have the opportunity to depart Australia. Whilst their continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

32. Section 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 first applicant whilst onshore. The Tribunal has taken that potential limitation on the first applicant’s future application actions into account.

33. But as alluded to in paragraphs 34, 51, and 52 above, r. 2.12(ca) of the Regulations exempts from the operation of s. 48 of the Act a Class UB medical visa. Accordingly, the first applicant can apply for that visa and seek to stay in Australia to complete her medical treatment even if her 457 visa remains cancelled. That ameliorates somewhat the effect of s. 48 on the first applicant. However, the Tribunal has still had regard to the effect of the .s 48 limitation on the first applicant’s future options in relation to other visas.

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

34. In considering whether to exercise its discretion to cancel the first 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).

35. Before the hearing, there was nothing in the documents before the Tribunal that would have supported an argument that Australia would offend its international obligations if the first applicant returned to India with her family. The first applicant did not say anything at the hearing, and did not submit any written evidence, that would change that position. The assertion that the third applicant’s future in Australia is brighter than it would be in India does not place Australia in breach of its treaty obligations only by reason of the cancellation decision.

    Conclusion

36. The Tribunal places substantial weight on the purpose of the first applicant’s proposed further stay in Australia not being for a 457-visa purpose. The first applicant wants to stay largely to complete her medical treatment and improve her future prospects in India and those of her daughter (although this was conflated with evidence about Australia being better for her daughter). A stay in Australia for those purposes is not consistent with the purpose of a 457 visa. The first applicant did say that she was prepared to work if she could find another employer prepared to sponsor her but that was not the focus on her evidence in her reasons for wanting to remain in Australia.

1. The Tribunal has considered carefully the first applicant’s wish to stay in Australia to complete her medical treatment at the TAC’s expense. In the end though, the first applicant will need to apply for a visa that would facilitate a stay in Australia for medical treatment (such as Class UB medical treatment visa) because her 457 visa would have expired before her medical treatment is completed. Section 48 will not prevent the first applicant applying and being granted that visa if the cancellation decision remains undisturbed. Further, as things have turned out, the first applicant will remain in Australia for almost (if not all) the life of her 457 visa and will presumably have received medical treatment over that time.

2. The Tribunal has weighed various other matters in the first applicant’s favour but it finds that those matters do not outweigh the extent to which the purpose of the first applicant’s proposed stay in Australia is now foreign to the purpose of a 457 visa.

3. Having regard to all the evidence before it, and balancing the matters both in favour of setting aside the delegate’s decision and affirming it, the Tribunal concludes that the correct and preferable exercise of its discretion favours affirming the delegate’s decision to cancel the first applicant’s 457 visa.

   Decision

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

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

   L. Hawas
   Senior Member