PATEL (Migration)

PATEL (Migration) [2018] AATA 2337 (24 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Jagrutiben Nikeshkumar PATEL
Mr Nikeshkumar Bababhai PATEL
Miss Hetvi Nikeshkumar PATEL
Mr Divy PATEL
CASE NUMBER:  1620111
DIBP REFERENCE(S):  BCC2016/2580911
MEMBER:Susan Trotter
DATE:24 May 2018
PLACE OF DECISION:  Brisbane
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 24 May 2018 at 4:12pm
CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Whether the ground for cancellation exists – Where the applicant’s standard business sponsor is subject of a sponsorship bar – Whether the discretion to cancel the visa should be exercised – Purpose of the visa is to allow the applicant to work for the sponsor – Purpose for which the visa was granted no longer exists – Where the circumstances leading to cancellation were out of the applicant’s control – Where applicant has attempted to regain employment – Degree of hardship if visa was to be cancelled – Grounds for cancellation outweigh degree of hardship – Decision affirmed
Practice and Procedure – Consequential cancellations do not involve a reviewable decision – Tribunal has no jurisdiction to review consequential cancellations
LEGISLATION
Migration Act 1958 (Cth), ss 48, 116(1)(g), 140M, 363(1)(b), 375A, 359AA
Migration Regulations 1994 (Cth), 2.43(1)(l)(iv), Schedule 8, Condition 8107
CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
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 23 November 2016 made by a delegate of the Minister for Immigration and Border Protection (the Minister) 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).
On 30 September 2014, the first-named applicant (referred to as at the applicant in these reasons) was granted a Subclass 457 visa based on the sponsorship of Dev Enterprises Pty Ltd trading as Sirocco Hair Care (referred to in these reasons as the sponsor).
On 19 October 2016, a Notice of Intention to Consider Cancellation (NOICC) was forwarded to the applicant, advising of intention to cancel the applicant’s visa on the basis that a prescribed ground for cancelling the visa applied, that is the sponsor had been cancelled or barred.
The applicant responded to the NOICC and, on 23 November 2016, the visa was cancelled under s.116(1)(g) of the Act on the basis that the applicant’s sponsor was barred or cancelled and on the basis that the grounds for cancelling the visa outweighed the reasons for not cancelling the visa.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 28 November 2016. The applicant provided a copy of the delegate’s decision and decision record to the Tribunal with her application.
The applicant appeared before the Tribunal on 28 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages.
The applicant was represented by her registered migration agent.
Following the hearing, the Tribunal allowed 14 days for written submissions and any further material to be provided to the Tribunal. Nothing further was received from the applicant or representative within that time or up until the date of the Tribunal’s decision.
Although neither the applicant nor her representative has requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review further under s.363(1)(b) of the Act to allow the applicant additional time.
In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.
The applicant and her representative have not provided further material to the Tribunal in the time allowed, nor has additional time been sought.
The Tribunal has taken into account the fact that the applicant has had the benefit of representation from a registered migration agent in order to assist her.
In all of these circumstances, the Tribunal considers that the applicant has had sufficient time in which to provide further information to the Tribunal.
Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicant more time.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
ISSUES
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(g) because a prescribed ground for cancelling the applicant’s visa existed.
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.
There are no matters specified in the Act or Migration Regulations 1994 (the 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 Procedures Advice Manual (PAM3) of the Department of Immigration and Border Protection (the Department) under ‘General visa cancellation powers’ including:
(a)The purpose of the visa holder’s travel and stay in Australia; whether the visa holder has a compelling need to travel to or remain in Australia;
(b)The extent of compliance with visa conditions;
(c)Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the visa holder and any family members;
(d)Circumstances in which the ground of cancellation arose. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control;
(e)Past and present conduct of the visa holder towards the Department;
(f)Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention;
(g)Whether there would be consequential cancellations under s.140 of the Act;
(h)Whether any international obligations would be breached as a result of the cancellation; and
(i)Any other relevant matters.
