Mohd (Migration)

Mohd (Migration) [2019] AATA 3734 (29 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Fazal Ahmed Mohd
Mrs Mahejabeen Heena
Miss Maira Fazal
CASE NUMBER:  1827452
HOME AFFAIRS REFERENCE(S):           BCC2018/4039177
MEMBER:Alison Mercer
DATE:29 May 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 May 2019 at 12:40pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – applicant ceased employment with the sponsor over 90 days – workplace dispute – no approved nomination – applicant sought further study enrolments – visa would have already expired – decision under review affirmed
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2 cls 457.223; 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

This is an application for review of a decision dated 13 September 2018 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).
The delegate cancelled the visa under s.116(1)(b) on the basis that he found that the applicant had breached a condition of his subclass 457 visa. The applicant’s subclass 457 visa was subject to condition 8107, which (amongst other things) required that, if the holder ceased employment with his/her sponsoring employer, then the period during which the holder ceased employment must not exceed 90 days (8107(3)(b)). The delegate found that the applicant had been sponsored by RSG (ABC) Pty Ltd to work as a cook, but that that employer had notified the Department in writing that the applicant ceased employment there on 21 September 2017. The Department sent a Notice of Intention to Consider Cancellation (NOICC) to the applicant on 28 August 2018, on the basis that it appeared that he had ceased employment with RSG (ABC) Pty Ltd for more than 90 days by that time. The delegate considered the applicant’s response of 3 September 2018, in which he claimed that he left his employment due to a falling out, had actively been seeking new employment since then and had now applied for a subclass 500 (Student) visa to study Business Management. However, the delegate found that the relevant discretionary factors in favour of cancelling the applicant’s subclass 457 visa outweighed those in favour of not cancelling it.
The Tribunal received a review application from the applicants on 24 September 2018, which was accompanied by a copy of the delegate’s decision, copies of the applicant’s Indian and Australian educational qualifications, evidence of his and his family’s Australian health insurance, a confirmation of enrolment (CoE) for the applicant in a Diploma of Project Management at the Peach Institute, to commence on 24 September and finish on 22 September 2019, and a Department letter confirming that the applicant was granted a subclass 457 visa on 25 November 2014 as a Cook, valid until 25 November 2018.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
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.
The applicants appeared before the Tribunal on 9 April 2018 to give evidence and present arguments.
Following the hearing, the Tribunal received additional material from the applicant, being a letter from his current employer.
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
Departmental history
Visa grant
The Department’s records indicate that the applicant was granted a subclass 457 visa on 25 November 2014, valid until 25 November 2018. It was based on an approved nomination of him for the occupation of Cook made by an approved standard business sponsor, RSG ABC Pty Ltd.
Notice of Intention to Consider Cancellation
On 28 August 2018, the Department wrote to the applicant to advise him that there appeared to be a ground for cancellation of his visa under s.116(1)(b) of the Act; namely, that it appeared that he had breached condition 8107(3) of his visa. The letter stated that the standard RSB ABC Pty Ltd, whose nomination was approved on 6 November 2014. The letter further stated that the Department had received written notification from RSG ABC Pty Ltd that the applicant ceased employment there effective 21 September 2017. The applicant was advised that this indicated that he was in breach of condition 8107(3)(b) of his visa because he appeared to have ceased employment with his sponsor for a period exceeding 90 consecutive days. If this was correct, then this was grounds for cancellation of the applicant’s visa pursuant to s.116(1)(b). The applicant was invited to respond within 5 working days, including the matters to be taken into account by the delegate in considering whether to cancel the visa or not, such as:
·the purpose of the applicant’s travel to and stay in Australia;
·the extent of his compliance with any conditions subject to which his visa was granted;
·the degree of hardship that might be caused to him and/or any family members if his visa was cancelled;
·his past and present behaviour towards the Department;
·the legal consequences of a cancellation decision; and
·any other matters.
