Naresh (Migration)

[2021] AATA 2205

Naresh (Migration) [2021] AATA 2205 (5 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr  Naresh Naresh
Mrs Richa Richa
Miss Shanaya Khanchi

CASE NUMBER:  2003704

HOME AFFAIRS REFERENCE(S):          BCC2019/2564012

MEMBER:L. Hawas

DATE:5 May 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the first applicant’s Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa.

The Tribunal has no jurisdiction with respect to the second and third applicants.

Statement made on 5 May 2021 at 4:42 pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – consideration of discretion – purpose of a Subclass 457 visa – inability to secure a new nomination – COVID-19 related business interruptions – extent of compliance with visa conditions – “dob in” information – validity of s.376 certificate – circumstances beyond the applicant’s control – best interest of the child – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348, 376

Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

STATEMENT OF DECISION AND REASONS

Introduction

1. The first applicant (hereinafter referred to as the applicant) is a 39 year old man from India.[1] He currently lives in Australia with his wife (who is 30 years old) and his young daughter (who is 4 years old).[2] He came to Australia in 2008 on a student visa.[3] On 17 August 2016, the Department of Immigration and Border Protection granted the applicant a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa for four years to 17 August 2020.[4] By written decision dated 26 February 2020, a delegate of the Minister for the Department of Home Affairs cancelled the applicant’s visa.

   [1] The applicant was born on 17 February 1982. See delegate’s decision dated 26 February 2020 at p. 1. The applicant confirmed his date of birth at the hearing on 21 December 2020.

   [2] Applicant’s oral evidence at the hearing and delegate’s decision at p. 5.

   [3] Applicant’s oral evidence at the hearing.

   [4] Delegate’s decision at p. 1.

2. The delegate cancelled the applicant’s visa under s.116(1)(b) of the Migration Act 1958 (Act) on the ground that he did not comply with condition 8107(3)(b) of his visa. That condition provided that if the applicant ceased employment with his sponsoring employer the period during which the applicant ceases employment must not exceed 90 consecutive days. The delegate found that the applicant ceased employment with his sponsoring employer effective on 29 April 2019 and that he ceased that employment for more than 90 consecutive days in breach of condition 8107(3)(b). [5] After considering the matters relevant to the delegate’s discretion to cancel the delegate decided to cancel the applicant’s visa.

   [5] Delegate’s decision at pages 2 and 3.         

3. The applicants have now applied to this Tribunal for a review of that decision. The applicant gave the Tribunal a copy of the delegate’s decision at the time he applied for this review.

4. 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 applicant’s visa. The visas of the second and third applicants were automatically cancelled as a consequence of the applicant’s visa cancellation. It follows that the visas of the second and third applicants were not cancelled by decision but by force of the operation of s.140(1) of the Act. The cancellation of those visas was self-executing on the cancellation of the applicant’s visa.[6] As no decision was involved in the cancellation of the visas of the second and third applicant under s.140(1), the Tribunal has no jurisdiction with respect to them.

   [6] See Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96.

5. Accordingly, in this review, the Tribunal must decide whether the ground for cancelling the applicant’s visa is made out, and if so, whether the visa should be cancelled.  

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

Procedural matters

1. The applicant appeared before the Tribunal on 21 December 2020 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

2. The hearing was held during the COVID-19 pandemic. The Tribunal exercised its discretion to hold the hearing by video conference (Microsoft Teams). The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick. The hearing of the matter would have been delayed if it was not to be conducted by video conference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments at the hearing.

3. On 16 January and 5 February 2021 (after the hearing), the Tribunal received written submissions with attachments and other documents from the applicant’s representative (post-hearing submissions). The Tribunal has considered all the documents the applicant submitted to the Tribunal after the hearing.

Is the ground to cancel the applicant’s visa made out?

1. The Minister or the Tribunal (on review) may cancel a visa under s.116(1)(b) of the Act if satisfied that the visa-holder has not complied with a condition of the visa.

2. Here, the applicant’s visa contained condition 8107(3)(b), which provided that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.[7]

   [7] Delegate’s decision pages 1and 2 and the department’s records on the Integrated Client Services Environment (ICSE).

3. The Tribunal has the following evidence before it relevant to whether the applicant has not complied with condition 8107(3)(b) and whether the ground to cancel the applicant’s visa under s. 116(1)(b) has been made out:

   (a)The applicant was granted his 457 visa on 17 August 2016. The term of the visa was four years. Had the delegate not cancelled the visa, the term of the visa would have expired on 17 August 2020.[8] Come the time of the visa cancellation, the standard business sponsor who had nominated the applicant for that visa was ATOP Property Services Pty Ltd (ATOP);[9]

   [8] Delegate’s decision at p. 1.

   [9] Delegate’s decision at p. 2.

   (b)The applicant was originally nominated for his 457 visa by L&G Catering Pty Ltd (L&G). On 3 April 2018, the applicant’s nomination was effectively transferred to ATOP;[10]

   [10] See paragraph 20 below.

   (c)The principal of L&G and ATOP was a gentleman by the name of Lalith Giri (Giri);[11]

   [11] Applicant’s oral evidence at the hearing.

   (d)During the time for which the applicant worked for ATOP, it operated restaurants at St Kilda and Daylesford. The applicant worked for ATOP as a restaurant manager at those restaurants;[12] 

   [12] Applicant’s oral evidence at the hearing.

   (e)The applicant initially worked for ATOP at its St Kilda restaurant but ATOP closed that restaurant in about December 2018. At about that time, Giri told the applicant that he would be transferred to ATOP’s Daylesford restaurant. At the time, the applicant lived in Melbourne. The transfer required him to commute to Daylesford. That reduced the time the applicant had with his family in Melbourne;[13]

   [13] Applicant’s oral evidence at the hearing.

   (f)The applicant was required to manage every aspect of ATOP’s Daylesford restaurant. But he did not receive much support from Giri or ATOP. He encountered difficulty hiring enough staff to operate the restaurant properly. When he complained to Giri that he needed more staff to manage the restaurant properly Giri ignored him. Giri also ignored other complaints or requests for assistance the applicant made;[14]

   [14] Applicant’s oral evidence at the hearing.

   (g)That was consistent with Giri’s treatment of the applicant throughout his time with ATOP (and earlier with L&G). Giri was constantly restructuring the business, opening and closing restaurants, and moving the applicant around. That made it hard for the applicant. The applicant felt like Giri was wasting the applicant’s time;[15]

   [15] Applicant’s evidence at the hearing.

   (h)In April 2019, the applicant told Giri that he was encountering problems running the Daylesford restaurant and he needed more staff and support to run it properly. The applicant also told Giri that he was encountering difficulty commuting to Daylesford from Melbourne and he was spending too much time away from his family. The applicant told Giri he needed more support. Giri ignored the applicant’s complaints and did not fix anything;[16]

   [16] Applicant’s oral evidence at the hearing.