It follows that the issues to be determined by the Tribunal are:
(a)Does the ground for cancellation exist?; and, if so,
(b)Should the discretion to cancel the visa be exercised?
CONSIDERATION
The applicant’s evidence to the Tribunal, and various matters canvassed by the Tribunal with the applicant at hearing, included as follows:
(a)She was born in India and she arrived in Australia in December 2008. She arrived on a student visa and did a three month English course and then started a Certificate III in Hairdressing which she finished in approximately 2010. She then did a Certificate IV in Hairdressing, Salon Management and then a Diploma of Business and Management. By 2012 she had finished her study and applied for a Regional Sponsored Migration Scheme visa in 2012. However she withdrew that application because the salon she was intending to work at in relation to that application was shut down.
(b)She then applied for and was granted the Subclass 457 visa in 2013, which was only for one year. She was then granted another Subclass 457 visa, the subject of the application to the Tribunal, which was meant to continue until 30 September 2018, except that the Department has cancelled it. She had the same sponsor for both Subclass 457 visas. The business was new at the time of the first Subclass 457 visa.
(c)She applied for the job with the sponsor and liked the job so was happy to stay there longer. When she first started the business was a bit busier and then became a bit quieter. The business started in June/July 2013 but at that time she had a student visa so initially only worked 20 hours per week. When her first Subclass 457 visa was granted, she then commenced working full-time. She knew the owner of the business because he is also Indian. She had good references and videos to show of her experience when doing her study which assisted her getting a job.
(d)When she first started working at the salon, the previous owner (who had sold the business to the sponsor) stayed on and worked for two days per week. There were also about three or four other staff working there. She is not sure of their exact arrangements. There was no salon manager. Within about six months, all of the old staff left. One staff member was pregnant and left. The previous owner also stopped working there as did another staff member. There were a couple of other people but they ended up leaving. By the time she obtained her second Subclass 457 visa, the staff consisted of her and another full-time staff member, Shukal, and there were casual staff that sometimes came and went. When the other staff left, the business became a bit quieter because the staff who left took some of their clients with them.
(e)When she started working full-time, she was generally working a half day Monday, and a full day Tuesday, Wednesday, Thursday, Friday, Saturday with Sunday off. She generally did 11.00 am to 8.00 pm on Wednesdays and Thursdays. Other days the hours were usually 9.00 am to 5.00 pm. Saturdays were usually 9.00 am to 1.00 pm. However, hours did vary depending upon clients’ wants. The opening hours did vary. The times on the website for the salon were not necessarily correct. The days the Department came after 5.00 pm were the days she finished at 5.00 pm.
(f)She had an employment contract. She had a sick leave entitlement and she did take sick leave but did not take holidays. She did take some sick leave. She did not take leave for any other reasons. She did not take much sick leave because there were only two staff, six chairs and two basins. The salon is no longer operating.
(g)Other than on a few occasions when she might have been sick, she worked full-time after being granted a Subclass 457 visa. She did not have any holidays or time off for personal reasons. She did not ever need to take time off in relation to her daughter because she is in school. She and her husband arranged their work so that her husband could do school pick up.
(h)She was married in 2000 and has two children, a daughter aged 2007 and a son born in 2009. Her daughter has been living in Australia with them for the last six years and is in Grade 6 at MacGregor State School. Her son lives in India with her husband’s mother.
(i)Her family in India includes her mother-in-law, her husband’s brother, wife and two children. They all live in the same area, in India. Her mother and father, her two sisters and their families, all live in another area of in India, about two hours travel distance from her husband’s home area. Her brother lives in the United States of America. Her husband’s home town and her home town is where her parents live.
(j)Prior to coming to Australia, her husband was teaching computer studies and they also had some land for agriculture. Her husband’s brother still lives in their home town and has some agricultural interests.
(k)Her husband is working in Australia in a housekeeping/cleaning job.
(l)Since the visa was cancelled on 23 November 2016, she has been thinking to apply for another job and has been thinking of applying for permanent residency. She needed to work towards obtaining the minimum score for the required IELTS test, which she achieved in June 2017. She finished work for the sponsoring business in August 2016.