Applicant’s response
The applicant provided a response by email on 3 September 2018, in which he made the following points (in summary):
·he completed a Bachelor of Science in Medical Laboratory Technology in India and then came to Australia to undertake further study by enrolling in an International Business Management Course at Melbourne Institute of Technology (MIT). However, although he commenced this course, he was not able to cope with it. As he had loved to cook since he was a child, he changed courses and (with the support of friends and family) completed a Certificate III and IV and a Diploma of Hospitality at the Technical Institute of Victoria;
·he then applied for a subclass 457 visa based on these qualifications, sponsored as a Cook by RSG ABC Pty Ltd. He was granted the visa and commenced there on 25 November 2014, finishing on 21 September 2017. There was a miscommunication between him and the owner and he was not able to continue in that position. He tried a lot to convince the owner of the business but was unable to do so. After that, the applicant went to a migration agent but was not able to get a proper reply, so was a bit confused. He was not able to make any decision. He felt a lot of tension because he had responsibility for his family;
·in the meantime, he started to apply for other restaurant jobs but was not able to find another employer willing to sponsor him as a Cook. That was not reason that he was not able to meet the requirements for permanent residence. However, at present, his goal was not permanent residence but to complete the course that he was currently enrolled in and then return to India to start his career. From his Australian job, he already had enough skills and knowledge which he could apply in India;
·right now, he was stable and had decided to study a Diploma of Project Management at Peach Institute, on completion of which he would definitely return to India. There were lots of opportunities in India. With the work experience and guidance he received from his father, he would have a chance to work and build his own team and use his skills to get the best out of the business; and
·he would get a chance to work in big Indian restaurants such as the Oberoi Rajvilas, the India at Big Bend, Taj Rambagh Palace, the Imperial New Delhi and the Leela Palace Udaipur, earning a salary of 6 to 8 lakh per annum. His parents were in India, so he definitely intended to return there.
Department decision
As noted above, the delegate made a decision to cancel the applicant’s visa on 13 September 2018. In doing so, the delegate found that the ground for cancellation was made out, as it was not disputed that the applicant ceased work for his original nominating employer on 21 September 2017, and had not yet been the subject of a new approved nomination by another employer. The delegate was therefore satisfied that he had ceased work in the position in which he was originally nominated and with his original sponsoring employer for more than 90 consecutive days, in breach of condition 8107(3)(b). The delegate found that a ground for cancellation was established under s.116(1)(b) of the Act.
The delegate then considered whether or not to exercise the discretion to cancel the applicant’s visa. In deciding to cancel it, the delegate took into account the following factors:
·as the applicant’s original employment was terminated on 21 September 2017, it appeared that he was no longer in Australia in accordance with the original purpose of his subclass 457 visa. The fact that he now wished to undertake further study in Australia was not relevant to this visa. Moreover, it was noted that he had already lodged a subclass 500 (Student) visa for this purpose, after he received the NOICC. Cancellation of the subclass 457 visa would not prevent him from being granted a new student visa, provided he met all of the relevant criteria for that visa. In the meantime, the applicant would hold a bridging visa A for 28 days following the cancellation of his subclass 457 visa, during which time he would be able to apply for a bridging visa E to remain on until his student visa application was determined;
·it was acknowledged that the applicant had not breached any other conditions, but it was also noted that more than 11 months had elapsed since the applicant ceased his original employment and as such, his non-compliance with the 90 day period set out in condition 8107(3)(b) was considered significant;
·due to the consequential cancellation provisions, it was accepted that the applicant’s son would not be separated from his parents and they would return to India together. The delegate noted that the applicant’s wife and daughter held their subclass 457 visas solely has dependants and did not give this factor significant weight. While he accepted that cancellation might result in a level of hardship for the applicant and his family should they depart Australia, he did not consider that they would be significantly disadvantaged by this or that this provided a strong reason not to cancel the visa;
·the delegate further noted that the applicants would be eligible to apply for a bridging visa E if their visas were cancelled, which would allow them to remain lawfully in Australia to finalise their affairs. However, he acknowledged that if the visa were cancelled, the applicants would become unlawful non-citizens and might be liable to detention under s.189 of the Act and removal under s.198 if they did not voluntarily depart, and that they would also be subject to s.48 of the Act, which limited their options for applying for a further visa in Australia. The delegate gave some weight to these factors; and
·as such, and after considering all of the applicant’s claims in their entirety (including the fact that there was no evidence that cancelling the visa would breach any of Australia’s treaty obligations, including the Convention on the Rights Of the Child, or CROC), the delegate decided the reasons not to cancel the visa did not outweigh those in favour of cancellation.
