Patel (Migration)

[2024] AATA 2219

Patel (Migration) [2024] AATA 2219 (14 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Yamini Pratikkumar Patel
Mr Pratikkumar Nareshkumar Patel
Master Samrat Patel
Master Eric Patel

REPRESENTATIVE:  Mr Udaykumar Mishra (MARN: 0215810)

CASE NUMBER:  2404200

HOME AFFAIRS REFERENCE(S):         BCC2023/6444268

MEMBER:Alison Mercer

DATE:14 June 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s subclass 482 - Temporary Skill Shortage visa.

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

Statement made on 14 June 2024 at 3:38pm

CATCHWORDS

MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 - Temporary Skill Shortage – Standard Business Sponsor (SBS) cancelled and barred for employer – applicant actively seeking a new employer and nomination – family health issues – emotional and financial hardship – spouse’s senior managerial position – best interests of the children – decision under review set aside       

LEGISLATION

Migration Act 1958, ss 5(1), 48, 116, 140, 348, 359
Migration Regulations 1994, r 2.43

CASES

Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80
Wan v MIMA (2001) 107 FCR 133

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 March 2024 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) subclass 482 - Temporary Skill Shortage visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(g) on the basis that prescribed cancellation grounds under r.2.43(1)(l)(iv) of the Migration Regulations 1994 (Cth) (the Regulations) existed; namely, that the applicant’s sponsoring employer had had its approval as a Standard Business Sponsor (SBS) cancelled by the Department and had been barred for 5 years from seeking approval again as an SBS. The delegate considered whether factors existed that weighed against cancellation of the applicant’s visa, taking into account information provided by her that the SBS cancellation and bar decision was outside her control, that she was actively seeking a new employer and that employer was about to nominate her, and that her 2 children were born in Australia and it would cause significant financial and emotional disruption to the family if they had to depart Australia. The applicant also noted that one of her sons had recently required emergency dental surgery. The delegate concluded that these factors did not outweigh the grounds for cancellation of the applicant’s subclass 482 visa. The delegate therefore cancelled the applicant’s subclass 482 visa, and the visas held by her family unit members were automatically cancelled as well as a result.

3. The Tribunal received a review application from the applicants on 6 March 2024. It was accompanied by a copy of the decision and an authority by which the applicants appointed a registered migration agent, Mr Uday Mishra, as their representative and authorised recipient for correspondence.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. 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.

6. On 29 April 2024, the Tribunal wrote to the applicants via their agent to invite them to attend a hearing on 31 May 2024. They were asked to provide any additional material in support of their case by 24 May 2024.

7. On 24 May 2024, the Tribunal received a statement from the applicant setting out her immigration history and what action she had taken upon receiving notification that the Department was considering cancelling her subclass 482 visa. The applicants’ agent also provided evidence that a new company, Aum Traders Pty Ltd, had lodged a nomination of the applicant with the Department on 3 May 2024. The nomination was for a subclass 482 visa in the Medium Term stream. The agent also provided copies of payslips issued to the applicant by her former employer, Astar Caterers Pty Ltd.

8. In her statement, the applicant made the following points:

   …

   31/10/23   Australian boarder Force notify that my Approved sponsor Astar Caterers Pty Ltd has no longer sponsor person for Visa 482. They got 5 years bar.

   From the day I received letter we had discussion at home and the start looking for new workplace and employer. I never received anything or notice from my employer that my employment is terminated. So, I though it’s better to continue work until I will not find new employer. As per letter I received.

   Other side My son Samrat got his teeth infection was on very bad pick, and we visited Dentist on 22/11/23, 15/12/23 and ongoing.

   We were keep visited Dentist on a basis 05/01/24, 16/01/24 meanwhile.

   Somewhere around this time I nearly had 2-3 employer who want to support me and give me work. It took long to find trustworthy employer. It took long because since November 2023 to 2^nd week of January 2024. We had employer but over the x-mas they were busy and were they focusing on their business.

   10/01/24   I received email from Department of Home Affairs- Verification of contact details, gave five calendar days to reply. I replied on 12/01/24.

   15/01/24   I received Notice of Intention to Consider Cancellation (NOICC), we realise it’s a serious matter. I appointed Mr. Tony Dyson as my consultant (Dyson and associates) to respond on my behalf and to take over my case.  He replied on 22/01/24 explaining that a business known as Bunyan Tree Indian Restaurant are ready to sponsor me and we need some time for all the further process for nomination. I also applied for student visa on 22^nd January 2024.