(m)She applied for another job with another job and found an employer who was willing to sponsor her but her visa was then cancelled so the new prospective employer cancelled the application.
(n)When she was granted the Subclass 457 visa, she understood that the conditions of the visa included that she needed to work 38 hours per week. She understood that she had to be continuously working; however, the owner sold the business in August 2016. She tried to get another job because she understood that it was a condition of her visa that she had to get another job. She applied online for other jobs but could not get any.
(o)The first year she was working full-time, she and Shukal had three or four clients each per day. The length of the appointment depended on what work the client wanted done. Colours take longer. Sometimes it was not always that busy. Sometimes it would be two or three clients per day. November/ December 2014 were quite busy because that is a busy time of year. In the times when it was not as busy, she would still be at work and use that time for ordering stock and cleaning etc. The business was not ever closed down nor was she sent home if, for example, it was not as busy. However, the opening hours did change from time to time depending upon clients’ requirements.
(p)The clientele remained about the same throughout 2014 to 2016, about three to four clients each per day. She did sometimes provide home service visits. This depended upon clients’ requirements. She might have done home visits three or four times per week, but when that was done, they always ensured a staff member remained at the salon.
(q)In relation to her statement in her statutory declaration dated 21 July 2017, where she commented that “Soon I observed that the business was very slow”, they had previously been doing six or seven clients a day but then it became four or five a day. The length of the appointment depended on the service. Colouring takes longer than cutting. It also depended on the length of the hair.
(r)When it was not busy, she made some suggestions to the owner as to how business could be improved, such as offering discounts or vouchers. However, she continued to work 38 hours per week because sometimes walk in clients came in.
(s)She was not at any time concerned that there was not enough work for her to continue to work full-time.
(t)When the sponsor closed the business, she approached another employer to get a new job because she was on a Subclass 457 visa. She did not seek another job until she found out that the sponsor’s business had closed.
(u)When queried as to the reasons why the visa should not be cancelled, she stated that people are ready to sponsor her because she is a good hairdresser but they are worried because she does not have a visa. She has talked to two to three employers. Mr Rihin Kumar Pathak is the director of a hair salon who is prepared to sponsor her. The company is called Durga Pty Ltd. She has been in contact with him in the last month but he has been sick and has not been able to get the nomination ready. She thinks he would give her a job offer if she had a visa.
(v)When queried as to whether she had a specific employer lined up in 2017, she responded there was no-one she had lined up. She said that everyone says that many employers would like to sponsor her but all are worried about her not having a visa. The Tribunal discussed with the applicant that at paragraph 19 of her statutory declaration, she stated that as at that date, she had an employer willing to sponsor her, in contrast to her evidence at hearing that she did not have anyone lined up in 2017.
(w)When queried as to why she had earlier stated that she had only been in contact with Mr Pathak in the last month if she had been in contact with him in 2017, she stated that she meets lots of people. The Tribunal raised a concern with the applicant that if her statements in her statutory declaration are different to what she now says, it means the Tribunal is unsure as to what it can believe.
(x)When she met Mr Pathak in 2017, he was thinking of buying another salon but had not yet done that. He was planning to do that within two or three months and would then be able to consider employing her. They had some issues and then recently he told her that the issues were resolved and he was planning to nominate her but he has been sick and then this morning he made the nomination for her. The applicant then showed the Tribunal a letter on her telephone and was requested to provide a copy of the letter to the Tribunal subsequent to the hearing. When queried, the applicant stated she did not have anything in writing from Mr Pathak from 2017. The Tribunal noted that the letter shown to the Tribunal was undated but discussed commencing work on 15 April 2018 pending completion of work rights and visa issues.
(y)She has had discussions with Mr Pathak and he can sponsor her as he is already a sponsor.