Tribunal history
Tribunal review application
The applicants lodged an application for review of the above decision with the Tribunal on 24 September 2018.
On 21 February 2019, the Tribunal wrote to the applicants to invite them to attend a hearing on 9 April 2019. They were requested to provide any written submissions and/or documents in support of the case to the Tribunal 1 week prior to the hearing.
Hearing of 9 April 2019
The applicant told the Tribunal that he came to Australia in 2012 to study International Business Management at Melbourne Institute of Technology. In India, he had completed a Bachelor of Science degree in India and worked as a laboratory technician there. His idea was to complete business studies in Australia and return to India to open his own diagnostic centre. However, he struggled with the MIT course due to language issues and unfamiliarity with the subject matter. He sought advice from an agent and from his friends, and, as he was already working part time as a kitchen hand, he decided to enrol in a Commercial Cookery/Hospitality course. He then completed a Certificate III and IV in Commercial Cookery while continuing to work for the same employer, RSG ABC Pty Ltd (trading as the Asian Beer Café). He worked hard and progressed from kitchen hand to Cook to Sous Chef to Chef while studying. His boss there was keen to sponsor him for a subclass 457 visa once he completed his Certificate IV. This was successful and he continued working there as a Chef.
The applicant said that his wife came to join him in Australia in December 2015. They were living in Braybrook at that time, but they moved to Windsor after the applicant was held up at gunpoint and had his bike stolen. After moving suburbs, the applicant commenced as a Chef at the Shaw Davies Slum Hotel in Carlton, which was also owned and operated by RSG ABC Pty Ltd. The applicant said that while he was there, he was falsely accused of harassing one of the female staff, with whom he was friends. The applicant attributed the allegations to malicious colleagues who were jealous of his progress, and maintained that the alleged victim told him personally that she had not lodged a complaint. The applicant said that he felt that his employment there was untenable and therefore advised his employer that he would resign. He asked for, and received, a termination letter and entitlements. He agreed that his last day working for RSG ABC Pty Ltd was 13 September 2017. The applicant said that about 3 months before this occurred, he had lodged a subclass 186 (Employer Nomination Scheme) permanent residence visa application, with RSG ABC Pty Ltd as his nominator. After his employment was terminated, he spoke with the company’s migration lawyer, Chris, and asked what he should do about this. The applicant said that Chris told him to just wait until his permanent residence was approved. Chris did not tell the applicant that by doing so, he would be in breach of condition 8107. The applicant said that he waited for some months but heard nothing, so he contacted the Department himself and was told that the visa application was now being considered. Then the Department rang his employer, who advised that he ceased work with them in September 2017. Shortly after this, the Department sent him the NOICC.
In response to the Tribunal’s query, the applicant said that he did not read the subclass 457 visa grant letter closely and was not aware that he was subject to condition 8107. He maintained that, had he known, he would have sought another employer to sponsor him, or he could have lodged a subclass 189 Skilled visa application in his own right. However, he understood from Chris that he would still be able to get a subclass 186 visa. The Tribunal queried this, noting that he would have surely understood that this was only possible if he was still employed by RSG ABC Pty Ltd, and he knew that he ceased employment there in September 2017. The applicant said that he relied on the agent’s advice that he could still get permanent residence through the subclass 186 visa, despite ceasing employment with his sponsoring employer.
