Patel (Migration)

Patel (Migration) [2017] AATA 308 (24 February 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Payalben Sejalkumar Patel
Mr Sejalkumar Ganeshbhai Patel
Miss Aayushi Patel
CASE NUMBER:  1613774
DIBP REFERENCE(S):  BCC2016/2561667
MEMBER:Antonio Dronjic
DATE:24 February 2017
PLACE OF DECISION:  Melbourne
DECISION:The tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
The tribunal has no jurisdiction with respect to the other applicants.
Statement made on 24 February 2017 at 11:55am

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Sponsorship cancelled – Work for related entity without approved sponsorship – Breach not deliberate – Child born in Australia – Sponsor’s advice to Department – Opportunity to seek further sponsor – 3 years exclusion period – Ability to re-establish life in India
LEGISLATION
Migration Act 1958, ss 48, 116(1)(b), 140(1), 348
Migration Regulation 1994, r 2.12, 2.43

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80
Re Drake (No. 2) (1978-1980) 2 ALD 634
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
Visnumolakala v Minister for Immigration [2006] FMCA 1209
Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767
Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 22 August 2016 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant breached condition 8107(3)(b) as the period during the applicant ceased employment exceeded 90 consecutive days. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the tribunal is the decision with respect to the first named applicant. The other applicants’ visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the tribunal has no jurisdiction with respect to them.
Background to the cancellation of the applicant’s visa
The decision record of 22 August 2016 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The tribunal summarises those reasons and findings as follows:
·On 27 May 2014, the applicant was granted a subclass 457 Business (Long Stay) visa to remain valid until 27 May 2018;
·The standard business sponsor who most recently nominated the applicant to work as a Customer Services Manager was Global Traffic Management Pty Ltd;
·The department received advice that Global Traffic Management Pty Ltd had ceased to operate and the Standard Business Sponsorship (SBS) Agreement was cancelled on 29 August 2014;
·The nominated occupation was not the one specified in the relevant instrument referred to in paragraph 8107(3A) that would exempt the applicant from having to comply with the requirements of paragraph 8107(3)(a);
·A notice of intention to consider cancellation (‘NOICC’) was issued on 12 August 2016;
·On 19 August 2016, the applicant submitted her response to NOICC stating that she only become aware of sponsorship cancellation for Global Traffic Management Pty Ltd after receiving the NOICC; that DIBP was informed that she will be working for an associated entity Global Traffic Australia Pty Ltd; that she continued to work for the associated entity of her ‘initial sponsor’ Global Traffic Management Pty for the period of next two years; that, after she received NOICC, DIBP monitoring case officer advised her employer Global Traffic Australia Pty Ltd to lodge new business and that Global Traffic Australia Pty Ltd was under DIBP monitoring and requires extension of time to lodge new nomination;
·On 22 August 2016, the delegate proceeded to cancel the applicant’s visa.
The applicants applied to the tribunal on 29 August 2016 for review of the visa cancellation and with their application submitted a copy of the primary decision record.
On 6 January 2017, the tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 22 February 2017.
On 20 February 2017, the applicant’s representative submitted:
·Legal submissions citing several AAT cases where the tribunal exercised its discretion and reinstated a subclass 457 visa; submitting that the former visa holder was not aware of changes in the business structure and continued to work at the same premises performing the same job and that the change in business structure was beyond applicant’s control. The representative addressed discretionary considerations and submitted that the tribunal should conclude that the visa should not be cancelled;
·The applicant’s Statement (dated and signed version of the exactly same statement was latter submitted at the hearing) reiterating that she and her employer (she only become aware of sponsorship cancellation for Global Traffic Management Pty Ltd after receiving the NOICC) only become aware of sponsorship cancellation for Global Traffic Management Pty Ltd after receiving the NOICC; that her employer informed her that DIBP visited the business in November 2015 but were not informed of any sponsorship cancellation; that she continued to work for her employer until her visa was cancelled; that she saw a copy of the letter dated 29 July 2014 her employer sent to DIBP only after her visa was cancelled and when she accessed the tribunal and DIBP files; that the company’s logo remained the same; that the business name ‘Global Traffic Management’ was only cancelled on 16 December 2016; that her PAYG certificate ending on 15 November 2015 shows that she has been paid wages by Global Traffic VIC Pty Ltd; that her PAYG certificate ending 30 June 2016 shows that she has been paid by ‘Global Traffic Australia Pty Ltd T/A Global Traffic Management; that she resumed working for her employer after no work condition was removed from her bridging visa ‘E’; stating that she neither deliberately breached the condition of her subclass 457 visa nor was she aware that she was technically breaching her visa condition as she knew nothing about the changes in the business structure; that the breach of condition was cause by the factors beyond her control; that her child was born in Australia; that the life for her family would be so severe if she was forced to leave Australia and that she has no future in India;
·Copy extract from ASIC database extracted on 10 February 2017 for Global Traffic Management Pty Ltd as evidence of the business being under external administration;
·Copy extract from ASIC database evidencing that a business name Global Traffic Management was cancelled on 16 December 2016;
·Copy extract from ASIC database related to the entity ‘The Trustee for Global Traffic (VIC) Unit Trust as evidence of its current registration with the ASIC;
·Copy extract from ASIC database related to the entity Global Traffic Australia Pty Ltd as evidence of its current registration with the ASIC;
·Copy applicant’s response to NOICC dated 19 August 2016 (previously submitted to the department);
·Copy letter from Global Traffic (VIC) Pty Ltd dated 29 July 2014 as evidence that Mr Perry Meka informed the department of changes in the business structure; that employees were advised of change of ABN number as of 1 July 2014 and have completed new Tax Declaration Forms; that the new ABN number for Victoria is xxxx192 and that the Victorian State entity is called Global Traffic (VIC) Pty Ltd. The letter further states that ‘we continue to lawfully operate our business in Australia and believe we continue to satisfy the criteria for approval as a standard business sponsor..’
·Sample of job worksheet dated 10 February 2017 as evidence that the new legal entity still uses the same logo (featuring Global Traffic Management Pty Ltd);
·Undated photograph depicting a company vehicle with the logo Global Traffic Management;
·Copy applicant’s PAYG certificate for the period from 1 July 2015 to 15 November 2015 stating Global Traffic VIC Pty Ltd as a Payer’s name;
·Copy applicant’s PAYG certificate for the period from 1 July 2015 to 30 June 2016 stating ‘Global Traffic Australia Pty Ltd T/A Global Traffic Management as Payer’s name
The applicants appeared before the tribunal on 22 February 2017 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.
The tribunal began the hearing by explaining the role of the tribunal and the purpose of the hearing. The tribunal explained why it does not have jurisdiction in respect of the secondary applicants. The tribunal further explained that the review applicant’s visa was cancelled under s.116 (b) of the Act as the delegate concluded that she had not complied with the condition of her visa.
The tribunal raised additional issue with the applicant. According to the primary decision record submitted to the tribunal by the applicant, her statement and written submissions prepared by her representative, Global Traffic Management Pty Ltd SBS Agreement was cancelled by the department on 29 August 2014. The tribunal informed the applicant that another ground for cancellation may be applicable in this case as prescribed by s.116(1)(g). The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43 (1)(l)(IV) is relevant. (the sponsor has been cancelled or barred under section 140M of the Act).
The tribunal further explained to the applicant that, if satisfied that the ground or grounds for cancellation is made it out, the tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy, as set out in the departmental guidelines. The applicant confirmed that she understood the explanation.
The applicant is 32 years of age, married national of India. She has a five years old daughter who was born in Australia. Her three sisters and parents live in India and neither she nor her husband has any relatives in Australia. Prior to arriving in Australia in November 2008 as a holder of a Student visa, she and her husband lived at her husband’s parents’ house, Neither she nor her husband own a house or land in India.
Both she and her husband completed Bachelor of Commerce Degrees in India. Husband worked at a factory for more than 5 years and the applicant was never employed in India.
Upon arriving in Australia, the applicant completed Certificate III and IV in Pastry. She continued her studies and by late 2013, she successfully completed both Diploma and an Advanced Diploma in Business Management. Her husband is and has been employed in Australia for more than 6 years (hospitality and factory work).
The applicant confirmed that she was granted a subclass 457 visa on 27 May 2014; that she received the visa grant letter from the department explaining the conditions imposed on her subclass 457 visa; that her sponsor was Global Traffic Management Pty Ltd and that her nominated occupation was Customer Services Manager. She commenced her employment at the sponsoring business on 1 July 2014. The main office of Global Traffic Management Pty Ltd was in Shepparton and she worked at a depot located at Hoppers Crossing. From January 2016, the business had only one depot for the State of Victoria and the applicant was relocated to Nunawading. Her annual salary was $54,900 including superannuation. Her wages were paid weekly by direct deposit into her Commonwealth Bank account.
I noted that she has submitted PAYG statements to the tribunal with her review application. According to PAYG certificate for the period from 1 July 2015 to 15 November 2015, her employer was stated to be Global Traffic VIC Pty Ltd. I inquired whether the applicant made any inquiries with her employer upon realising that her wages are now paid by different legal entity (Global Traffic VIC Pty Ltd and not Global Traffic Management Pty Ltd). She stated that her employer told her that they already notified the department of changes in a business structure.
The applicant confirmed that she submitted her written statement which she adopted by inserting her signature and date. She reiterated that she only become aware of sponsorship cancellation for Global Traffic Management Pty Ltd in August 2016, after receiving the NOICC from the department.
I noted that with her submissions, she provided a copy letter from Global Traffic (VIC) Pty Ltd dated 29 July 2014 as evidence that the business owner informed the department of changes in the business structure. I observed that in the same letter, the business owner informed the department that employees were advised of change of ABN number as of 1 July 2014 and have completed new Tax Declaration Forms. The applicant confirmed that she was informed of the change of ABN number and that she completed new Tax Declaration Form at the time. She explained that her employer told her that everything else will remain the same and that she will continue to work at the same position.
She confirmed in her evidence that in August 2016 she saw the letter from Global Traffic (VIC) Pty dated 29 July 2014 that was sent to the Department. She confirmed that in August 2016 she become aware that Global Traffic Management Pty Ltd ceased operating in August 2014 and three new companies were set up. She continued to be employed by Global Traffic (Vic) Pty Ltd at a depot located in Nunawading.
I inquired and the applicant stated that her current employer, Global Traffic (Vic) Pty Ltd, never sponsored or nominated her to work as a Customer Services Manager. I inquired if she ever asked her current employer to sponsor and nominate her for a position of a Customer Services Manager and she stated that she did not.
I inquired what she did after August 2016, after she become aware that Global Traffic Management Pty Ltd sponsorship was cancelled, to find alternative employer willing to sponsor and nominate her for the position within their business. I noted that she had more than 6 months to find alternative Australian business that is approved sponsor and that is willing to nomine her for the job. She stated that she is still looking for a company that will sponsor and nominate her for the job.
I observed that her last sponsor, Global Traffic Management Pty Ltd, who successfully nominated her for the position within their business ceased operating in August 2014 and that the Department proceeded to cancel her visa in August 2016.
I asked and the applicant answered that, as of the day of the tribunal hearing, she is not sponsored or nominated by any Australian business. She reiterated that she is still looking for a company that will sponsor and nominate her.
I explained to the applicant that, based on the evidence before me, I am satisfied that the grounds for cancellation in s.116(1)(b) and 116(1)(g) are made up and that I will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.
I invited the applicant to state if there any other matters she wants me to consider, apart from those stated in her evidence and written submissions provided to the tribunal. She stated that she does not wish to raise any other matters.
I noted that the applicant’s representative in his submissions stated that the applicant will be subject to PIC 4013 and PIC 4014 which will result in a 3 years exclusion period. The applicant’s representative conceded that the applicant will not be subject to PIC 4013 and submitted that she may be subject to PIC 4014.
Upon my invitation, the representative submitted, acknowledging that I am not bound by the decisions of this tribunal that the tribunal in some cases was prepared to exercise its discretion if the breach of condition was beyond applicant’s control. He accepted in his oral submission that the breach of condition occurred in the present case. He further submitted that it is clear from the applicant’s oral evidence that she only become aware of the sponsorship cancellation for Global Traffic Management Pty Ltd and business restructure in August 2016.
He submitted that it almost impossible for a person who had his or her visa cancelled to find a new employer and that is difficult even for a person who has a valid 457 visa to secure new employer within 90 days. I noted that the purpose of granting a 457 visa is not to provide the applicants with the opportunity to look for employment in Australia. The purpose of granting a subclass 457 is to enable a business to sponsor a skilled worker if they cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. I further observed that the visa was granted in May 2014 and would, but for the cancellation, cease in any event in May 2018.
The representative submitted that if her visa is re-instated she would then have 90 day to find new employer who is approved business sponsor and who is willing to nominate the applicant for the position within that business.
The representative further submitted that the business is still trading under the business name of Global Traffic Management and still uses the same logo on company’s documents. I noted that the applicant provided ASIC extract to the tribunal indicating that this business name was cancelled in December 2016. He further submitted that a distinction should be made between people who deliberately breach 8107 condition and this applicant who was not even aware of the breach until August 2016; who continued working at the same position and who has not done anything deliberately to bring about these consequences. He asked that the tribunal to exercise its discretion and give the applicant an opportunity to at least try to find another employer so that her past eight years in Australia are not waisted.
For the following reasons, the tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 grounds set out in s.116(1)(b) and s.116(1)(g). If satisfied that the ground or grounds for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Does the ground for cancellation exist?

A visa may be cancelled under s.116(1)(b) if the Minister or the tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 attached to the applicant’s visa. This condition in 8107(3)(b) requires that if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days.
I find that the nominated occupation was not the one specified in the relevant instrument referred to in paragraph 8107(3A) that would exempt the applicant from having to comply with the requirements of paragraph 8107(3)(a).
Based on the evidence before it, including the oral evidence from the applicant, I find that the applicant ceased employment with Global Traffic Management Pty Ltd on 29 August 2014 when the business ceased operating. Accordingly I find that the review applicant did not comply with condition 8107(3)(b).
The applicant gave evidence and conceded in her submissions that Global Traffic Management Pty Ltd sponsorship approval was cancelled by the department on 29 August 2014. Accordingly, a ground prescribed in r.2.43(1)(l)(iv) of the Migration Regulations 1994 for cancelling the visa applies to the visa holder. For these reasons, the tribunal is satisfied that the ground for cancellation in s.116(g) exists.
As neither of the grounds stated above require mandatory cancellation under s.116(3), the tribunal must proceed to consider whether the power to cancel the visa should be exercised.
Consideration of discretion
There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.
The tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2]
[1] See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634
[2] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209 Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 (at [55]
Nevertheless, the tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the tribunal has also taken into account the submissions and evidence it received from the applicant.
The purpose of the visa holder’s travel to and stay in Australia
The tribunal finds that the purpose of the applicant’s stay in Australia was to work as a Customer Services Manager for Global Traffic Management Pty Ltd on a temporary basis. The applicant was unfortunate to lose her job at the sponsoring business in August 2014 when the business ceased its operations. The applicant continued to work for a newly created business Global Traffic (Vic) Pty Ltd. According to her evidence, this legal entity never sponsored or nominated her for the position of a Customer Services Manager.
Based on the evidence before me I accept that the applicant was not aware until August 2016 that the sponsorship agreement for the Global Traffic Management Pty Ltd was cancelled by the department in August 2014.
I further accept that, despite being informed by her than employer in July 2014 of change of ABN number; despite completing the new Tax Declaration form and despite receiving her wages from a different legal entity from one which sponsored her for this visa, that the applicant was not aware of the extent of business restructure that took place in 2014. I accept her evidence that she was reassured by her employer that their arrangements will remain the same. She continued to work in her nominated occupation at the same premises until January 2016. I accept that the newly created entity continued to use the same logo as her original sponsor, Global Traffic Management.
The applicant claims in her evidence that she is looking for a company that is willing to sponsor and nominate her for the job. There is no evidence before me that she received any job offers or at least written commitment from an Australian business that is prepared to sponsor and nominate her. Her representative submitted and I accept that it is very difficult for a person who does not hold a substantive visa to find a job in Australia.
According to her evidence, the business she is currently working for (Global Traffic (Vic) Pty Ltd) never sponsored or nominated her to work at the business. She gave evidence at the hearing that she never asked her current employer to do so. I note that in her response to NOICC of 19 August 2016, copy of which was provided to the tribunal by the applicant, she stated that Global Traffic Australia Pty Ltd was preparing to nominate her but because this company was under DIBP monitoring, they needed extension of time to lodge the nomination application.
In her evidence the applicant acknowledged that, as of the day of the tribunal’s hearing, she was unable to find an Australian business willing to sponsor and nominate her for the position within that business. Based on the evidence before me, I am satisfied that the applicant had more than 6 months to secure employment with alternate Australian business sponsor.
I observe that the applicant applied for and was granted work rights by the department in September 2016. Based on the evidence before me, I am satisfied that the applicant had a reasonable opportunity to secure employment with an Australian company who is an approved standard business sponsor and who successfully nominated the applicant for a position within the business. It is uncertain if and when the applicant will be able to find alternate Australian employer who is an approved business sponsor and who will be willing to nominate the applicant for the position within the business. I have taken into consideration the fact that the applicant’s visa would, but for the cancellation, ceased on 27 May 2018.
I observe that the department did not proceed to cancel the applicant’s visa until 22 August 2016 despite having the information that the sponsoring business ceased to operate in August 2014 and that Global Traffic Management Pty Ltd sponsorship approval was cancelled by the department on 29 August 2014.
The purpose of granting a subclass 457 is to enable a business to sponsor a skilled worker if they 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 is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation. I find that this purpose no longer exists as the applicant ceased working for her sponsor in August 2014. I give significant weight to this consideration.
The reason for and extent of the breach
The applicant’s visa was subject to 8107 condition. I am satisfied on the evidence before me that the applicant was aware of the condition imposed on her 457 visa. The ground for cancellation arose 90 days after the applicant ceased working with his sponsoring employer in August 2014.
I accept that the applicant did not voluntarily cease working with his sponsoring employer. The applicant had an opportunity to rectify the breach by commencing employment with another sponsor that successfully nominated the applicant for a position within 90 days. This was contained in a condition of her visa which stated if the employment ceases it ‘must not exceed 90 consecutive days’.
In this case, I accept that the applicant was not aware until August 2016 that the sponsorship agreement for the Global Traffic Management Pty Ltd was cancelled by the department and that sponsoring business ceased its operations in August 2014.
However, as of the day of this decision, the applicant had already being without sponsor that successfully nominated her for a position within the business for more than two years. She was aware, at least as of August 2016, that she needed to find employment with alternate Australian business sponsor.
I find that the applicant’s failure to commence employment with a new business sponsor that successfully nominated her for a position within the business after more than two years since the original cessation of employment and six months after she become aware that sponsorship agreement for the Global Traffic Management Pty Ltd was cancelled by the department and that sponsoring business ceased its operations represents a significant breach of condition 8107.
Circumstances in which ground of cancellation arose.
Whilst I accept that the circumstances in which the ground for cancellation arose are not the fault of the applicant, and are to that extent beyond her control, nevertheless it is in the context of a temporary visa for a specific purpose which has now ceased.
Past and present conduct of the visa holder towards the department
There is no evidence before me that the applicant previously breached visa conditions or that she was not co-operative with the Department. This is the consideration that favours the reinstatement of the applicant’s visa.
Degree of hardship that may be caused; whether there would be consequential cancellations under s.140
The applicant claims that the visa cancellation would cause hardship to her and her family as she will be affected by PIC 4013 and PIC 4014 and subject to a 3 years exclusion period. The applicant’s representative conceded that the applicant will not be affected by PIC 4013 and may be affected by OIC 4014. I am satisfied that, if the applicant’s visa remains cancelled, he will not be affected by a ‘risk factor’ prescribed in Schedule 4013 and find that this consideration does not favours the reinstatement of the applicant’s visa.
The applicant claims that she has no future, home or work in India. I accept that that the applicant has been living in Australia since November 2008 and that both she and her family established ties to Australian community. I accept that leaving Australia may involve some hardship to the applicant and her family but I am not satisfied that this hardship would be significant. I do not accept that the applicant would not be able to re-establish herself in India given her qualifications, employment background and employment experience. I have taken into consideration the applicant’s evidence that her siblings and parents as well as her husband’s siblings and parents live in India.
Balanced against any potential hardship to the applicant and his wife that may result from the visa cancellation is the fact that the applicant was granted a temporary visa which create no expectation of remaining in Australia permanently. The premature cessation of her visa may result in the applicant being unable to take full advantage of the opportunity to work in Australia on a temporary basis, and possibly dashed her plans for obtaining permanent residence in Australia. I do not regard the degree of hardship to the applicant and her family to be a significant factor as she was aware from the time of 457 visa grant that she will be allowed to work in Australia for a limited time.
In any event, the applicant is not prevented from re-applying for 457 visa once she finds the new employer who is approved as a standard business sponsor and has the approved business nomination in relation to the applicant.
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 as a result of the current review process. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow her to remain in Australia. If that is the case she and her family have the opportunity to depart Australia. Whilst their failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.
I am mindful that 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 section 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.
Whether there would be consequential cancellations under s.140
Whilst the applicant’s husband’s and child’s visas are also cancelled as a consequence of this cancellation, I note that the consequence will not result in separation of the applicant from her husband and child.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa 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 Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).
There is little in the evidence before me that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements. I find that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s visa.
The impact on any victims of family violence
There is no evidence before me regarding this matter.
Having regard to the findings above and the circumstances of the case as a whole, I am satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. I am satisfied that cancelling the applicant’s visa is the correct and preferable decision.
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.
Antonio Dronjic
Member

[2017] AATA 308

24 February 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies

Natural Justice