   Once the NOICC letter received I got clear vision that until I don’t have new employer I need to work with my old employer and look for new one. There was not much information or clear guidance available for me to act upon. Upon my search it says 60 days is available if you stop working with current employer.  When the link for 404 was clicked the response was “page not found error.” (please see attached 1 as below), this link was provided to me in 140ZH letter.

   I did try to search information available on the website but it’s saying if you stop working then you have 60 days to get new employer (please see attached 2 as below), that’s why I never stopped working with him and until I have new employer and then I received NOICC.

   23/01/24   Granted a further five days to respond my NOICC. I/we provided the required information on 25^th and 28^th January with attached documents along with written response to support my current situation.

   In the meantime, my son Samrat suffering from his dental problem. We went to Royal Dental hospital on Emergency on 20/01/24. After examining my son by Dentist, they say Samrat’s other teeth might be infected, and it needs to extracted ASAP. For that he needs to go under Dental surgery as a priority. We got 07/02/24 date for further examination even he was in P2 priority.

   On the other hand, I had been meeting my Bunyan Tree Indian Restaurant owner and the consultant to discuss and prepare documents for nomination. On this stage it was hard for me to trust a Restaurant owner because I been through this all-mental tension, depression, financial hardship and many more just because of my previous sponsor. I submit that Because of my employer mistake, why should we be punished?  I worked lawfully without any complaint until the NOICC received. We tried our best to do all process as fast as we can but somethings not in our hand and control. My consultant, immigration agent and owner have their own other stuff to do as well.  We were draining mentally, going in depression, couldn’t sleep whole nights, don’t understand what to do. No one knows about what to do next. But we were keep searching and waiting for response. 

   01/03/24   Got Notification of cancellation. For us, it was like shocked. But between this time, we were on to our LMT (labour testing market) advertisement which requires more than one month and then after need some time to prepare documents. Advertising was done around last week of January or 1^st week of February 2024. After advertising, we had to prepare LMT report which took some time. I was also preparing my son to get ready for his surgery which was on 20/03/24. But because of surgeon not available on that date so they reschedule it to 02/04/24 which was earliest. We applied for AAT on 06/03/24.

   However, in the march we were prepared to launch nomination but because of visa cancellation my new employer had to think about it again. They were afraid if my visa cancellation doesn’t put them in big trouble and it took some more time to convince them. As a Mom I was also preparing my son mentally for surgery and that’s important for me too.  On 2^nd April after surgery, it took 1-2 week him to get understand what happen to him and he was struggled to eat as he doesn’t have teeth in his mouth. He still not fine and as he lost his teeth and kids in school fun/bullied him for that (but he loves his school and teacher).

   As we are collecting documents for nomination, I had to meet my new employer and agent regularly to make sure that there were no mistakes occurred during preparing documents. After all the hard work we were able to organise, everything required, and we were about to apply for our nomination, suddenly we got news my father-in-law passed away. It put us in big shock, my husband applied for bridging visa to go for funeral as he is the only son, but department refuse the application. As a result, we got delayed for nomination and finally our nomination was launched on 03/05/2024 and now waiting for approval.

   Long story short, I have been working on my visa 482 until when the NOICC received. Had applied for 186 visas with the same employer as I was sure that I am doing correct thing.  if I had known this earlier, I would have acted accordingly to protect my visa from cancellation. Unfortunately, at the same time, we had medical problem going which we cannot ignore at all as I have young family. Because of lack of knowledge and clear instructions given on 140ZH letter to us, we could not act in time to save my existing visa 482. Things were keep happening with us and we couldn’t control as we wanted it to be.it was beyond my control.

   We don’t know much about rules and regulation, we also don’t want to breach any law. Now I am waiting for nomination to be approved which was applied on 03/05/24.

   …

9. The first, second and third named applicants appeared before the Tribunal on 31 May 2024 to give evidence and present arguments. The Tribunal also received oral submissions from the applicants’ agent.