In relation to his current circumstances, the applicant said that he has an outstanding loan to the Commonwealth Bank. He took out a personal loan of $50,000 to cover his visa application costs and living expenses, but then the cancellation of his subclass 457 visa meant that neither he nor his wife could work until they lodged the review application and were granted bridging visa Es with limited work rights (20 hours per week). The applicant said that he had to rely on friends to help him with the loan. He estimated that he still owed $48,000 and had limited means, working 20 hours per week, to make repayments. The applicant said that he had negotiated with the bank that his Comminsure policy would pay about $10,000 off the loan but he was still responsible for repaying the balance of approximately $38,000, plus $1,000 in credit card debt. The applicant said that he and his wife were both working 20 hours per fortnight and earning about $3,000 per month, but this had to cover their rent of $1,300 per month, their living expenses, utilities and loan repayments. The applicant said that he continues to work as a Cook, while his wife does hand-sewing work for a fashion company. They work different shifts and manage to care for their daughter between them without paying for child care. Their daughter is now 2 years old.
The applicant said that he had been working for a hospitality business group which ran several different establishments. He had been working at Dosa Hut, and he was now working at a newer venue, Melba Social, in Kensington. The applicant said that his employers were very pleased with his work there and were willing to sponsor him, if he was able to successfully resolve his present circumstances.
The Tribunal asked the applicant about his statement to the Department in response to the NOICC indicating that he had enrolled in a Diploma of Project Management and applied for a student visa to complete this course. The applicant said that his student visa application was refused as the Department did not consider that he genuinely intended to stay in Australia temporarily as a student, given his past migration history and study. The applicant conceded that he did not know why he chose that course, as he would have been better off enrolling in a Diploma of Hospitality Management (which he now did want to do) but said that he was not thinking straight at the time due to the stress of his situation. The applicant said that he was under major stress as he was the only son in his family and was therefore financially responsible not only for his wife and daughter, but his parents in India. His mother is a housewife and his father is retired. In addition, although his 2 sisters in India are married, 1 of them has required some financial assistance from him due to a failed business venture by her husband. The applicant said that his wife’s family is also in India, and they had no financial capacity to assist as they were in similar circumstances. The applicant confirmed that he and his wife are alone in Australia with their daughter.
In response to the Tribunal’s query, the applicant said that if he had to return to India with his family, he would not be able to earn the same kind of wages as a Cook as he could in Australia. He maintained that if he were to return and work as a laboratory technician, he would earn even less. The applicant said that his wife has a Masters degree in IT but had little work experience in this field in India, and none in Australia, so it would be hard for her to obtain a good paying job if they went back to India.

When asked if there was any other harm he feared if the family returned to India, the applicant said that he feared the financial consequences only. He confirmed that if they had to leave, he and his wife and his daughter would all relocate together.
The applicant said that due to the stressful circumstances, he had ended up in the Alfred Hospital for a day in either late 2017 or early 2018, with heart palpitations. He was told he had had a minor stroke and was counselled to worry less, stop smoking and lose weight. The applicant said that he was not required to take ongoing medication for any of these problems but was trying to manage his stress better, despite it being difficult for him to do so. The financial pressure was enormous, and the cancellation of their visas meant that neither he nor his wife could return to India for a visit. Both sets of parents want them to do so, so that they can see their granddaughter. The applicant said that this was hard on the whole extended family.
The Tribunal raised with the applicant one of its major concerns about setting aside the Department’s cancellation decision, being the fact that the applicant’s subclass 457 would have already expired (on 24 November 2018), had it not been cancelled earlier by the Department. The Tribunal indicated that it therefore appeared to be of no utility to the applicant to overturn the cancellation as the visa could not be restored to him. The applicant said that he understood this now, and was frustrated as he felt that if he had been better informed earlier, he could have applied for another visa before his subclass 457 visa was cancelled. The applicant said that he has now received advice from a new migration agent, and believed that he would be able to make a subclass 489 visa later this year, offshore, but that he needed to work for longer as a Cook in Australia to be entitled to the maximum points for such as an application. He estimated he would have enough Australian work experience if he worked until July or August 2019. He said that he intended to request the Department to grant him permission to work more than 20 hours per week, as this would assist him and allow him to pay off the loan quicker, but he did not know whether the Department would agree to this.