(z)The Tribunal discussed with the applicant that, in her statutory declaration, she states that that cancellation of her visa has arisen because of circumstances outside her control. However, she further stated that there was not enough work in the business for two employees and she raised the issue of slow business with the employer. The employer gave the same answer, that business was very slow. She discussed her concerns with the sponsor employer, as she was worried about losing the visa, and that is why she did not tell the Department. She was hoping that the business would improve. The Tribunal questioned why the applicant would have such concerns if there was in fact enough work to work full-time as she has stated in evidence at hearing. The applicant responded that there was not enough work for two people but she still did work full-time. She discussed with the employer the issues in that she discussed ideas for getting more work. When queried as to whether she held a concern that there would not continue to be enough work for her to work full-time, she stated that she did not if advertising/brochures or the like led to more work.
(aa)The Tribunal discussed with the applicant that the delegate noted in their reasons, which were provided to the Tribunal with the applicant’s application, that the decision to cancel the sponsorship and bar the sponsor for two years from making further applications as a standard business sponsor was due to a finding that the sponsor had provided false or misleading information about the status of its position and its need to sponsor staff. This finding was reached after two monitoring processes, in 2014 and 2015, both of which involved numerous site visits. It was noted that the information provided to the Department from the applicant and two other employees of the business, was that there had never been enough work to provide full-time employment for even one staff member. It was further noted that the applicant had been interviewed and stated that she and the other employee saw three to four clients a week. The Tribunal noted that the delegate had set out the basis upon which the sponsor’s sponsorship was cancelled and the applicant’s response to the NOICC provided by the applicant.
(bb)The Tribunal noted that a s.375A certificate had been issued by the Department in relation to certain information, some of which information was relevant to the Tribunal’s consideration. The Tribunal provided a copy of the certificate to the applicant and her representative and invited submissions on its validity. The Tribunal indicated it considered the certificate to be valid, and given that some of the information to which the certificate referred was of relevance to the issues before the Tribunal, the Tribunal indicated it wished to canvass the gist or particulars of that information with the applicant so that what she said in relation to that information could be taken into account. The Tribunal put to the applicant, pursuant to s.359AA of the Act, that there was certain information before it, specifically that, in addition to telling the Department at a site visit / interview that she saw three or four clients per week, the information includes that the site visit was on 3 December 2015, the applicant was interviewed and it was stated that the applicant and Shukal saw three to four clients per week. The information further includes that the applicant subsequently provided statutory declarations to the Department dated 16 February 2016 and 21 April 2016 and stated that “upon asking about the number of clients we do from the Immigration Officer, I replied we do three to four clients per day not three to four clients per week”. The Department indicated that it was not accepted that the applicant had stated three to four clients per day because there were contemporaneous notes of the site visit that the applicant had clearly stated three to four clients per week. The Tribunal noted that why that information is relevant is because the various different statements by the applicant, together with her evidence at hearing, means there is different information before the Tribunal and the Tribunal needs to make a decision about which information can be relied upon. The Tribunal noted that if it accepts, as the Department has noted, that the applicant said on the site visit that she only had three to four clients per week, that might cause the Tribunal concern in relation to whether in fact the applicant was complying with the conditions of the Subclass 457 visa, that is, working full-time. The Tribunal noted it might have concerns in relation to the inconsistency of the varied information before it, stated by the applicant at different times, in statutory declarations and in evidence before the Tribunal. The Tribunal noted its concern is two-fold: firstly as to what evidence can be relied upon and secondly, if accepted that she only had three to four clients per week, it has concerns about compliance with the requirement to work full-time as a condition of the Subclass 457, which could lead to a conclusion by the Tribunal to affirm the decision to cancel the visa. The applicant indicated that she understood the information and its relevance. She stated that if she said three or four clients per week, that is not possible, because if that is the total clients she saw there would not be enough for a salary. She maintains that she said three or four clients each person per day and that the Department made a mistake and misunderstood what she said. The Tribunal noted that such a conclusion was relevant to the conclusion by the Department about there not being a genuine need for the position. The applicant stated if there were only three to four clients per week, the sponsor would not have had the finances to pay their wages, which he did do. She was always paid on time.