   (i)In about July 2019, Giri told the applicant that the Daylesford restaurant was not trading well and he was going to close the restaurant. Giri told the applicant that he could finish work when the restaurant closed. The applicant told Giri that was fine and he did not have another option;[17]

   [17] Applicant’s oral evidence at the hearing.

   (j)Subsequent to that conversation, the applicant ceased work with ATOP. His last day at work for ATOP was sometime in July 2019. He did not return to work for ATOP after that date. He did not receive any written notification from Giri or ATOP that his employment would cease or had ceased;[18]

   [18] Applicant’s oral evidence at the hearing.

   (k)At the time the applicant ceased work for ATOP, the company was behind in paying the applicant his salary and his superannuation. ATOP owed the applicant about a year’s worth of superannuation contributions. The applicant is not certain how much outstanding wages ATOP owes him. The applicant has lodged complaints about ATOP with the Australian Taxation Office and the Fair Work Ombudsman to which he is yet to receive a response. The applicant’s agreed wages was about $1,700 per fortnight after tax;[19]

   [19] Applicant’s oral evidence at the hearing.

   (l)The applicant feels as though Giri asked him to finish work for ATOP because he complained too much about Giri constantly restructuring the business, about his unpaid entitlements, and his requests for more support from Giri and ATOP;[20]

   [20] Applicant oral evidence at the hearing.

   (m)On 29 April 2019, ATOP requested that the department withdraw the sponsorship of the applicant.[21] The delegate understood that communication to be advice to the department that the applicant’s employment ceased effective on 29 April 2019.[22] That notification was a letter dated 29 April 2019 from ATOP to the Department of Home Affairs, which stated that “we would like to withdraw the above nomination application”. In the letter, ATOP asked the department to process the request as soon as possible;[23]

   [21] Delegates decision at p. 2.

   [22] Delegate’s decision at p. 2.

   [23] Letter from ATOP to the Department of Home Affairs dated 29 April 2019 on the department’s file.

   (n)The Department of Home Affairs sent the applicant a notice of intention to consider cancellation of his visa dated 5 November 2019. In the notice, the department stated that ATOP had advised it that the applicant ceased employment with it effective 29 April 2019. The department stated the applicant ceasing employment appeared to constitute a ground to cancel the applicant’s 457 visa under s. 116(1)(b) of the Act for beach of condition 8107(3)(b). The department asked the applicant to comment on that ground for cancellation;[24]

   [24] The notice of intention to consider cancellation dated 5 November 2019 is on the department’s file.

   (o)The applicant does not know why the ATOP advised the department on 29 April 2019 that he had ceased employment with it or that it wanted to withdraw its sponsorship. At that time, the applicant was still employed by ATOP and was still working for it. He did not cease work with ATOP until July 2019;[25]

   [25] Applicant’s oral evidence at the hearing.

   (p)The applicant responded to the notice of intention to consider cancellation of his visa by letter from his migration agent dated 19 November 2019, which had documents attached to it.[26] In his response, the applicant stated that:

   [26] The response and the attached documents are on the department’s file.

   (i)“Our client instructed us that he previously worked as a Restaurant and Café Manager for Atop Property Services Pty Ltd from April 2017; however, he ceased his employment with the above-mentioned business because the business owner closed the business without our client’s knowledge;

   (ii)ATOP had not paid the applicant all his salary and superannuation entitlements and the applicant has lodged a complaint with the Australian Taxation Office and the Fair Work Ombudsman (screenshots of the complaints to the Australian Taxation Office and the Fair Work Ombudsman were attached to the letter).[27] ATOP misused the applicant’s vulnerable position as a 457 visa holder. For those reasons the circumstances in which the applicant ceased employment with ATOP were beyond his control;

   (iii)After ceasing work with ATOP the applicant was hired, subject to his nomination being approved, by Gold Indian Restaurant. That business was in the process of applying to nominate the applicant; 

   (iv)The applicant was a qualified and experienced manager who can add significant value to an Australian business;

   (q)Attached to that letter was a letter from the managing director of Gold Indian Restaurant dated 13 November 2019 addressed to the Department of Home Affairs. The letter provided that the restaurant was in need of a full time restaurant manager. The applicant was the successful candidate for that position and it was necessary to have his nomination transferred before the applicant could commence work at the restaurant. The managing director stated that he would initiate the process for the applicant’s nomination to be transferred to his business;

   (r)Toward the end of November 2019, the director of Gold Indian Restaurant told the applicant that he was having issues with the business and he could not employ the applicant;[28]

   (s)At the time the delegate cancelled the applicant’s visa on 26 February 2020, there were no pending applications to nominate the applicant for a visa;[29]

   (t)In January 2020, the applicant interviewed for work at a restaurant called SkyHigh and subsequently completed a trial. The restaurant owner said that he was happy with the applicant’s work and would nominate the applicant for a visa. But soon after, the COVID-19 related business interruptions began and the matter was put in on hold. Shortly before the hearing, the applicant had another interview with SkyHigh and he has been shortlisted and he was confident SkyHigh would proceed with him. The applicant tried a few other restaurants but was not happy with those restaurants and did not ultimately seek work at them;[30]

   (u)Subsequent to the hearing, the applicant did not put any documents before the Tribunal about his claimed employment and nomination by SkyHigh and has not informed the Tribunal that SkyHigh has applied to nominate him for a visa. He has not notified the Tribunal that another employer has applied to nominate him for a visa. The Tribunal does not have any evidence before it that another employer has applied to nominate the applicant and there is no evidence of an approved nomination;

   (v)The applicant said that he knew it was a condition of his visa that he could not cease employment with ATOP for more than 90 consecutive days. He accepted there were grounds to cancel his visa because he did cease employment with ATOP for more than 90 consecutive days but the Tribunal should, in the appropriate exercise of its discretion, not cancel his visa.[31]

   [27] The documents attached to the applicant’s letter did not contain details of the complaints. They revealed only that the applicant complained.

   [28] Applicant’s oral evidence at the hearing.

   [29] Delegate’s decision at p. 4.

   [30] Applicant’s oral evidence at the hearing. At the hearing, the applicant stated that he wanted an opportunity to put documents before the Tribunal about his interview and trial with SkyHigh and the business nominating him for a visa if that comes to fruition. The Tribunal allowed the applicant to submit further documents to the Tribunal after the hearing.

   [31] Applicant’s oral evidence at the hearing.

4. In this case, for the power to cancel the applicant’s visa to be enlivened under s. 116(1)(b) of the Act for breach of condition 8107(3)(b), he must have ceased employment with ATOP and not resumed employment within the following 90 consecutive days.

5. It is plain from the applicant’s own evidence as set out in paragraphs 12(i),(j), (o), and (p)(i) above that the applicant accepts his employment with ATOP ceased. He does not maintain that his employment with ATOP continued such that he did not breach condition 8107(3)(b) of his visa. The applicant maintains only that his employment with ATOP did not cease in April 2019 when ATOP wrote to the department (because he was still working for ATOP at the time) but in July 2019 when he stopped going to work because of the closure of ATOP’s Daylesford restaurant and Giri’s direction not to return. The applicant did not subsequently return to work for ATOP and has not been the subject of a new approved nomination for a visa. The applicant accepts he breached condition 8107(3)(b) and there were grounds to cancel his visa.

6. For the purpose of this review, and insofar as it is necessary to make a finding on the point, the Tribunal accepts that the applicant’s employment with ATOP ceased in July 2019 (as he maintains) rather than in April 2019 when ATOP contacted the department. But in the end it does not matter. The applicant did not return to work for ATOP after his last day of work, which on the evidence is day on which the applicant’s employment ceased. It must follow that the applicant’s employment with ATOP ceased for more than 90 consecutive days whether that is calculated from 29 April 2019 or say 31 July 2019.      

7. On those reasons, the Tribunal finds that the applicant breached condition 8107(3)(b) of his visa and that the ground to cancel his visa under s. 116(1)(b) of the Act has been made out.

8. The Tribunal considers the applicant’s breach of condition 8107(3)(b) of his 457 visa to be a substantial one. After ceasing work with ATOP in July 2019, the applicant was not able to secure another application to nominate him for a visa or an approved nomination. The Tribunal returns to that matter below.

Consideration of the discretion to cancel the applicant’s visa

1. Section 116(1)(b) of the Act does not require mandatory cancellation of the applicant’s visa. Having found that grounds for cancelling the visa under that section have been made out, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. In exercising its discretion, the Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, matters in the ‘General visa cancellation powers’ departmental policy as well as all the other matters it considers relevant. Those are set out below.

The purpose of the applicant’s travel to and stay in Australia, and whether the applicant has a compelling need to remain in Australia

1. During the hearing, the applicant said that:

   (a)He came to Australia on a student visa in 2008;

   (b)Between 2008 and 2016 he obtained:

   (i)A Certificate III in commercial cookery from the Amberley Institute of Australia in 2011;

   (ii)A Diploma of Business from the Amberley Institute of Australia in 2012;

   (iii)A Diploma of Management and Advanced Diploma of Management from the ANGAD Institute of Technology in 2014; and

   (iv)A Diploma and Advanced Diploma of Marketing from the ANGAD Institute of Technology in 2016.[32]

   [32] See also delegate’s decision at p. 3 and applicant’s oral evidence at the hearing.

1. After the applicant completed his studies, he was employed by L&G as a café and restaurant manager and it nominated him for his 457 visa granted on 17 August 2016. On 3 April 2018, the applicant’s nomination was effectively transferred from L&G to ATOP after it applied successfully to nominate the applicant for a visa.[33]

   [33] Delegate’s decision at p. 4 and applicant’s evidence at the hearing.

2. At the hearing the applicant said that he wanted to remain in Australia to work as a restaurant manager and eventually open his own restaurant in Australia. He said that he depended on his 457 visa to remain in Australia and that if he had to return to India that would not be good for him and his family. As stated in paragraph above 12(p)(iv) above, in his response to the notice of intention to consider cancellation of his visa the applicant stated that he was a qualified and experienced manager who could add value to an Australian business.

3. A 457 visa is a temporary visa that provides for skilled people (and their immediate families) to come to Australia to work for an approved employer for up to four years. The visa operated on the premise that it would not undermine job opportunities for Australians. The 457 scheme allowed visa holders to fill roles where there was a genuine skills shortage or, in effect, where a suitably qualified Australian worker is not available.[34]

   [34] Larsen G; The subclass 457 Visa: a quick guide; Parliament of Australia at >

   The applicant’s stay in Australia on his 457 visa was for the purpose of working for L&G and then ATOP to fill a need that employer had for a café or restaurant manager, which it could not fill with a suitably qualified Australian worker. When the applicant ceased employment with ATOP in July 2019, given condition 8107(3)(b) of his visa, he effectively had 90 days to secure a new nomination for a visa in order to remain within the conditions of his visa. The applicant was not able to secure a new nomination within 90 days, after which he fell into breach of condition 8107(3)(b). From that point, the applicant’s continued stay in Australia on his 457 was in tension with the purpose of that visa.

4. The Tribunal accepts that the applicant searched promptly for a new sponsoring employer after he ceased employment with ATOP in July 2019. The Tribunal accepts that the applicant was able to secure a commitment from Gold Indian Restaurant in November 2019 to nominate him for a visa. The Tribunal accepts that the proposed nomination application did not ultimately proceed because of the COVID-19 related business interruptions that commenced in February or March 2020. The Tribunal accepts that the applicant sought nominations from other potential employers (such as SkyHigh) but was not able to secure a fresh nomination. And the Tribunal accepts that the applicant is a qualified and experienced café and restaurant manager who could add value with the right employer. The Tribunal weighs those matters against cancelling the applicant’s visa. Remaining in Australia to work for an employer who has successfully nominated a person for a visa is consistent with the purpose of that visa. The applicant had moderate success in locating a new nominating employer in that he secured promises to nominate him, which were either interrupted by COVID-19 or did not come to fruition for other reasons. Those things stand to the applicant’s favour in this review.

5. But despite searching for a new sponsoring employer from July 2019, the applicant has not placed any evidence before the Tribunal that another employer has applied to nominate him for a visa and there is no evidence of an approved nomination. Although condition 8107(3)(b) of the applicant’s 457 visa contemplated that he would have some time (90 days) to locate a new sponsoring employer after his employment ceased, it did not contemplate the applicant remaining in Australia for such an extended period – now nearly two years from July 2019 – to search for work. That purpose (extended search for work) is not consistent with the purpose of the applicant’s visa.

6. The applicant’s wish to remain in Australia even longer now to locate a fresh nomination ultimately counts against him in this review. Remaining in Australia to search for work or a new nomination is not consistent with the purpose of the applicant’s 457 visa.

7. The applicant has now had well over 90 days of ceasing his employment with ATOP, and thus a reasonably opportunity, to locate a new sponsoring employer in Australia but has been unable to do so. 

8. Accordingly, the Tribunal weighs the following matters heavily in favour of cancelling the applicant’s visa:

   (a)The substantial extent of the applicant’s breach of condition 8107(3)(b) of his visa. The applicant ceased employment with ATOP in July 2019. There is no evidence to date of the applicant having secured a new application to nominate him or a new nomination;

   (b)The applicant has now had a reasonable opportunity to secure a new nomination but has not been successful; and

   (c)The applicant’s wish to remain in Australia longer to search for work or a new nomination is not consistent with the purpose of his 457 visa.

9. Insofar as the applicant claims that he wants to remain in Australia to open his own restaurant, that is not consistent with the purpose of a 457 visa. That role does not fill a temporary skills shortage suffered by an employer. But the Tribunal does not weigh that in favour of cancelling the applicant’s visa. The Tribunal considers that to have a neutral impact on this review. At the hearing, the applicant said that he wanted eventually to open his own restaurant. The Tribunal understood the applicant to be referring to what he proposed to do once his future in Australia was more secure (through say permanent residency). The applicant did say that in the shorter term he wanted to work as a restaurant manager, which the Tribunal has weighed in his favour.

10. Although the applicant did not claim directly that the COVID-19 pandemic hampered his search for a new nominating employer,[35] the Tribunal has taken the effect of the pandemic on the applicant into account. The COVID-19 induced business shutdowns and interruptions in Victoria from February or March 2020 would have hampered the applicant’s search for a new employer. The Tribunal weighs that against cancelling the applicant’s visa. But the weight the Tribunal places on that matter is reduced by the length of time the applicant has had in Australia to locate a new employer (from July 2019), which time was not all impacted by COVID-19.

    [35] He made the claim indirectly when he said that the proposed employment with SkyHigh in February 2020 did not proceed because of COVID-19. 

11. The applicant wants the decision to cancel his 457 visa set aside because that is the means by which he can remain in Australia with his family. The applicant claims, in substance, that he wants to remain in Australia because he will be better off here than he will in India as will his family. Putting aside for the moment the reality that but for its cancellation the applicant’s visa would have expired on 17 August 2020, the Tribunal weighs the applicant’s claim against cancelling his visa. Of course, the applicant and his family will be better off in developed Australia than they will be in developing India.  But the weight the Tribunal places on the claim is limited. Remaining in Australia to enjoy the benefits that entails (such as better economic opportunity) is not consistent with the purpose of a 457 visa. Although the Tribunal acknowledges that a 457 visa is often a pathway to permanent residency in Australia (and all the benefits that affords including economic opportunity), hence the weight the Tribunal has given the claim (albeit limited), a 457 visa is temporary and it does not come with any guarantee or express representation of permanent residency. Strictly, remaining in Australia to explore permanent residency avenues is not consistent with the purpose of the applicant’s 457 visa.

12. Under this purpose-of-the-457-visa head, the Tribunal has weighed the matters set out in paragraph 28 above heavily in favour of cancelling the applicant’s 457 visa. The Tribunal has weighed the matters set out in paragraphs 24, 30 and 31 above against cancelling the visa. Those matters mitigate the weight the Tribunal places on the matters in paragraph 28 above but do not outweigh them entirely.

13. Otherwise, the Tribunal does not consider the applicant to have a compelling need to remain in Australia.

The extent of compliance with visa conditions

1. As stated in paragraph 11 above, the applicant’s 457 visa was subject to condition 8107. Further to condition 8107(3)(b), the applicant’s visa was also subject to the following conditions:

   (a)The applicant must work only in the occupation listed in the most recently approved nomination (condition 8107(3)(a)(i)); and

   (b)The applicant must work only in a position in the business of the sponsor or an associated entity of the sponsor (condition 8107(3)(ii)(B).[36]

   [36] The application of this condition was subject to ATOP lawfully operating a business in Australia at the time of its approval as a standard business sponsor, which was the case here.

2. There are documents on the department’s file that reveal that in April and May 2019 the department received information that while the applicant was still employed by ATOP (and at times while he was on approved leave from ATOP), he was also:

   (a)Working at a bar/restaurant in Albert Park;

   (b)Working for a bread supplier in Melbourne;

   (c)Working as an Uber driver under his brother’s ABN; and

   (d)Involved in money laundering with his brother.

3. The documents in the department’s file in which some of that information was contained were covered by a certificate dated 2 March 2020 issued by a delegate to the minister for the Department of Home Affairs under s. 376 of the Act. The certificate provided that disclosure of the documents covered by the certificate would be contrary to the public interest because it would disclose or enable a person to ascertain the existence or identity of a confidential source of information. The documents covered by the certificate were internal department documents which recorded information provided to the department by private citizens. The documents reveal that at least one of the sources of that information stated that the person(s) wanted to remain anonymous.

4. Under cover of a letter dated 15 December 2020, the Tribunal sent the applicant a copy of the s. 376 certificate. In the letter, the Tribunal informed the applicant that at the hearing the Tribunal would invite submissions from the applicant about whether the certificate was valid to prevent disclosure of the relevant documents to the applicant, and if so whether the Tribunal should, in any event, exercise its discretion under s. 376(3)(b) of the Act to release the documents or information in the documents.  

5. At the hearing, the Tribunal told the applicant that:

   (a)It wanted to put to him some adverse information for his comment or response;

   (b)Once it put the information to him it would adjourn the hearing for ten minutes or so to allow him to discuss his comment or response with his representative and to consider his comment or response; and

   (c)If he needed additional time to consider his comment or response or to comment or respond he could seek additional time and the Tribunal would consider whether the applicant reasonably required more time to comment or respond.

6. After advising the applicant of those matters, under s. 359AA of the Act the Tribunal gave the applicant particulars of the information set out in paragraph 35 above and told the applicant that:

   (a)The information was relevant because if the Tribunal found that the power to cancel the applicant’s visa under s. 116(1)(b) of the Act had been enlivened, it did not have to cancel the visa but it had a discretion to cancel. It could exercise that discretion by either affirming the delegate’s decision to cancel or setting aside the cancellation decision. One of the matters it could take into account when considering its discretion to cancel was whether the applicant had breached other conditions of his visa. It was also a condition of the applicant’s visa that he could not work for a person that was not his approved employer while his visa remained current;

   (b)If the Tribunal relied on the information that he worked for the employers set out in paragraphs 35(a)-(c) above while ATOP was still his approved employer, the Tribunal could find that constituted another breach of his visa conditions. In that event, the Tribunal would, subject to his comment or response, weigh that in favour of cancelling his visa;

   (c)On the information that he was involved in money laundering with his brother, that is a matter the Tribunal considered relevant to its discretion to cancel his visa. If it relies on the information, it would weigh it in favour of cancelling his visa;

   (d)Those matters would constitute a reason or part of the reasons for affirming the decision under review; and

   (e)The Tribunal sought the applicant’s comment or response to the information before deciding the review. 

7. The Tribunal also explained again to the applicant the matters set out in its letter of 15 December 2020 under cover of which it sent the applicant the s. 376 certificate. The Tribunal informed the applicant that some of the information set out in paragraph 35 above was contained in the documents covered by the s. 376 certificate. The Tribunal told the applicant that it sought his comment or submissions on whether the s. 376 certificate was valid, and if so, how it should exercise its discretion under s. 376(3)(b) of the Act. The Tribunal told the applicant that he should discuss those matters with his representative during the brief adjournment of the hearing and give the Tribunal his comments or submissions on those matters when the hearing resumed.

8. The Tribunal then adjourned the hearing for the applicant to speak to his representative and to consider his comment or response.

9. On the hearing resuming, the applicant did not seek additional time to comment or respond to the information. He told the Tribunal the following:

   (a)He had no idea of the basis of the allegations relating to the bread supplier in Melbourne, driving for Uber, and money laundering;

   (b)In relation to Uber, his brother does drive for Uber. In order to drive for the company, a person must first login to the system by taking a “selfie”. Only once the Uber system verified the driver’s identity through face recognition could the driver then proceed to drive for the company. The face recognition system would recognise the applicant as being a different person to his brother. It was not possible for him to pass himself off as his brother and drive for Uber;

   (c)He has never heard of the bread supplier in Melbourne for whom he was alleged to work;

   (d)He is not involved in any money laundering;

   (e)In relation to the bar/restaurant in Albert Park, the owner of that establishment was Giri’s friend. When ATOP’s restaurants at which the applicant worked were slow, Giri sent the applicant to help at the Albert Park restaurant. He was never paid by Giri’s friend for working at the Albert Park bar/restaurant;

   (f)He suspects Giri gave the adverse information about him to the department. Giri had wasted a lot of the applicant’s time during the period in which he work for ATOP and its predecessor L&G. Giri was always restructuring his business (part of which was the effective transfer of his nomination from L&G to ATOP), opening and closing restaurants, and moving the applicant between restaurants. When the applicant told Giri that he was tired of Giri wasting his time and that he did not want to continue working for ATOP if Giri kept wasting his time, Giri told the applicant that he would complain about the applicant to the department and destroy the applicant’s career. Giri also posted false, negative reviews on Google about the business operated by the applicant’s brother (in addition to making false allegations to the department) in order to get at the applicant.

10. In relation to the s. 376 certificate, the applicant said that it was not valid because the information the Tribunal had put to him was not true.

11. While the applicant was commenting on or responding orally to the information the Tribunal had particularised to him as set out in paragraph 35 above, he stated that he wanted to send the Tribunal documents to support his comment or response.

12. The Tribunal then invited the applicant’s representative to make submissions about the adverse information, whether the s. 376 certificate was valid, and whether the Tribunal should disclose the documents or the information they contained to the applicant in the exercise of its discretion under s. 376(3)(b) of the Act. The applicant’s representative stated that he wanted time to put submissions on those matters in writing.

13. At the hearing, the Tribunal told the applicant and his representative that it would allow them until 8 January 2021 to provide any further comment or response to the information, provide further documentary evidence, and make written submissions about the s. 376 certificate. The applicant’s representative told the Tribunal that was sufficient time for him to take instructions and provide the Tribunal with documents and submissions. The Tribunal also told the applicant and his representative that if, after receiving the written submissions from the applicant’s representative, it decided that the documents covered by the s. 376 certificate could be released (either because the certificate was invalid or because it would release the documents in under s. 376(3)(b) of the Act) it would notify the applicant before deciding the review and, if the applicant sought copies of the documents, would supply copies and allow the applicant a further opportunity to address the Tribunal on them. The applicant’s representative stated that he was content with that course.

14. The post-hearing submissions dated 8 January 2021 that the applicant’s representative sent the Tribunal contained further comment or response on the information set out in paragraph 35 above. In the post-hearing submissions, the applicant stated:

    (a)He strongly believed that Giri made the complaint to the department because the applicant did not want to work for Giri at multiple premises after Giri kept closing and opening businesses and the applicant complained about Giri to the Australian Taxation Office and Fair Work because Giri had not paid him his entitlements;

    (b)Giri posted a false, negative Google review of the real estate business of the applicant’s brother as a further way to get back at the applicant. The applicant sent the Tribunal a copy of the review;

    (c)The applicant denies strongly that he has ever been involved in money laundering with his brother or that he ever worked at the Melbourne bread supplier business. The applicant sent to the Tribunal statutory demands attesting to his brother and him being of good character. The applicant also sent the Tribunal a National Police Certificate certifying that as at 13 January 2021 there were no disclosable outcomes recorded against the applicant in the records of the Australian Federal Police and the police of all the Australian states and territories;

    (d)The applicant has never driven for Uber pretending to be his brother, and that is not possible given Uber imposes face identification logon authorisation before anybody can drive for it. Accordingly, it is impossible for the applicant to pass himself off as his brother and drive for Uber. The  applicant referred the Tribunal to a link on Uber’s website describing its logon procedure; and

    (e)Further to what the applicant said at the hearing, he has never been paid by the owner of the Albert Park bar/restaurant. He has only ever been paid by ATOP because that was his approved nominating employer. The applicant sent the Tribunal copies of his bank statements to make good that argument.

1. In the post-hearing submissions, despite what the applicant’s representative said at the hearing, he did not make any submissions about the validity of the s. 376 certificate nor whether the Tribunal should, nevertheless, release information in the protected documents under s. 376(3)(b) of the Act. In this review, the applicant did not seek copies of the documents the subject of the s. 376 certificate or the information they contained, whether under s. 362A of the Act of otherwise.

2. Turning to the Tribunal’s findings under this head, it deals first with the s. 376 certificate. As stated in paragraph 36 above, the delegate who issued the certificate certified that the disclosure of the documents or information in the documents would be contrary to the public interest because it would disclose or enable a person to ascertain the existence or identity of a confidential source of information. That is certification under s. 376(1)(a).

3. The documents covered by the s. 376 certificate were internal department documents that recorded “dob in” information the department had received. The documents reveal that the information may have been received from more than one source. According to the documents, the department received multiple lots of information on separate days. The documents record that on at least one occasion the source of some of the information stated that he/she wanted to remain anonymous. The documents also record the name and email address of a source of information. It is not clear from the documents whether that source ultimately wanted to remain anonymous.

4. Where information or a document relates to a matter of state, a court can exclude the information or document from being admitted into evidence where the public interest in admitting the information or document is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document.[37] A matter of state includes information that would disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or state.[38] Ordinarily, a court should not order discovery of documents that would disclose or enable a person to ascertain the existence or identity of a confidential source of information or administration of a law of the Commonwealth.[39] For the purpose of a s. 376 certificate, the public interest can be served (and a certificate could be valid) if :

   (a)The documents protected by the certificate would identify a confidential source of information if the documents were disclosed;

   (b)Disclosure of the information would affect the candour and willingness of individuals to provide information to the department and that disclosure may result in the flow of information ‘drying up” in future; and

   (c)The relevant allegations in the protected documents were put to the applicant and he was given an opportunity to respond to them.[40]

   [37] Evidence Act 1995 (Cth), s. 130(1).

   [38] Evidence Act 1995 (Cth), s. 130(4)(e).

   [39] D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 218 per Lord Diplock.

   [40] Bui v Minister for Immigration & Anor [2019] FCCA 3363 at [33]-[39] per Blake J.

5. Having reviewed the s. 376 certificate in this matter and the documents the certificate protects, the Tribunal has concluded that the certificate is valid to protect the disclosure of the documents or information in them to the applicant. The certificate certifies that documents or information contained in them would be contrary to the public interest and it set out the reason for the claim – disclosure would reveal the existence or identity of a confidential source of information. Such a claim can ground a valid s. 376 certificate. The documents contained the information set out in paragraph 35 above (as well as other information), which included an allegation of criminal conduct and information that was relevant to whether the applicant breached the terms of his visa. Such matters relate to the enforcement or administration of Commonwealth or state laws. The documents also identify the source of some of the information, who wanted (or might have wanted) to remain anonymous. So, an examination of the documents reveals that the claim for protection in the s. 376 certificate is accurate and has been made out. Further, at a general level, disclosing documents that do or could identify a source of information in circumstances where the source wished to remain anonymous would tend to discourage the public from candidly passing on information to the department. Accordingly, there is a public interest to be served in protecting the documents covered by the certificate from disclosure.

6. For the purpose of s. 376(3)(b) of the Act, the Tribunal has weighed the public interest to be served in keeping the documents from the applicant against the need to extend procedural fairness to him in this review. The Tribunal has concluded that procedural fairness to the applicant does not necessitate releasing the documents to the applicant or disclosing all the information in the documents to him. The Tribunal has disclosed to the applicant all the information in the documents protected by the s. 376 certificate that is relevant to this review. The Tribunal disclosed that information to the applicant under s. 359AA of the Act as set out in paragraphs 38-40 above. The applicant has commented on or responded to that information. The other information in the documents is not relevant and the Tribunal has not relied on any other information in the documents to determine this review. The other information in the documents is not the reason or part of the reasons for affirming the delegate’s decision. For those reasons, the Tribunal has decided that it will not release the documents to the applicant under s. 376(3)(b) of the Act or otherwise.

7. The Tribunal turns now to the information set out in paragraph 35 above that the Tribunal particularised to the applicant for comment or response under s. 359AA of the Act. The Tribunal notes the following:

   (a)The information constitutes a set of serious allegations against the applicant, especially that he is involved in money laundering, The information is not corroborated by other evidence;

   (b)Other than accepting that he worked occasionally at the bar/restaurant in Albert Park at Giri’s direction, the applicant vehemently denied the other allegations;

   (c)The applicant has given a credible explanation to rebut the allegation that he worked as an Uber driver under his brother’s name;

   (d) According to the bank statements the applicant gave the Tribunal, he was only ever paid by ATOP at the time he was alleged to be deriving income from other sources;

   (e)The applicant conceded willingly that he worked at the bar/restaurant in Albert Park at Giri’s direction. Had the applicant not made that concession the Tribunal would have been none the wiser on the matter given the complete lack of other evidence supporting the allegations against the applicant. That stands to the applicant’s credit as a witness in this review. 

8. Given those matters, the Tribunal is not prepared to accept the accuracy of the “dob in” information against the applicant set out in paragraph 35 above and rely on the information against the applicant in this review. The Tribunal addresses each item of information more particularly below.

9. On the evidence before the Tribunal, it does not:

   (a)Find that the applicant worked for a bread supplier in Melbourne during the time he was employed by ATOP;

   (b)Find that the applicant worked as an Uber driver under his brother’s ABN while he was employed by ATOP or otherwise;

   (c)Find that the applicant breached conditions 8107 of his visa as set out in paragraph 34 above by reason of those allegations; and

   (d)Weigh those matters in favour of cancelling the applicant’s visa.

10. In relation to the allegation that the applicant worked at the bar/restaurant in Albert Park, although the applicant accepted he worked there occasionally during his employment with ATOP, on his evidence on the matter which the Tribunal accepts, he was never employed by the owner of that bar/restaurant and was never paid by the owner. He worked there occasionally at Giri’s direction. Viewed that way, working at the Albert Park restaurant occasionally was within the scope of his employment with ATOP. That did not constitute a breach of condition 8107 of his visa as set out in paragraph 34 above. Insofar as the occasional work at the Albert Park restaurant technically placed the applicant in breach of those visa conditions, the Tribunal disregards the technical breach for the purpose of this review. The direction from Giri to work occasionally at the Albert Park bar/restaurant in a role that was the same as the one he performed for ATOP was a direction the applicant could not have reasonably ignored. Accordingly, the Tribunal does not weigh any technical breach in favour of cancelling the applicant’s visa. That individual matter is neutral.

11. The money laundering allegation logically belongs under another head of this decision but it is more conveniently dealt with here. On the evidence before the Tribunal, it is not prepared to accept that the applicant has ever engaged in money laundering or any other criminal conduct while in Australia. The Tribunal disregards the allegation for the purpose of this review. It does not weigh the allegation in favour of cancelling the applicant’s visa.

12. Lest there be any doubt about the matter, the Tribunal confirms:

    (a)The Tribunal does not weigh any of the information set out in paragraph 35 above against the applicant in any way in this review; and

    (b)The Tribunal does not weigh the information set out in paragraph 35 above in favour of cancelling the applicant’s visa.

13. In conclusion under this head, other than the applicant’s breach of condition 8107(3)(b) of his visa in issue, he has not breached any other condition of his visa. The Tribunal weighs that lack of other visa condition breaches against cancelling the applicant’s visa.

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

1. The applicant is married and has a four year old daughter. He was married in India in 2014 and his daughter was born in India. He lives with his wife and daughter in Australia.[41] At the hearing, the applicant said that if he was required to return to India with his family they would have a hard time and will not be happy. The family relies on the applicant’s 457 visa to remain in Australia. The applicant also said that having to return to India will affect his daughter’s future. She was to start kindergarten in Australia at the beginning of 2020.

   [41] Delegate’s decision at p. 5 and applicant’s evidence at the hearing.

2. The applicant has been in Australia since 2008. He has lived in Australia as a married man with his wife since 2014. He also has an elder brother in Australia. The Tribunal accepts that in his time in Australia the applicant would have established a network of friends and associates (both economic and personal). The applicant’s wife would also have established a network of friends and associates. The Tribunal accepts that the applicant and his wife will encounter some hardship in readjusting to life in India if they must return.  The hardship will be both social and economic. The applicant and his wife will need to re-establish their social lives after so long away from India and that will entail hardship. If the applicant and his wife find work in India (which will take some time), it will not be as well remunerated as work in Australia. That will also entail hardship on the applicant and his wife. Further, the current COVID-19 pandemic could interfere with attempts by the applicant and his wife to locate work in India.  The Tribunal accepts that, in the longer term, the family will have less economic opportunities in India than they will in Australia.

3. The Tribunal also accepts that returning to India will visit some hardship on the applicant’s daughter. She will also need to adjust to a different life in India. Also, in the longer term, the applicant’s daughter will have more limited educational and career opportunities in India.

4. Insofar as the applicant and his family could suffer health related hardship in India because of the COVID-19 pandemic the Tribunal has addressed that matter in paragraph 87 below.

5. The Tribunal weighs the matters in paragraphs 62 and 63 above against cancelling the applicant’s visa.

6. But the applicant is 39 years old. The applicant’s wife is 30 years old.[42] The Tribunal considers that although having to re-adjust to life in India will entail some challenges for the applicant and his wife  their relatively young age will be in their favour when seeking to re-establish their lives. The applicant’s Australian qualifications can only assist him when it comes to re-establishing his career. In relation to the applicant’s daughter, she is still very young and will have time to adjust to life in India. Also, having just started kindergarten any dislocation in her education will be limited. Those matters mitigate the weight the Tribunal places on the applicant’s hardship claims.

   [42] The applicant’s wife was born on 8 December 1990.

7. On balance, the applicant’s hardship claims weigh against the Tribunal cancelling the applicant’s visa, although their weight is reduced by the matters set out in the preceding paragraph.

Circumstances in the which the ground for cancellation arose. Were the circumstances beyond the applicant’s control?

1. The applicant claims that he ceased employment with ATOP in the circumstances set out paragraphs 12(b) to (l) above. The applicant claims generally that Giri and ATOP did not give him sufficient support during the time he worked for the company. The applicant claims that because he refused to go along with Giri’s constant restructuring of ATOP’s business (and the inconvenience that visited on the applicant) and complained about the lack of support and outstanding entitlements Giri invited the applicant effectively to leave the company when ATOP closed its Daylesford restaurant in July 2019. In his letter to the department dated 19 November 2019 in response to the notice of intention to consider cancellation of his visa (as referred to in paragraph 12(p) above), the applicant also stated that he ceased employment with ATOP because Giri closed the business without the applicant’s knowledge. The applicant claims that Giri generally mistreated him during his time with ATOP because he was on a 457 visa and that ATOP still owes him money for unpaid salary and superannuation entitlements.

2. On the evidence before the Tribunal, it is prepared to accept that the applicant encountered difficulties with ATOP and Giri during his time working for them. The Tribunal does not have documentary evidence before it about the substance of his complaints about ATOP to the Australian Taxation Office and the Fair Work Ombudsman (only the applicant’s oral evidence about unpaid salary and superannuation), but the fact of the complaints tends to support the applicant’s claims about how ATOP and Giri treated him. In the circumstances, the Tribunal accepts that the applicant had little choice but to leave his employment with ATOP in July 2019 because of a combination of the troubled relationship he had with Giri, ATOP closing its Daylesford restaurant, and Giri’s invitation that the applicant leave. In those circumstances, the Tribunal accepts that the circumstances in which the applicant ceased his employment with ATOP were not of his making and were beyond his control. The Tribunal weighs that against cancelling the applicant’s visa.

Past and present behaviour towards the Department   

1. There is no evidence before the Tribunal that the applicant has not cooperated with the Department. The Tribunal has weighed that against cancelling the applicant’s visa.

Whether there would be consequential cancellations under s. 140

1. The visas of the second and third applicants were cancelled consequentially because of the cancellation of the applicant’s visa. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in the separation of the applicant from the second or third applicant or the breakup of the family. Accordingly, this consideration is neutral. Insofar as the second and third applicants will suffer hardship by reason of the cancellation of the applicant’s visa, the Tribunal has considered those matters in paragraphs 61-67 above.

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

1. The applicant is currently on a bridging visa E (class WE subclass 050) pending the outcome of this review. The applicant was granted that visa on 20 March 2020. Before that, he held two bridging visas of the same kind. The first was granted on 26 February 2020 (the day his 457 visa was cancelled) and it ceased on 11 March 2020. The second was granted on 11 March 2020 and it ceased on 20 March 2020.[43] So, the applicant has held a bridging visa E from the day his 457 visa was cancelled.

   [43] Departments records in ICSE.

2. His latest bridging visa will cease given that the Tribunal has decided to affirm the delegate’s cancellation decision. In the absence of the Minister granting the applicant another visa, he will now not have authority to remain in Australia with his family. If that is the case, the applicant and his family will have the opportunity to depart Australia. Whilst his continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision. The Tribunal has taken those matters into account.

3. 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 in Australia. Regulation 2.12 of the Regulations prescribes the classes of visas. Subclass 457 (and 482) visas are not prescribed. Consequently, this limits what visa applications the applicant can make whilst onshore. The Tribunal has taken that potential limitation on the applicant’s future visa applications actions into account and weighed that against exercising its discretion to cancel the applicant’s visa.

4. The cancellation of the applicant’s visa will not attract the application of Public Interest Criteria 4013 (PIC 4013).[44] The visa cancellation will not attract the risk factors set out in PIC 4013 necessary to invoke its application. The Tribunal considers that to have a neutral impact on this review.

   [44] Delegate’s decision at p. 8.

5. The Tribunal has considered the potential impact of PIC 4014 on the applicant. That public interest criteria provides that a visa holder will be affected by a risk factor if the person left Australia as an unlawful non-citizen or the holder of certain bridging visas including a bridging visa E. The risk factor will not operate if the visa holder left Australia within 28 days after the substantive visa ceased to be in effect or a while on a bridging visa granted within 28 days after the substantive visa ceased to be in effect. If it applies, PIC 4014 will effectively bar the visa-holder from obtaining another visa unless the application is made more than three years after the person left Australia or there are compelling circumstances affecting Australia, or compassionate or compelling circumstances affecting the interests of an Australian resident, justifying the grant of a visa within three years after departure.

1. As set out in paragraph 72 above, the applicant has held a bridging visa E from the date his 457 visa was cancelled on 26 February 2020. His latest bridging visa E was granted on 20 March 2020, which was within 28 days of his 457 visa being cancelled. So, as things presently stand, the applicant will not be affected by the relevant risk factors that will attract the application of PIC 4014.  If that is correct, it has a neutral impact on this review. But the Tribunal acknowledges that, depending on what happens between the date of this decision and when the applicant leaves Australia, PIC 4014 could be invoked and the applicant could be impacted by it. The Tribunal approaches the matter on the grounds that PIC 4014 could be invoked at the time the applicant leaves Australia. In that event, the applicant will not be able to obtain a visa from offshore within three years of leaving. If he subsequently wants to return on another visa within three years of leaving, the Tribunal has considered the possibility that the applicant will not be able to make out the necessary compelling or compassionate circumstances justifying a visa grant in order to obtain a visa in those circumstances. The Tribunal has weighed those matters in the applicant’s favour; it has weighed them against cancelling the applicant’s 457 visa.

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

1. The Tribunal has considered Australia’s international agreement and treaty obligations.

2. Article 3 of the United Nations Convention on the rights of the Child (CROC), to which Australia is a signatory, provides that the best interests of the child shall be a primary consideration in any action concerning children by administrative authorities. Accordingly, in this review, the Tribunal has considered the best interests of the applicant’s daughter (the third applicant) as a primary consideration.

3. At the hearing, the applicant said that if his visa was cancelled and the family had to return to India it would affect his daughter’s future. She was to start kindergarten at the beginning of 2021 and she would be better off in Australia.

4. Insofar as that evidence is relevant to a hardship claim on behalf of the applicant’s daughter (the third applicant), the Tribunal has considered that in paragraphs 61-67 above. The evidence is also relevant to Australia’s obligations under the CROC, which the Tribunal considers below.

5. The Tribunal accepts that Australia generally has a better standard of living than India and will generally offer better future educational and career opportunities to the third applicant. In that sense, the third applicant will be better off in Australia than in India and the best interests of the third applicant under the CROC are best served by remaining in Australia. Assuming that setting aside the decision to cancel the applicant’s visa will facilitate the third applicant remaining in Australia with her parents, cancelling the applicant’s visa now will not be in the best interests of the third applicant under the CROC. From the standpoint of the best interests of the third applicant, setting aside the delegate’s cancellation decision is the preferable decision.

6. But to be balanced against that finding are two matters that reduce its force in this review. First, that the third applicant will be better off in Australia than in India is a conclusion of largely general application. It that can be applied to may (if not most) instances of visa cancellation that will result in a child being required to leave Australia for a less developed country (such as India) or one that does not provide for as many educational or career opportunities as Australia. The applicant here has adduced little evidence of the particular circumstances that his family is likely to face in India to explain why those circumstances will particularly disadvantage the third applicant or be substantially against her best interests such that the point is elevated above that of the general observation.

7. Second, the third applicant is four years old. She obtained her visa consequentially on the first applicant obtaining his visa. There is no evidence before the Tribunal that the second or third applicants have applied for visas to remain in Australia independently of the applicant. The Tribunal concludes that if the applicant’s visa remains cancelled with the consequence that the applicant must return to India, the second and third applicants will return with him. In that event, the third applicant will not be separated from either of her parents. Again, the applicant has adduced limited evidence to explain specifically why the third applicant will be so disadvantaged or why her best interests will be intruded upon by having to return to India given she will still be with her parents other than to say more generally that the third applicant will have a better future in Australia (with her parents).

8. In conclusion on the best interests of the third applicant under the CROC, the Tribunal finds that by reason of the matters set out in the paragraph 82 above, cancelling the applicant’s visa will not be in the best interests of the third applicant. The preferable decision would be to set aside the cancellation decision. The Tribunal weighs that in the applicant’s favour in this review; that is, against cancelling his visa. But by reason of the matters set out in paragraphs 83 and 84 above, the Tribunal considers the extent to which cancelling the applicant’s visa will not be in the best interests of the third applicant to be moderate. That reduces the weight the Tribunal places on this consideration. The Tribunal returns to the weight given to the consideration as against those favouring cancelling the applicant’s visa in paragraphs 91 and 92 below.  

9. Otherwise, on the evidence before the Tribunal, Australia’s international agreement and treaty obligations are not engaged by the cancellation of the applicant’s visa.

Other relevant matters

1. The Tribunal notes that India is currently suffering from widespread transmission of the COVID-19 virus and that the applicant and his family may be exposed to that widespread transmission if they return to India. At a more general level, the Tribunal understands that a person in a large developing country like India will be more vulnerable to COVID-19 than the same person would be in a smaller developed country like Australia. One would expect Australia to have more capacity to control the spread of a virus and treat the effects of infection than would India. The Tribunal weighs those matters against cancelling the applicant’s visa but the weight is limited. COVID-19 is a worldwide pandemic that has affected all countries including Australia and the threat faced by individual countries changes constantly. It is difficult to predict what the level of threat will be in Australia and in India from week to week or month to month.

2. The travel restrictions currently imposed by countries around the world might impede the applicant and his family in returning to India. While the applicant and his family, as holders of temporary visas, are not prevented from leaving Australia[45] they might be subject to international border restrictions in India preventing their entry. That could delay their departure from Australia. In that event, it is open to the applicant and his family to apply for bridging visas allowing them to remain in Australia while arranging their return to India.[46] The Tribunal has taken all those matters into account.

Conclusion on discretion

[45] type="1">

The Tribunal has considered all the evidence before it carefully and all the matters in favour of cancelling the applicant’s visa and all the matters that weigh against that outcome.

The Tribunal considers the applicant’s breach of condition 8107(3)(b) of his visa to be a substantial one. His employment with ATOP ceased in July 2019 and there is no evidence before the Tribunal to establish that the applicant has secured another application to nominate him for a visa or an approved nomination. The Tribunal weighs those matters (as set out more fulsomely in paragraph 28 above) heavily in favour of cancelling the applicant’s visa.

The Tribunal has weighed several matters against cancelling the applicant’s visa. In particular, the Tribunal has examined the circumstances in which the grounds for cancelling the visa arose and has found that those circumstances were beyond the applicant’s control. The Tribunal has weighed that against cancelling the applicant’s visa. The Tribunal acknowledges that the ‘General visa cancellation powers’ departmental policy provides that, as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose was beyond the visa holder’s control. But that is not a rule of inflexible application but a general approach expressed in departmental policy. For the purpose of this review, the Tribunal considers the consideration to be one to be weighed with others. The Tribunal has also considered the best interests of the third applicant under the CROC. The Tribunal has concluded that deciding to set aside the delegate’s decision to cancel the applicant’s visa is the outcome that is in the best interests of the third applicant under the CROC (as against affirming the cancellation decision) but, on the evidence, only moderately so. The matter is finely balanced and the weight the Tribunal places on the consideration is limited.

On balance, the Tribunal considers the matters favouring cancelling the applicant’s 457 visa, primarily those set out in paragraph 28 above, outweigh those favouring setting aside the cancellation decision including, both individually and cumulatively:

(a)The circumstances in which the cancellation ground arose being beyond the control of the applicant; and

(b)The best interests of the third applicant as a primary consideration under the CROC favouring setting aside the cancellation decision.

The Tribunal concludes that the correct and preferable exercise of its discretion favours affirming the delegate’s decision to cancel the applicant’s visa.

DECISION

1. The Tribunal affirms the decision to cancel the first applicant’s Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa.

2. The Tribunal has no jurisdiction with respect to the second and third applicants.

L. Hawas
Senior Member