The Tribunal indicated that it would consider the discretionary factors carefully and agreed to defer its decision until the applicant provided a reference letter from his current employers.
Post hearing submissions
As noted above, the Tribunal received a copy of a letter dated 12 April 2019 from one of the directors of Melba Social, stating that the applicant had worked there for the last 3 months, 20 hours per week, and that they liked his work ethic and would like to try to continue to employ him.
LEGAL CONSIDERATIONS, FINDINGS AND DECISION
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?
s.116(1)(b) - non-compliance with conditions
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. In this instance condition 8107 attached to the applicant’s visa. Subparagraph (3) of this condition provides as follows [Tribunal’s emphasis]:
[
[8107] (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):
(a) the holder:
(i) must work only in the occupation listed in the most recently approved nomination for the holder; and
(ii) unless the circumstances in subclause (3A) apply:
(A) must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or
(B) if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor or an associated entity of the sponsor; or
(C) if the sponsor is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor; and
(aa) the holder must commence that work within 90 days after the holder’s arrival in Australia; and
(b) if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days; and
(c) if the holder is required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, in the location where the holder’s position is situated—the holder must:

(i) hold the licence, registration or membership; and

(ii) comply with each condition or requirement to which the licence, registration or membership is subject.
…
The Department’s records indicate that the applicant was granted a subclass 457 visa on 25 November 2014 that was valid until 25 November 2018 and that was subject to (amongst others) condition 8017. The Tribunal is further satisfied that this visa was granted to him (and to his dependants, being his wife and daughter) on the basis that he was the subject of an approved nomination as a Cook by RSG ABC Pty Ltd, an approved standard business sponsor.
The applicant did not dispute that he ceased work for RSG ABC Pty Ltd on 21 September 2017, and that more than 90 consecutive days elapsed without him securing another approved nomination by an approved standard business sponsor.
From the available evidence in the Department’s records, the Tribunal is satisfied that RSG ABC Pty Ltd was the original approved standard business sponsor who successfully nominated the applicant as a Cook. It is further satisfied that, at the time of his visa cancellation, the applicant was not the subject of an approved nomination by an approved standard business sponsor. This remains the case to date.
Accordingly, the Tribunal finds that the applicant has breached condition 8107(3)(b), which constitutes a ground for cancellation pursuant to s.116(1)(b) of the Act.
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
There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.
Purpose of the visa holder’s travel to and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia
As discussed with, and acknowledged by, the applicant at hearing, the subclass 457 ((Temporary Work) Skilled) visa is a temporary visa, the purpose of which is to work for a standard business sponsor in a position approved through the nomination process. There is no other permitted purpose for holding a 457 visa.
The applicant's original approved employment has ceased. Moreover, the cessation date of the subclass 457 visa had passed – had it not been cancelled, it would in any case have ceased on 25 November 2018.
Although the applicant is currently employed as a Cook in another venue (Melba Social), this employer has to date not lodged any nomination in respect of the applicant, nor has it indicated that it imminently intends to do so, nor that it is approved to do so as a sponsor.
Under these circumstances, the Tribunal does not consider this employment to be a strong favourable circumstance in the assessment of whether or not the applicant’s visa should be cancelled.
The applicant has also argued that he and his family would struggle to re-establish themselves in India, and that they would be affected financially and emotionally if they had to leave, given the number of years they have lived in Australia. The Tribunal notes, however, that all of the applicant’s family, and his wife’s family, are in India. It therefore does not give this consideration great weight.
The Tribunal has also considered the applicant’s evidence that by July or August 2019, he expected to have accumulated sufficient Australian work experience as a Cook to be able to successfully apply for a subclass 489 visa offshore. The Tribunal acknowledges that the applicant wishes to pursue this option as a means of returning to Australia with his family, in the event that this review application is unsuccessful. However, the possibility of another future visa option for the applicant – unconnected to the visa which is the subject of this review - is not a factor that the Tribunal gives great weight to, as the outcome (and indeed the actual lodgment) of such a future application is necessarily speculative at this time.