(cc)The Tribunal put some further information to the applicant pursuant to s.359AA of the Act, specifically information that shows her sponsor employer’s business made significant losses in 2014, 2015 and 2016, of $20,000 or more. The Tribunal stated that that information is of relevance because one explanation as to why the sponsor nonetheless paid wages might be that only having three to four clients per week, and not having enough work for her position, contributed to the losses. The applicant stated that she is now aware of the sponsor’s business finances; all she knows is that she was paid on time. The Tribunal noted that those losses might be consistent with the fact of there being a downturn in the business because of there being only three to four clients per week. The applicant stated three to four clients per week would not even be enough to pay half of the salary for one person.
(dd)The Tribunal put some further information to the applicant pursuant to s.359AA of the Act, specifically information that on 10 December 2015, immigration officers attended at the business and were informed that the applicant was not at work on that day as she had had to go to the coast to do some paperwork for her visa application. The Tribunal noted that that information is relevant because it is inconsistent with her evidence to the Tribunal, and her statements in her statutory declaration provided to the Department dated 16 February 2016, that she never missed any work, except on a few occasions when she was sick, but for no other reason, and an inconsistency in the applicant’s evidence could cause the Tribunal to have a concern as to what information it could believe and as to the applicant’s credibility generally. The applicant responded that she just went to submit some paperwork. The Tribunal noted that the information included that she was not at work at all on that day. The applicant responded that the staff officer who had said that was afraid and that is why she said that and that Immigration always came on Thursdays. The Tribunal discussed with the applicant that given the different evidence from her it could still have concerns about what reliance it could have on her evidence.
(ee)The Tribunal put some further information to the applicant pursuant to s.359AA of the Act, specifically information that another employee of the business told the Departmental officers that there was no offsite work, which is inconsistent with the applicant’s evidence at hearing, and in her statutory declaration, that she did attend clients offsite. The Tribunal indicated that why this information was relevant was because it might cause the Tribunal to question what evidence it could rely upon or what weight it could put on the applicant’s evidence generally. The applicant responded that the other staff member was not doing outside work so she did not know. However, the Tribunal suggested that it might find it implausible that a co-worker in such a small salon would not be aware and mention the fact that fellow employees did offsite work. The Tribunal asked the applicant if there was anything further she wanted to say about that. She responded no.
(ff)In relation to the reasons why the visa should not be cancelled, as also canvassed in the applicant’s statutory declarations, they include that she has been living in Australia for ten years and has only returned to India once. Her husband’s and children’s visa are also dependent upon her and the visa cancellation has caused stress for her and them. She agreed that the visa cancellation would impact her daughter, who has been in Australia since 2012, and would find it difficult to return to India as she does not like it in India. She stated that going back to India would not be good for her children but she agreed that her son is living with her mother-in-law in India.
(gg)The Tribunal queried the applicant as to whether she specifically raised with her sponsor about there not being enough work for two full-time employees. The Tribunal noted that submissions provided to the Tribunal included that the applicant had raised that issue with her sponsor such that the Tribunal might again question whether there was enough work for two full-time employees.
(hh)The applicant confirmed that she applied for a new nomination on the basis that the sponsor’s business had closed down, not because there was not sufficient work. The Tribunal noted that the submissions on her behalf stated that she applied because there was not enough work for her. The applicant again responded that she applied for a new nomination because the business had closed down, not because there was not enough work.
(ii)The Tribunal discussed with the applicant the submissions that cancelling the visa would mean that her children would be separated from her parents. The Tribunal noted however that she had in fact been separated from her son for a substantial period of is life such that the Tribunal might not consider that a consequence of the visa being cancelled is that the family would be separated, but rather they would all be in India together, different to now where they are in fact separated. The applicant stated, however, that they would not be able to find a job easily in India because they have been in Australia for ten years. The Tribunal noted that the applicant’s two sisters and her husband’s brother lived in India and were able to make their livelihood and survive in India and questioned why it would be different for her and her husband. The applicant stated that if she settled in India in her young days she would have settled down and had a good job, as you can if you are under 30, but now she is above 30 and it would be hard to find a job. The Tribunal queried whether the applicant had made enquiries about whether she could get a job in India; the applicant responded that they are not thinking like that. The Tribunal suggested that in that case the applicant was making an assumption about not being able to find a job in India without making enquiries. The Tribunal suggested to the applicant that if she returned to India, she would be returning to India with abundant study and work experience in Australia which would hold the applicant in good stead in terms of getting a job. The applicant made no response to that suggestion.
Issue 1 - Does the ground for cancellation exist?

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)(g), which is, if satisfied, a prescribed ground for cancelling the visa that applies to the applicant.
The prescribed grounds for cancellation are set out in r.2.43 of the Regulations. In the present case, the ground in r.2.43(1)(l)(iv) is relevant. It states:
(1) In the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa… who is a primary sponsored person in relation to a person who is, or was, a standard business sponsor or party to a labour agreement (the sponsor) – that:
…
(iv) the sponsor has been cancelled or barred under Section 140M of the Act.
On the evidence, the Tribunal is satisfied that on 3 August 2016, the Department cancelled the applicant’s sponsor’s approval as a standard business sponsor under s.140M(l)(a) of the Act and barred the sponsor for two years from making future applications for approval as a standard business sponsor such that, as at the date of cancellation of the applicant’s visa, on 23 November 2016, a ground for cancelation of the applicant’s visa existed. The Tribunal finds accordingly and notes that this issue was conceded by the applicant at hearing.
As that ground does not require mandatory cancellation of the applicant’s visa under s.116(3) of the Act, the Tribunal must proceed to consider whether, as a matter of discretion, the power to cancel the visa should be exercised.
Issue 2 - Should the discretion to cancel the visa be exercised?
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 PAM3, ‘General visa cancellation powers’ as referred to earlier in these reasons.
The purpose of the applicant’s travel and stay in Australia; whether the applicant has a compelling need to travel to or remain in Australia
The applicant first arrived in Australia in December 2008 as the holder of a Subclass 572 student visa. She was subsequently granted the Subclass 457 visa, the subject of this application.
The purpose of a Subclass 457 visa was not to allow an applicant to remain in Australia to look for employment opportunities or improve their financial position or livelihood. Its purpose is to enable a business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. The Subclass 457 visa was one of limited duration related to working for a particular sponsor in a skilled occupation. If the applicant’s visa was not cancelled, it would have been expiring on 30 September 2018, and failing some action by the applicant to extend her authority to remain in Australia beyond that time, she would be required to leave Australia after that date.
Although the applicant initially came to Australia to study, the purpose of her continued stay in Australia, when granted the Subclass 457 visas, was to work for the life of the visas for the sponsor, being her approved standard business sponsor.
The applicant ceased employment with the sponsor in August 2016. The Tribunal accepts that the applicant acted promptly and sought a new sponsor and employment resulting in a nomination being lodged on her behalf in September 2016; however, it notes that application was withdrawn when the applicant’s visa was cancelled.
The applicant seeks that the visa cancellation be set aside as her ability to seek new employment in Australia is impeded because of the cancelled visa and she has an employer who is willing to employ her if her visa issues are resolved.
The Tribunal accepts that a visa cancellation could potentially impede the ability of the holder of the cancelled visa to secure new employment or secure a commitment from a potential employer to nominate the visa holder. The Tribunal takes into account that there is some negative impact upon the applicant’s employment prospects in this regard.
The Tribunal places limited weight on the applicant’s visa still having until September 2018 to run if the cancellation is set aside. However, that goes to the purpose of the applicant’s stay in Australia being temporary and soon due to expire in any event.
The Tribunal has taken into account the visa cancellation impeding the applicant’s further employment opportunities and the remaining time on the visa if the visa cancellation were set aside. However, the Tribunal finds that the purpose of the applicant’s continued stay in Australia on a 457 visa no longer exists. She no longer works for the sponsor and has not done so since August 2016. Although there is some prospect of future employment, and the cancellation impacts negatively as regards prospective employers nominating her given that visa status, the Tribunal places substantial weight on the purpose of the applicant’s continued stay in Australia no longer existing.
Circumstances in which ground of cancellation arose. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.
The Tribunal discussed at length with the applicant the circumstances giving rise to the cancellation of the applicant’s visa and in particular the issue of whether there was genuinely a need for her full-time position. After having considered all of the evidence, the Tribunal is satisfied that cancellation of the sponsor as a standard business sponsor was beyond the visa holder’s control. The Tribunal places substantial weight on that in the applicant’s favour.
The extent of compliance with visa conditions and co-operation with the Department
Whilst the Tribunal raised concerns with the applicant about whether she continued in employment with the sponsor until August 2016, given the suggestion that there was not enough work available for full-time employment of two employees, the Tribunal accepts the applicant’s evidence that she continued being paid up until August 2016 and on this basis is satisfied that she continued to work full-time for the sponsor until this time.
However, on the applicant’s evidence, she ceased worked in August 2016 and has not worked since that time such that she is in breach of condition 8107(3)(b) attached to the visa, which provides that the period of ceased employment must not exceed 90 consecutive days.
However, as already canvassed, the Tribunal accepts that the circumstances in which the applicant ceased employment were beyond her control and similarly so are the circumstances leading the applicant to breach condition 8107. Further, the Tribunal accepts that the applicant has made some efforts to obtain further employment, impeded by her visa status.
Concerns were also raised by the Tribunal with the applicant about the inconsistency of the information provided to the Department at a site visit, at which the applicant stated that she saw three to four clients per week compared with further statements by her that it was three to four clients per day. The Tribunal is prepared to give the applicant the benefit of the doubt and accept that she co-operated with the Department and was truthful with the Department, and places some weight on that conclusion in the applicant’s favour.
Otherwise, there is no evidence before the Tribunal of the applicant having breached any other visa conditions. That stands to the applicant’s favour.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the visa holder and any family members
The Tribunal accepts that the applicant and her husband have now been in Australia for over nine years and that their daughter has been in Australia for over six years and is assimilated in to the Australian education system, and currently in grade 6. Notably, however, the applicant’s son, although born, in Australia, has resided in India throughout his life, with the applicant’s mother-in-law. Whilst it may well have been the intention of the applicant to bring her son to Australia to join them when he reached school age, that has not occurred, and the current separation of the applicant from her son is of her choice and is not a factor in her favour in consideration of whether the discretion to cancel the visa should be exercised.
The Tribunal accepts that the applicant and her family will suffer some hardship if they return to India but does not accept that they will not be able to make a livelihood in India. The Tribunal accepts that it may not be the same job or same salary or standard of living as in Australia. However, as discussed with the applicant at hearing, the Tribunal does not accept that the applicant and her husband and family will not be able to make a livelihood in India, as have done their siblings, notwithstanding that they are now aged over 30 and have been absent from India for many years. In the applicant’s favour in this regard, she has considerable qualifications and work experience from Australia that would hold her in good stead. Notably, the applicant’s evidence was that she had not made enquiries in that regard because she did not want to think about those matters. As such there is no evidence before the Tribunal that would support a finding that the applicant will encounter insurmountable difficulty re-establishing herself and her family in India where their extend families both live and are able to maintain livelihoods.
As already canvassed, a Subclass 457 is in any event of limited duration related to working for a particular sponsor in a skilled occupation. It does not create an expectation of a permanent or extended life in Australia or an expectation of ongoing financial or other advantage by reason of being in Australia.
Having taken all of these matters into account, the Tribunal places limited weight on any hardship that may be caused to the applicant and any family members.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The applicant is currently on a bridging visa because of this review process. In the absence of the applicant making another successful visa application, or the Minister granting a visa, ultimately she will not have authority to remain in Australia. If so, the applicant will have the opportunity to depart Australia. Whilst her continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.
Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s.116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore. The Tribunal has taken that potential limitation into account. However, these are intended legislative consequences of cancellation and they are consistent with the objectives of the migration program.
Accordingly, the Tribunal is not satisfied that there are consequences of the cancellation which mean that the visa should not be cancelled.
Whether there would be consequential cancellations under s.140 of the Act
The Tribunal accepts that the cancellation will result in the consequential cancellation of her husband’s and children’s visa. As noted, the Tribunal is satisfied that the applicant is well educated and has gained skills and experience during her stay Australia. These factors, in the Tribunal’s view, would advantage the applicant and her husband and family in their home country. Therefore, while the Tribunal acknowledges the hardship that the applicants may initially experience upon return to their home country, it considers that they will be able to overcome any such hardships and re-establish themselves in their home country.
Whether any international obligations would be breached as a result of the cancellation
In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CROC) and the International Covenant on Civil and Political Rights (ICCPR).
It was submitted that it would be in the best interests of the applicant’s children, consistent with CROC, that the applicant’s children live with their parents and not be separated from them. The Tribunal accepts that the applicant’s daughter has been living in Australia for six years and is well settled in Australia. However, cancellation of the visa does not mean that she will be separated from her parents. Conversely, what it likely means is that the whole family will be reunited in India, where the applicant’s son has been living separately from the applicant, her husband and her daughter, albeit with the intention that he join them in Australia, as did their daughter, for schooling.
The Tribunal is not satisfied that Australia will breach any international obligations as a result of the cancellation.
Any other relevant matters
It was submitted that the Tribunal should have regard to other applications decided by this Tribunal in which it was found that the circumstances leading to cancellation in which the ground of cancellation arose were found to be beyond an applicant’s control, and Departmental policy, which suggest that in that case a visa should not be cancelled. As discussed with the applicant’s representative at hearing, other decisions of the Tribunal and Departmental policy suggesting that a visa should not be cancelled where the circumstances giving rise to the cancellation of the visa were beyond a visa holder’s control, whilst of some benefit, are not binding upon the Tribunal, and every matter needs to be looked at in light of its own particular and unique circumstances. It was noted that there are also previous decisions of the Tribunal where the decision has been to affirm the decision to cancel the visa notwithstanding a finding that the circumstances giving rise to the cancellation of the visa were beyond a visa holder’s control.
The Tribunal has considered this matter in light of the applicant’s own particular circumstances as in the Tribunal’s view it is required to do so, so as not to fetter the discretion to be exercised. The Tribunal has considered and weighed up all of the relevant circumstances in this case.
The Tribunal places substantial weight in the applicant’s favour on its finding that the circumstances in which the cancellation arose were outside of the applicant’s control, being the sponsor’s cancellation as an approved standard business sponsor, not being the applicant’s fault. The Tribunal also places some weight on the applicant’s evidence that her visa status has impeded further nomination and employment opportunities. The Tribunal also places some weight on the fact that there will likely be some hardship on the applicant and her family if the visa is cancelled, including financial, emotional and psychological. The Tribunal also places some weight on there still being approximately four months of the original visa duration to run and the applicant not having breached visa conditions other than for reasons beyond her control.
However, balanced against those matters is that the purpose of the applicant’s continued stay in Australia, to fill a particular position for a particular sponsor, no longer exists. Further, despite the applicant’s, her husband’s and her daughter’s extended residence in Australia, the Tribunal is not satisfied that they would not be able to re-establish themselves in their home country, where their son currently resides with his grandmother, and their extended families successfully live, albeit that this is not an option of their choosing.
Having regard to all the evidence before it, and balancing the matters both in favour of setting aside the delegate’s decision and affirming it, the Tribunal concludes that the correct and preferable exercise of its discretion favours affirming the delegate’s decision to cancel the applicant’s Subclass 457 visa.
Conclusion
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
Secondary applicants
As discussed with the applicant and her representative at hearing, the only decision that is before the Tribunal is the decision with respect to the applicant. The second, third and fourth-named 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.
Conclusion
Considering the circumstances as a whole, the Tribunal concludes that the applicant’s 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.
Susan Trotter
Member

[2018] AATA 2337

24 May 2018

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