10. The applicant confirmed that she worked as a Chef until January 2024 with her sponsoring employer, Astar Catering Pty Ltd, which traded as La Porchetta’s Italian restaurant in Cranbourne in outer Melbourne. In response to the Tribunal’s query, the applicant said that she did not work in any other capacity other than her nominated occupation of Chef.

11. In response to the Tribunal’s query, the applicant said that when the Department sent a letter to her employer stating that cancellation of its approval as a sponsor was under consideration, her employer told her and her husband that it was all a misunderstanding and would be easily fixed up. The applicant and her husband said that they asked their employer what the problem was but he was unwilling to tell them and fobbed them off. They told the Tribunal that they became concerned, and the applicant therefore started looking for a new employer who might be willing to take over sponsoring her. However, although she identified a new potential employer over the Christmas period 2023-2024, that  business was too busy to deal with the issue at that time. Accordingly, the applicant continued to work for her original employer, as both she and her husband understood that she would have 60 days to find a new employer once she finished that employment.

12. The applicant told the Tribunal that in early 2024, her older son Samrat (the third named applicant) had serious dental issues, necessitating many visits to the dentist, and culminating in major dental surgery to remove all of his infant teeth as they were painfully infected. The applicant and her husband said that they were told by the dental surgeon that this kind of surgery had not been undertaken before, and the estimated costs were between $20,000 and $30,000. They told the Tribunal that they were currently negotiating with their health insurance company to see if all or some of these costs would be covered, as it was unclear whether their health insurance cover continued once they became bridging visa holders. The applicant said that this had been financially difficult for them, but also emotionally difficult, as they had to support Samrat through the operation and pain that followed, as well as the bullying he had received at school when he returned after having his teeth removed. The applicant confirmed that Samrat is in prep grade and was otherwise well-settled at school, with a good prep teacher.

13. The second named applicant told the Tribunal that he was an Area Manager for Coles, a job at which he worked very hard as he was responsible for a large area with many staff. He was the sole breadwinner for the family at present, and he and the applicant also provided financial support to their remaining parents in India (being the applicant’s mother, and the second applicant’s mother, as his father had recently died. The second named applicant noted that, due to his immigration status, he was unable to travel back to India to attend his father’s funeral and support his mother, even though he was the only son). The applicant confirmed that she has 2 sisters in India and 1 brother in Australia. Her brother came to study here on the encouragement of the applicant and was now applying for permanent residence. The second named applicant confirmed that his sister was in India. Both applicants told the Tribunal that their unresolved immigration status after the cancellation of their visas had caused them significant emotional and financial hardship.

14. The applicants told the Tribunal that they rent accommodation and also have a car loan and school fees and expenses for Samrat. Their younger son, Eric (the fourth named applicant) would start kindergarten next year. They explained that they had no savings or assets left in India, and had been in Australia since 2014 when they came as students. They said that they considered their lives to be here, especially as both their children were born here and had never lived in India. They noted that Samrat in particular had a very negative reaction to the possibility of relocating to India and wanted to remain in Australia.

15. The applicant confirmed that her new prospective employers, Aum Pty Ltd, lodged a nomination for her as a Chef on 3 May 2024, and had been advised that it would take 2 to 3 months to process. They noted that they made every effort to assist the employer to lodge the nomination as soon as possible, but it took time to assemble the required information and for the employer to undertake labour market testing before it could be lodged. The applicants’ agent noted that even if the nomination were approved, the applicant was affected by s.48 of the Act and would have to go offshore to make a new subclass 482 visa application, which in turn would be subject to Public Interest Criterion 4013 (PIC 4013). He noted that PIC 4013 imposed a 3 year ban on making a new visa application unless there were exceptional circumstances. In contrast, if the Department had not cancelled the applicant’s original subclass 482 visa, it would still be valid until 2025, and she would be able to transfer to the new employer/nominator as the holder of that visa.

16. The applicant’s husband told the Tribunal that he felt that he and his wife had done their best to comply with all the Department’s requests and requirements, despite receiving contradictory advice at times (especially about how long they had for the applicant to find a new employer before her visa would be cancelled) and that the circumstances under which the applicant’s original employer’s sponsorship approval had been cancelled was outside their knowledge and control. They both felt that they were being punished for this, when it was not their fault. They told the Tribunal that they had also been as clear as they could be with the Department about what they were doing, including asking for additional time to resolve their situation (especially as some of their plans had been disrupted by the surgery for Samrat being rescheduled) and that if additional time had been given, they could have arranged a new nomination/sponsorship and their visas need not have been cancelled.

17. The Tribunal indicated that it intended to obtain further information, if possible, from the Department about the circumstances leading to the cancellation of Astar Caterers Pty Ltd’s sponsorship approval and the 5 year bar, as there was some indication on the Department’s file (although it was not explicit) that the Department had formed the view that the applicant was not working all of the time as a Chef. It undertook to provide any adverse information it obtained to the applicants for comment before finalising its decision. It also suggested that it might assist the Tribunal if the applicants provided further information about the second named applicant’s employment with Coles, Samrat’s surgery and his school records.

18. On 4 June 2024, the Tribunal received further information from the Department about the circumstances under which the SBS approval of Astar Caterers Pty Ltd was cancelled. This material indicates that the Department formed the view, after having sought information from Seek.com.au, that Astar Caterers Pty Ltd had fabricated an invoice purportedly issued to it by Seek.com.au as evidence provided to the Department that it had undertaken the required labour market testing for its nominated position of Chef in February 2021. Both the Department and Seek.com.au considered that the invoice and attached advertisement text were not genuine. The Tribunal notes that there is no evidence in the material that it received to indicate that the applicant was aware of, or complicit in, this fabrication. As such, the Tribunal does not consider it reflects adversely on the applicant. It therefore did not consider it necessary to put this information to the applicant pursuant to s.359A of the Act.

19. On 7 June 2024, the Tribunal received the following additional material from the applicants:

    ·skills assessment issued to the applicant by Trades Recognition Australia (TRA) on 29 November 2023 recognising that she has suitable skills as a Chef;

    ·letter dated 1 June 2024 from Mr Amritpal Singh, Head Chef at Astar Caterers Pty Ltd trading as La Porchetta Cranbourne, confirming that the applicant had worked as a Chef under his supervision for the past 3 years;

    ·further letter dated 1 June 2024 from Mr Narpreet Singh, Manager, at Astar Caterers Pty Ltd trading as La Porchetta Cranbourne, confirming the applicant’s role and responsibilities as a Chef between 28 December 2020 and 15 January 2024;

    ·letter dated 4 June 2023 [sic – should be 2024] from Mr Jim Dendroulakis, Area Manager, Coles Supermarkets (Australia) Pty Ltd, confirming the second named applicant is employed there as an Area Manager with responsibility for 24 stores and 7,000 employees directly and indirectly. Mr Dendroulakis describes the second named applicant as an exemplary employee;

    ·letter dated 5 June 2024 from Maria Pandey, Day Surgery Unit, Royal Dental Hospital Melbourne, confirming that Samrat Patel (the third named applicant) was initially referred for a recurrent dental abscess, which required specialist management at the Dental Hospital, which provided antibiotics to manage the infection and pain. Ultimately, Samrat required extensive dental surgery (extractions) under general anaesthesia due to complications and abscesses associated with earlier dental treatment in India, which was difficult for both Samrat and his family; and

    ·letter dated 4 June 2024 from Ms Angela Martin of Oakleigh South Primary School in Melbourne, who confirms that she is Samrat’s prep teacher, and that Samrat is well settled at the school, and a good learner. She notes that ‘[i]t is very important for children at this age to have stable lives and continuity in their school and home. Each time a child is moved to a different school, they lose 6 months of learning. Moving to a completely different system, or into another country would not in any way be in Samrat’s best interests – this would not be a voluntary move, but enforced because of parent’s visa difficulties. At the age of 6 children are very impressionable, retaining emotions that can be easily suppressed and cause anguish in later years. Emotional upheaval of this sort should be avoided at all costs.’

1. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

2. 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). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

3. A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(1)(l)(iv) is relevant. This sub-subparagraph provides that [Tribunal emphasis in bold font]:

   …

   (l)  in the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa, a Subclass 482 (Temporary Skill Shortage) visa or a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) 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:

   (ii)  the sponsor has given false or misleading information to Immigration or the Tribunal; or

   (iii)  the sponsor has failed to satisfy a sponsorship obligation; or  

   (iv)  the sponsor has been cancelled or barred under section 140M of the Act; or

   (v)  the labour agreement has been terminated, has been suspended or has ceased;

   …

4. The Department’s records indicate that the SBS who sponsored and nominated the applicant for her subclass 482 visa as a Chef was Astar Caterers Pty Ltd. The Department’s records further indicate that the applicant was granted her subclass 482 visa on 10 October 2021 and that it would have been valid to 1 October 2025, if not for the Department’s decision to cancel it on 1 March 2024. Finally, the Department’s records indicate that on 31 October 2023, a delegate of the Minister for Immigration made a decision pursuant to s.140M of the Act to cancel Astar Caterers Pty Ltd’s SBS approval and impose a 5 year bar on the company from seeking approval again as an SBS.

5. Given this, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

   Consideration of discretion

6. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers,’ as follows:

   …

   Matters that should be considered

   It is policy that delegates take into account the following ten matters, if relevant, when deciding whether to cancel a visa; they should consider each of these nine matters, even if not specifically raised by the visa holder. The matters that should be considered evolved from a body of case law relevant to visa cancellations and are designed to afford fairness to a visa holder. The weight applied to each of the matters is at the discretion of the delegate, and each matter must be apportioned a weighting. Generally, matters must be weighed in favour of the visa holder, not against the visa holder:

   ·     The purpose of the visa holder’s travel to and stay in Australia: delegates should assess whether the visa holder has a compelling need to travel to or remain in Australia.

   ·     The extent of compliance with visa conditions: delegates should assess whether the visa holder has otherwise complied with visa conditions now and on previous occasions.

   ·     The degree of hardship that may be caused to the visa holder and any family members: delegates should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision.

   ·     The circumstances in which the ground for cancellation arose: delegates should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, delegates should consider whether the relationship has broken down as a result of family violence. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder.

   ·     The visa holder’s past and present behaviour towards the department (for example, whether they have been truthful and cooperative in their dealings with the department).

   ·     Whether there are persons in Australia whose visas would, or may, be cancelled under s140.

   ·     Whether there are mandatory legal consequences to a cancellation decision – as three examples:

   owhether indefinite detention is a possible consequence of the cancellation decision , if a person cannot be removed from Australia consistently with Australia’s non-refoulement obligations

   owhether there are provisions in the Act which prevent the person from making a valid application for a visa without the Minister personally intervening (for example, s46A, s46B, s48, s48A, s91E, s91K and s91P of the Act) and

   owhether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and liable to be detained under s189, and liable for removal under s198.

   ·     Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation, – as two examples:

   oIf there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, delegates are obliged to treat as a primary consideration the best interests of the children - for more information, refer to:

   § Australia's international obligations and

   § PAM3: Act - Compliance and Case Resolution - Case resolution - Guiding principles - Treatment of children.

   oWhether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations. It is important to note that a cancellation delegate is not required to undertake a full analysis of whether a person is owed protection, as a cancellation decision is not, in and of itself, a decision to remove a person from Australia.

   ·     Any other relevant matters.

   If a delegate is considering whether to cancel a permanent visa, they are also to take into account whether the visa holder has formed strong family, business or other ties in Australia.

   …

7. While the Tribunal is not bound to follow Departmental policy, it is generally considered relevant to take into consideration such factors when the Tribunal has a discretion whether or not to cancel the visa. Accordingly, the Tribunal has considered the factors listed above in the context of the applicant’s circumstances.

   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

8. The Tribunal is satisfied that the applicant was granted a subclass 482 visa to work as a Chef for her original sponsoring employer, Astar Caterers Pty Ltd, on 1 October 2021, and this visa would have ceased on 1 October 2025 had it not been cancelled on 1 March 2024.

9. The applicant’s evidence was that she had now secured a new Australian employer, who has lodged a nomination of her as a Chef for a subclass 482 visa on 3 May 2024. The applicant and her agent have been advised by the Department that it will take 1 to 3 months for the nomination to be assessed. The applicant has also provided reference letters from her previous employer confirming her employment and duties as a Chef at that establishment between December 2020 and January 2024, and a positive skills assessment from 2023 from TRA as a Chef. The Tribunal notes that the most recent Skills Priority List published by the Australian Government’s Jobs and Skills Australia in 2023 indicates that Chefs are in shortage in Victoria (and throughout Australia). Although parts of the delegate’s decision to cancel the applicant’s visa appear to suggest or imply that the applicant may not have worked for her original employer as a Chef at all times throughout her employment, there is nothing in the further investigation material provided by the Department to the Tribunal at the Tribunal’s request that refers to this or substantiates it. The Tribunal notes that the applicant asserted at hearing that she worked as a Chef at all times for her original employer.

10. The Tribunal also gives weight to the reference letter from June 2024 from the second named applicant’s employer at Coles Australia, which makes reference to his value to that organisation:

    …

    I am writing to provide a reference for Pratikkumar Patel who has been an exemplary employee in his role as Manager (Area Support) for Coles Services. During his tenure, Pratikkumar Patel has consistently demonstrated exceptional leadership, strategic thinking, and a profound dedication to both the business and his team.

    As an Area Support Manager responsible for 24 stores and overseeing 7k employees (direct-indirect), Pratikkumar Patel has played a pivotal role in ensuring that our stores maintain the highest standards of product availability, cleanliness, safety, and efficiency. His ability to manage such a large and diverse team is a testament to his strong leadership skills and his capacity to motivate and inspire those around him.

    Pratikkumar Patel has been instrumental in implementing various initiatives that have significantly improved operational efficiency and customer satisfaction. He has a keen eye for detail and a proactive approach to problem-solving, which has resulted in a more streamlined workflow and enhanced store environments. His efforts have not only improved the day-to-day operations but have also contributed to long-term business growth.

    Recently, Pratik faced a temporary setback when he was terminated for a one-week period due to visa-related issues. Despite this unexpected challenge, Pratik handled the situation with professionalism and grace, and his absence was keenly felt by both his team and his superiors. His importance to our operations became clear during this time, and we were thrilled to have him back on board as soon as the issue was resolved for work rights.

    Moreover, Pratikkumar Patel is highly regarded by his peers and subordinates alike. His approachable demeanour and open-door policy have fostered a collaborative and supportive team culture. He ensures that each team member feels valued and heard, which has led to high employee morale and retention rates. His commitment to professional development is evident in the numerous training programs and mentorship opportunities he has championed.

    In conclusion, Pratikkumar Patel is an invaluable asset to Coles Services and the broader Coles Group. His leadership, dedication, and strategic vision are critical to the success of our operations. I have no doubt that he will continue to excel and drive positive outcomes for the business.

    …

11. From the above, the Tribunal is satisfied that the second named applicant is a highly regarded employee of Coles Australia, with significant managerial responsibilities, and it accepts that if he were to have to leave, it would have a detrimental effect on the stores and staff for whom he is currently responsible.

12. Finally, the Tribunal takes into account the following points made by the third named applicant’s prep teacher about his integration into his primary school, the effect that leaving this environment would have on him emotionally and educationally, and his recent experience of major dental surgery:

    …

    Samrat is currently in Prep or Foundation at Oakleigh South Primary School.

    He is a cheerful and cooperative student who always does his best in the classroom.

    Samrat is a popular member of our class whose friendly nature has gained him many friends. He always says hello to all the staff, who know him well and enjoy his confidence when speaking with adults. Samrat is enthusiastic about his learning and willingly tries all tasks that are placed before him. He is confident and polite, always wanting to please and make good choices. He always tells the class how much he loves school and loves learning. It is a pleasure to teach Samrat and we love having him in Prep MC.

    Samrat is not only very happy at our school but his parents are extremely lucky to have got a placement here for him. As a school that ranks in the Top 10 in Victoria, it is very hard to get into, as it is zoned. Samrat is making good progress here and is proud of his place. Samrat receives extra English tuition once per week to assist him with his conceptual language. His English has improved a great deal since beginning Primary School, and he has worked hard on his pronunciation. Belonging is vital to any child, and Samrat has firmly cemented his roots at OSPS.

    It is very important for children at this age to have stable lives and continuity in their school and home. Each time a child is moved to a different school, they lose 6 months of learning. Moving to a completely different system, or into another country would not in any way be in Samrat’s best interests – this would not be a voluntary move, but enforced because of parent’s Visa difficulties. At the age of 6 children are very impressionable, retaining emotions that can be easily supressed and cause anguish in later years. Emotional upheaval of this sort should be avoided at all costs.

    Samrat’s family are valuable members of the OSPS Community. They contribute their time happily to activities in the school and have developed great connections with other families in the area. Again, this is such an important facet of Samrat’s success. Samrat needs to stay in Australia to continue his learning and build on his community connections.

    Samrat has recently undergone a significant surgery – removing all of his baby teeth, due to a congenital condition. He has had to adjust to eating and speaking clearly again. This is a great deal for a 6 year old to overcome, and whilst Samrat has been amazing the way he has managed this, it has been very challenging for him. Samrat should have the right that all Australian kids have – to learn and be happy in Australia.

    …

13. Taking all of the above information into account, the Tribunal is satisfied that the applicant and second named applicant have the same purpose for remaining in Australia as they originally did: to work for Australian employers and fill positions that cannot be easily filled locally. The Tribunal is satisfied that both the applicant and second named applicant have been and/or are valued employees who have contributed to the operations of their Australian employers, and that the applicant is likely to be able to continue to do so if the nomination by her new proposed employer is approved. The Tribunal also accepts that there are compelling reasons for the third named applicant, Samrat, to remain in a stable school environment, particularly as he recovers from major dental surgery.

14. The Tribunal gives these factors weight in favour of not cancelling the applicant’s visa.

    The extent of compliance with visa conditions

15. There is no direct evidence, from the Tribunal’s review of the Department’s records for the applicants, including its Integrated Client Service Environment (ICSE) electronic records, that the applicants have not complied with the conditions of their subclass 482 visas, or any previous visas.

16. As noted above, the Tribunal has reviewed the sponsorship cancellation and sanction decision made on 31 October 2023 in relation to the applicant’s former employer, Astar Caterers Pty Ltd, a copy of which is on the applicants’ Department file.

17. This decision indicates (in summary) that:

    ·the Department delegate was satisfied that the company deliberately breached several of its sponsorship obligations;

    ·these included its obligation to ensure that its nominees worked in the occupation for which they had been granted a subclass 482 visa, its obligation not to provide false or misleading information to the Department and to keep accurate employment records, and its obligation to provide information when requested to do so by the Department;

    ·in particular, it was found that the company had not ensured that the applicant had worked in her nominated occupation for all or part of her employment (although details were not provided as to why the Department had formed this view), and that the company had falsified various documents including employment contracts between the applicant and the company which were purported to have been signed by on behalf of the company by its director in Australia, at a time when the Department’s records indicated that he was offshore and falsified evidence of labour market testing allegedly undertaken by the company; and

    ·it was also noted that the company had not been able to provide proof of the applicant’s employment duties for at least 2 years since her nomination was approved by the Department.

18. As noted at paragraph 18 above, the Tribunal sought and received further information from the Department in June 2024 about the circumstances under which the SBS approval of Astar Caterers Pty Ltd was cancelled. This material indicates that the Department formed the view, after having sought information from Seek.com.au, that Astar Caterers Pty Ltd had fabricated an invoice purportedly issued to it by Seek.com.au as evidence provided to the Department that it had undertaken the required labour market testing for its nominated position of Chef in February 2021. Both the Department and Seek.com.au considered that the invoice and attached advertisement text were not genuine. The Tribunal notes that there is no evidence in the material that it has received to date to indicate that the applicant was aware of, or complicit in, this fabrication. As such, the Tribunal does not consider it reflects adversely on the applicant.

19. As also noted above, the applicant denied that she had worked in any other capacity than Chef for Astar Caterers Pty Ltd, and there is no definitive evidence before the Tribunal to indicate that she has breached this (or any other) condition of her visa. Nor is there any evidence that any of the other applicants have breached any of their visa conditions. At hearing, the applicant and second named applicant indicated that they tried their best to comply with the requirement for the applicant to find a new employer within 60 days of ceasing employment with her original employer, and they also noted that the second named applicant had to cease work for 1 week upon the consequential cancellation of his subclass 482 visa, before he was granted permission to work as a bridging visa A holder.

20. From the above, the Tribunal is satisfied that the applicants have complied with their visa conditions in Australia and have sought to work with the Department to resolve their situation. This counts in favour of not cancelling their visas.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

21. The Tribunal accepts that applicant and second named applicant have been in Australia since 2014, approximately 10 years, and that both their children were born in Australia. It further accepts from their evidence at hearing that they have no assets left in India and that their respective family members still in India are not in a position to financially assist them to re-establish themselves there, as they either have their own family responsibilities or are retired or deceased. The Tribunal further accepts that the applicant and second named applicant would be unlikely to find employment at the remuneration level they have been earning in Australia. It therefore accepts that they would suffer some not insignificant financial hardship if the visa remains cancelled.

1. The Tribunal further accepts that the family would also suffer psychological and emotional hardship if their visas remained cancelled; in particular, due to the length of time that they have lived in Australia, noting in particular the comments of the third named applicant’s primary teacher about the effect on him of having to leave Australia, both educationally and emotionally. The Tribunal notes that the fourth named applicant has not yet commenced kindergarten in Australia so is less likely to be affected.

2. Nevertheless, considered cumulatively, the Tribunal is satisfied that a significant degree of financial and emotional hardship would result for the family if they had to depart Australia, and it gives this weight in favour of not cancelling the applicant’s visa.

   Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that 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

3. The circumstances in which the ground of cancellation arose are set out above – they indicate that a mandatory ground for cancellation exists because the Department made a decision on 31 October 2023 pursuant to s.140M of the Act to cancel the sponsorship approval of the applicant’s former employer, Astar Catering Pty Ltd, and to impose a 5 year ban on the company seeking approval as a sponsor. The cancellation of the applicant’s visa did not occur because of a family relationship breakdown.

4. The applicant asserts that the cancellation of her former employer’s approval as a sponsor and the imposition of a 5 year bar on it seeking approval as a sponsor again was beyond her control.

5. Having reviewed the cancellation decision in relation to the employer, Astar Caterers Pty Ltd, and the accompanying investigatory material provided to the Tribunal post-hearing, the Tribunal is satisfied that it appears that the grounds for the SBS cancellation did not involve any wrongdoing or breach by the applicant, but instead related solely to actions by her then employer. The Tribunal is satisfied that this was a factor beyond her control and that she should not be held liable for her employer’s actions (or inactions).

6. The Tribunal considers that this weighs in favour of not cancelling the visa.

   Past and present behaviour of the visa holder towards the Department

7. There is no evidence that the applicant has failed to cooperate with the Department.

   Whether there would be consequential cancellations under s 140

8. The Tribunal is satisfied that the cancellation of the applicant’s subclass 482 visa led to the consequential cancellation of the applicant’s husband and children’s subclass 482 visas.

9. Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

10. The Tribunal is satisfied that despite the visa cancellations, the applicants have been granted bridging visas, with work rights in the case of the second named applicant, allowing them to remain in the community while their review application is being considered (and possibly beyond the time of the Tribunal’s decision, depending on the outcome). However, if they are unsuccessful in their review application (including judicial review, if they seek this in the event of an unsuccessful Tribunal review application), they may be liable to detention if they do not make suitable arrangements to depart Australia.

11. The Tribunal also notes that as a result of the cancellation, the applicants are subject to s.48 of the Act, which prevents them from making most other visa applications onshore. If the cancellation were set aside, this limitation would not apply.

12. The Tribunal gives this factor some weight in favour of not cancelling the visa.

13. Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

14. The Tribunal is satisfied that there is no evidence that the cancellation of the applicants’ visas would breach Australia’s non-refoulement obligations. It is further satisfied that the cancellations would not breach family unity, as it considers that the applicants would depart Australia if necessary as a family unit.

15. In relation to the best interests of the applicant children, the Tribunal accepts (as set out in paragraphs 31 and 32 above) that it is in the best interests of the applicant children (particularly the older child, Samrat) to remain in Australia, where they have lived all their lives to date, and where Samrat is now at school. It also gives weight to the fact that it is in Samrat’s interest that he continue to have dental care in Australia, given the significant surgery he required in early 2024.

16. The Tribunal gives significant weight to this in favour of not cancelling the visas.

    If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

17. The Tribunal finds that this factor is irrelevant to the applicant’s case, as she held a subclass 482 temporary work visa.

    Any other relevant matters

18. The applicants did not raise any additional matters, apart from reiterating that they had done their best to comply with immigration law in Australia and that the issues with the applicant’s original employer should not be attributed to them or be used as a basis for cancelling their visas.

19. Having carefully considered the above circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    DECISION

20. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s subclass 482 - Temporary Skill Shortage visa.

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

    Alison Mercer
    Member