The Tribunal acknowledges the applicant’s evidence that he had been in Australia since 2012 as a student and then a sponsored employee, and that he remains employed in his field with another employer presently. It also acknowledges that he ultimately sought to find another sponsor and nominator after resigning from his original employer. It accepts that, in these circumstances, the applicant wishes to remain in Australia with his wife and daughter.
In the Tribunal’s view, the subclass 457 visa was a temporary visa the purpose of which is to enable Australian employers to fill skills shortages, and it is not a guaranteed pathway to permanent residence or long term temporary residence (the same remains true of its successor, the subclass 482 visa). The Tribunal does not consider the wish of the applicant to remain here for a longer time, or if possible, permanently, to be a compelling reason in and of itself not to cancel the applicant’s subclass 457 visa, given that it is a temporary visa at best, and is inextricably linked to him being successfully sponsored and nominated for employment by an Australian employer. However, that has not occurred and the Tribunal considers that his present circumstances are not in line with the purpose of the subclass 457 visa program.
Extent of the applicant’s compliance with his visa conditions
There is no evidence before the Tribunal to suggest that the applicant has not complied with the conditions of his previous student or bridging visas, or of any other conditions relating to his subclass 457 visa apart from condition 8107.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
As noted above, the applicant indicated that he and his family would suffer hardship if they had to depart Australia and return to India as they would be going into an economically uncertain future and would be leaving their community and employment in Australia. In particular, the applicant pointed out that he has an outstanding loan from the Commonwealth Bank of approximately $38,000 which he must repay. The applicant and his wife also expressed concern about the effect on their daughter, who is now aged almost 2 years old, of having to leave Australia.
The Tribunal accepts that the applicant and his family would suffer some financial, psychological and/or emotional hardship if they had to depart Australia, but does not consider that the degree of financial, psychological and emotional hardship that they would face would be insurmountable as they would returning to family in India and the Tribunal is not satisfied that the applicant would not be able to find any employment or business opportunities there to support himself and continue to make loan repayments to the Commonwealth Bank, although it acknowledges that this might not be at the level that he and his family has experienced in Australia.
The Tribunal does not consider that the applicant’s daughter would struggle to reintegrate into Indian society as she is yet to commence kindergarten or school, and will be supported by her immediate and extended family there. It therefore does not give this factor significant weight as a factor weighing against cancellation of the visa.
The Tribunal also notes that the applicant has had some apparently stress-related health issues since coming to Australia, but that these appear to be currently under control. There is no evidence before the Tribunal to suggest that the applicant would not be able to access medical treatment for these if required in India. The Tribunal therefore does not give this factor significant weight as a factor weighing against cancellation of the visa.
Circumstances in which the cancellation arose
The Tribunal notes the applicant’s evidence that he resigned his employment with his sponsoring employer, RSG ABC Pty Ltd, after what he claimed were false allegations made against him by disgruntled colleagues. He did not seek alternative employment sponsorship immediately, as he maintained that he did not know that his subclass 457 visa was subject to condition 8107, and that he had been misadvised by a migration agent for his employer that he could nevertheless be granted a subclass 186 permanent residence visa despite no longer working for his nominating employer.
The applicant denied that he knew condition 8107 meant he had 90 days to find another employer and maintained that he would have made efforts to do so, or to lodge an independent skilled visa, had he understood this. .
The Tribunal has considered the applicant’s account carefully. It found these aspects of his evidence to lack credibility. The terms of his subclass 457 visa (including a description of condition 8107) were set out in the grant letter that was sent to him. On his own evidence, he did not check with the Department as to the consequences of resigning from the employer who had nominated him for his subclass 457 and then 186 visas, before doing so. The applicant maintained that he relied on inaccurate advice from the employer’s migration agent that he could still be granted a subclass 186 visa despite no longer working for his nominating employer, and that this was the reason he did not seek alternative employment and sponsorship earlier. However, the Tribunal considers this to be implausible: it does not accept that the applicant would have been unaware that ceasing employment with his nominating employer would not affect his entitlement to the subclass 457 visa he held at the time, nor to his pending permanent residence application. The Tribunal also finds it implausible that a migration agent representing the applicant’s employer, from whom the applicant had just resigned, would advise the applicant that he could nevertheless still obtain permanent residence by means of the subclass 186 visa application.
The Tribunal considers that the circumstances in which the breach arose involved a deliberate course of action by the applicant to cease employment with his nominating employer. It acknowledges that he ultimately secured employment with an Australian employer in his original role of Cook, but notes that this employment is not presently the subject of a new temporary or permanent employer nomination, and there is no realistic indication that it is likely to be in the near future. These factors weigh in favour of cancellation, in the Tribunal’s view.
Past and present conduct by the applicant towards the Department
The Tribunal accepts that the applicant has been cooperative with the Department and this weighs against cancellation of his visa.
If breach relates to breach of r.2.43(1)(la)…
This factor is not applicable in the present case.
Whether there are mandatory legal consequences, such as whether cancellation would result in the applicant becoming 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 applicant from making a valid visa application without the Minister’s intervention
While the Tribunal accepts that cancellation of a visa would normally result in a person becoming unlawful and subject to detention, the Tribunal is satisfied that the applicant has applied for, and been granted, bridging visas which are valid until the outcome of the Tribunal review. Accordingly, it does not accept that indefinite detention is a possible consequence of cancellation, as a bridging visa would continue to be available to the applicant if she needed this to make arrangements to depart, or to lodge a judicial review application, in the event that the Tribunal review is unsuccessful.
The Tribunal accepts that, if the visa cancellation is affirmed, the applicant will be subject to s.48 of the Act, which significantly limits what future onshore applications he may be able to make (though in the Tribunal’s view, it does not affect his ability to apply for a visa offshore in future, subject to him being able to meet the substantive criteria for that visa).
Whether there would be consequential cancellations pursuant to s.140 of the Act
The Tribunal is satisfied that the applicant’s wife and daughter would be subject to consequential cancellation of their subclass 457 visas pursuant to s.140 of the Act if the decision to cancel the applicant’s subclass 457 visa is affirmed.
Whether any international obligations would be breached as a result of the cancellation
The applicant did not raise any specific international obligations that she believed would be breached as the result of the cancellation and there is nothing before the Tribunal to indicate that cancellation would result in Australia breaching any of its international obligations.
Any other relevant matter
The Tribunal considers that a stay in Australia on a temporary visa such as the 457 visa is, as the length of visa grant suggests, a temporary stay, which by its nature will come to an end. The natural consequence of a temporary stay is a departure from Australia, which is something which should be anticipated by the holder of a temporary visa.
Significantly, from the Tribunal’s point of view, the applicant’s subclass 457 visa would have expired on 25 November 2018 (had it not been cancelled earlier) – a date that is now almost 6 months ago as at the time of the Tribunal’s decision. Thus, the value of setting aside the Department’s cancellation is in the Tribunal’s view redundant, since there is no longer a visa to reinstate.
The Tribunal considers this to be a significant factor weighing against setting aside the cancellation.
As discussed above, the Tribunal has sympathy for the applicant’s circumstances, in that it accepts he has established a life here over approximately 7 years for himself and, latterly his family, that he has now found new employment in his originally nominated occupation and that he has an outstanding loan to the Commonwealth Bank in Australia. Moreover, the Tribunal acknowledges the fact that his current employer has stated that it wishes to retain the applicant’s services.
However, considering the circumstances as a whole, in particular the fact that the cancelled visa would have already expired, the Tribunal concludes that the visa should be cancelled.
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.
Alison Mercer
Member

[2019] AATA 3734

29 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction