Perera (Migration)

[2021] AATA 3335

Perera (Migration) [2021] AATA 3335 (16 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ethuldora Arachchige Dishani Chamila Perera
Mr Anurudda Wickramabahu Rahula Gunawardana
Master [name deleted] Gunawardana
Miss Yulani Sethumya Gunawardana

CASE NUMBER:  2013876

HOME AFFAIRS REFERENCE(S):          BCC2019/6410432

MEMBER:Phoebe Dunn

DATE:16 June 2021

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 457 (Temporary Work (Skilled)) visa.

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

Statement made on 16 June 2021 at 4:40pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – ceased employment for more than 60 days – original employer ceased trading – lengthy period with no work – unsafe conditions with second employer and exploitative expectations from other employers – COVID-19 restrictions – discretion to cancel visa – new employer established, genuine and supportive – new position nomination application in progress – second applicant’s secure, skilled work – children’s education – best interests of Australian citizen child – travel restrictions – decision under review set aside for first applicant, no jurisdiction for other applicants

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), (3), 140(1), 348
Migration Regulations 1994 (Cth), Schedule 8, condition 8017(3)(b)

CASES
Alimi v Minister for Immigration [2007] FMCA 1520
Chow v MIMIA [2002] FCA 1429
Durzi v MIMIA [2006] FCA 1767
Lobo v MIMIA [2003] FCAFC 168
Moller v MIAC [2007] FMCA 168
Rani v MIMA (1997) 80 FCR 379
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Sakhno v MIAC [2007] FMCA 1492
Tien v MIMA (1998) 89 FCR 80
Visnumolakala v Minister for Immigration [2006] FMCA 1209

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 September 2020 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(b) on the basis that the applicant has not complied with condition 8107(3)(b) as the applicant had ceased employment with the sponsoring business for greater than 60 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.

3. 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.

4. The applicant was invited to appear before the Tribunal on 24 February 2021.  By email dated 22 February 2021, the applicant requested that the hearing be postponed.  The Tribunal granted that request and the hearing was rescheduled to 18 March 2021.  By email dated 17 March 2021, the Tribunal received a further request for the rescheduled hearing to be postponed. That request was granted, and by letter dated 18 March 2021 the Tribunal advised that the hearing was postponed for a further four weeks to 15 April 2021, stating as follows:

   The Tribunal has carefully considered your request and has determined to adjourn this matter for a further four weeks, noting that the hearing has already been rescheduled at your request for three weeks from the date of the original hearing on 24 February 2021. The hearing will now take place on 15 April 2021, at 8:30 am.

   In doing so, we have had regard to the President’s COVID-19 Special Measures
   Practice Directions (the Practice Directions) and the Tribunal’s obligation to fulfil its
   objective to provide a mechanism of review that is fair, just, economical, informal,
   quick and proportionate to the importance and complexity of the matter. We draw your attention, in particular, to practice direction 6.11, which provides that all documentation that you want the Tribunal to consider must be lodged at least seven (7) days before the hearing and practice direction 6.13, which provides that if you lodge it less than seven days before the hearing, you must explain why in writing and the Tribunal may reschedule the hearing to the next earliest opportunity, usually within seven (7) days time.

   We also draw your attention to practice direction 6.16 which provides that the Tribunal will not postpone a hearing unless there are good reasons to justify the postponement and practice direction 6.17 that you must make any request for postponement as soon as you become aware of the need for a postponement.

   The Tribunal notes and has considered your request for an indefinite postponement to enable you to obtain a new sponsor. The Tribunal considers that it is appropriate to proceed with the hearing at the new date and time and will consider any evidence you may wish to draw to the Tribunal’s attention at that time, including in relation to a new sponsor.

5. By email dated 18 March 2021, the applicant requested that the hearing be rescheduled to a date after 26 April 2021 and that the hearing be conducted in person due to the ‘highly sensitive’ nature of the matter and the hardship being faced by the applicants. By further email received on 18 March 2021, the applicant reiterated that request, noting that it was to allow the applicant’s new employer time to satisfy labour market testing requirements prior to lodging the nomination. In response, the Tribunal stated that it had carefully considered the applicant’s request and had declined to reschedule the hearing again for the reasons set out in the Tribunal’s letter dated 18 March 2021, noting that the Tribunal would consider any evidence the applicants may wish to present in relation to a new nomination and labour market testing at the hearing.

6. By letter dated 12 April 2021, the applicant again requested a further postponement of the hearing, providing evidence of a new nomination process that was in train and seeking for the matter to be deferred until after the nomination is processed ‘allowing a minimum of 14 days for processing’.  By letter dated 13 April 2021 the Tribunal rescheduled the hearing to 5 May 2021.

7. The applicant appeared before the Tribunal in person on 5 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, the second named applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

8. The applicant was granted the opportunity to provide post-hearing submissions by 19 May 2021. The Tribunal received further submissions and supporting documentation on 19 May 2021.

9. The applicants were represented in relation to the review by their registered migration agent and lawyer, Mr Don Katugampala.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Review hearing

12. At the outset of the review hearing the Tribunal explained in detail the relevant issues on review, namely whether the evidence indicated that the applicant had breached a condition attached to their Subclass 457 visa, being condition 8107, which requires that the applicant remain employed by an approved sponsor for the term of the visa and that any period of non-employment with an approved sponsor must not exceed 60 consecutive days. The Tribunal stated that if the grounds for cancellation existed and cancellation was not mandatory, the Tribunal would then consider whether the visa should be cancelled having regard to a range of discretionary factors. The Tribunal noted the specific purpose of the Subclass 457 visa scheme was for businesses in Australia to be able to employ foreign workers for the purposes of filling skills shortages where businesses cannot secure local employees to fill those roles, noting that it was a temporary visa that did not in and of itself give rise to a right to permanent residency.  The Tribunal explained that in considering the issues before it, the Tribunal would have regard to the evidence provided to the Department and all the evidence provided to the Tribunal at merits review.

13. At the hearing, the applicant gave detailed oral evidence regarding the circumstances of her case.  The applicant stated that she and her husband first came to Australia in 2008 on a Student visa and she studied commercial cooking, completing a Certificate III, Certificate IV and then a Diploma. At this time, she said that she was working part-time as a service assistant in aged care while studying. She stated that [their first child] (the third named applicant) was born in Australia on [Date] and is now an Australian citizen.  She stated that they then returned to Sri Lanka and she worked as a Chef there, during which time their second child (the fourth named applicant) was born. She stated her son was not happy at the school he was attending in Sri Lanka and wanted to return to Australia where he had been happy.  Consequently, she and her husband decided to try to obtain work in Australia with the intention of trying to achieve permanent residency in Australia. She was successful in securing a job as a Chef and a sponsorship with her employer through an advertisement on Facebook, and not long after they moved to Australia and she worked for the sponsor for around three to four months until they closed.  She stated that unfortunately for her family, her job was not secure, but they had been able to survive because her husband was a qualified mechanic and had been working as a mechanic since they returned to Australia in 2018.

14. The applicant stated that she understood at the time that her job ended that she was required to find a new job and a new sponsor within 60 days, but despite looking hard for another job in Melbourne, she was not able to find suitable employment.  She stated that many potential employers were asking for substantial sums of money or asking her to work for no renumeration for a significant period of time in return for sponsorship. She stated that she and her husband are ethical people and she did not want to do that, and she wanted to make sure she complied with all Australian laws. She said that she was successful in securing a job as a Chef with a four-star hotel in Adelaide and moved to Adelaide with her family in October 2018 to take up that position and worked there as a Chef for around two months.  She stated that her employer had agreed to sponsor her and was going through the process of placing the necessary advertisements required prior to lodging the nomination application.  She stated that she had signed a contract and was being paid cash at a rate of $1,100 per week, but after a month or so she started to feel unsafe at her workplace as the other staff working in the kitchen were all male.  She stated that she spoke to her husband and they agreed that it was best to move back to Melbourne to try to find another sponsor there.

15. At the hearing, the Tribunal invited the applicant to comment on the fact that based on the evidence before it, the applicant was unemployed for a period of over two years from January 2019 to February 2021 in breach of her visa conditions, until she commenced working as a Chef for her current employer.  In response, the applicant stated that they returned to Melbourne in January 2019 with the intention of finding work as soon as possible and regularising her visa status, but despite every effort she was unable to find another job or sponsor and that this was subsequently compounded by the COVID-19 pandemic.  The applicant said that she put in many applications and agreed to undertake numerous trials on the basis of her qualifications and experience, but that after doing the trials the prospective employers would ask her to work for no pay for a specified period or pay them a significant sum of money (which she stated was in the range of $30,000 to $45,000) in return for the sponsorship. The Tribunal asked whether she had ever reported any of these instances to any relevant authorities and in response she stated that she did not as she was concerned about what would happen to her and her family if she was to do so, given her visa status.

16. The applicant stated that she has now secured a position as a Chef and that her new employer was supportive of her and had agreed to go through the process of sponsoring her. She stated that her employer has successfully applied to be a standard business sponsor, undertaking the necessary advertising and had since lodged an application nominating her for a Subclass 482 visa. She stated that she wished to have the opportunity to continue to work for her current employer and obtain a permanent visa to enable her family to stay in Australia.

17. In oral evidence at the hearing, Mr Gunawardana, the applicant’s husband, stated that when they came to Australia, he got a job as a mechanic with a dealership in Nunawading, who had agreed to sponsor him, but that he needed to do some study in order to pass his IELTS. He then left this job when they moved to Adelaide.  He stated that when they returned to Melbourne, he got another job working as a qualified mechanic for the Jefferson Group at their dealership in Berwick, where he has been working full-time since 4 April 2019. He stated that he has to wait another six months before he can undertake a Skills Assessment and apply for a Skilled visa. He stated that he now has expertise working with five different makes of car: Volvo, Suzuki, Holden, Renault and Audi and that it would be very hard for his employer to replace him as it is difficult to find qualified, skilled mechanics. He stated that his job is very secure and that if given the opportunity to stay in Australia he would like to undertake further studies as a mechanic.

18. Mr Gunawardana gave evidence regarding the impact of the visa cancellation on his children, noting that his daughter had only attended school in Australia and his son did not want to return to Sri Lanka where he has no ties and did not have a good experience at school. He stated that they had sold everything when they left Sri Lanka and it would be very hard for them to return there and start again.  He reiterated the applicant’s oral evidence regarding their son, who is over 10 years old and who they state is now an Australian citizen. He stated that his son has been very successful at karate and would like to continue practising and competing in karate.

19. In closing submissions, the applicant’s representative noted that the applicant’s current employer runs a reputable Asian restaurant in Berwick that has been operating for over 20 years and is a genuine employer, with a genuine need, noting the difficulty in attracting and retaining staff due to the COVID-19 pandemic. He submitted that in his opinion the nomination application by the employer has a 99% chance of success.  He submitted that the circumstances leading to the cancellation of the applicant’s visa were beyond the control of the applicant, noting that she had never been in breach of any other visa conditions and had acted with integrity and was not prepared to compromise by accepting ‘indecent proposals’ from other prospective Subclass 457 visa sponsors. He noted that the occupation of Chef is on the long-term occupation list which would open a pathway for a permanent residency visa at a future date. He noted the significant hardship that the family would endure if the cancellation was upheld and stated that he was requesting that the Tribunal overturn the cancellation or delay a decision until the Subclass 482 nomination application was determined.  In the alternative, he indicated that the applicant would be seeking referral for Ministerial Intervention under s 351 of the Act.

20. In post-hearing submissions, the applicant has submitted a statement from the applicant dated 19 May 2021, together with further evidence regarding the applicant’s current employment and the support from her employer, including payslips and bank statements evidencing payment of salary.  The applicant has also provided evidence of the terms of her employment with the Waikerie Hotel Motel in Adelaide, including a contract dated 12 November 2018 (subject to the transfer of her Subclass 457 visa) and a detailed genuine need statement accompanying the nomination application for the sponsorship of the applicant by the Waikerie Hotel Motel dated 13 December 2018, which expressly refers to the applicant’s attributes, skills and experience.  The applicant has also submitted documents relating to her and her husband’s qualifications and employment and her son’s education and achievements.

    Does the ground for cancellation exist?

    s 116(1)(b) – non-compliance with conditions

21. A visa may be cancelled under s 116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa; in this instance condition 8107(3)(b) attached to the applicant’s visa. This condition requires that if the applicant ceases employment, the period during which the applicant does so must not exceed 60 days.

22. The applicant was granted a Subclass 457 (Temporary Work (Skilled)(visa)) on 31 May 2018 for a period of four years until 31 May 2022. 

23. On 9 September 2020, a delegate of the Minister determined to cancel the visa under s 116(1)(b) on the basis that the holder had not complied with condition 8107(3) which requires that if the applicant ceases employment, the period during which the applicant does so must not exceed 60 days.

24. A notice of intention to consider cancellation (NOICC) was sent to the applicant on 6 August 2020. In the decision record, the delegate noted that the applicant had been approved to work for the sponsor, Life Shine Group Pty Ltd, but that the sponsor had ceased trading in October 2018. The delegate noted that as a consequence the applicant is taken to have ceased employment with the sponsor effective from October 2018 and that there was no evidence before the delegate to suggest that the applicant had obtained a new nomination and that this indicated that the applicant had not complied with the requirements of condition 8107(3)(b) as the applicant had not obtained employment within 60 days as required by condition 8107(3)(b), giving rise to the grounds for cancellation.

25. This issue was discussed at the hearing and has been dealt with in the applicant’s written submissions.  At the hearing, the applicant gave oral evidence that she commenced working for the sponsor in July 2018 and finished working for them at the end of September 2018. The applicant concedes that there are grounds for cancellation and this issue is not in dispute. The applicant has made submissions to the Department and the Tribunal in respect of the exercise of the discretion not to cancel the applicant’s visa.

1. The Tribunal notes that the applicant ceased employment with the sponsor late September/early October 2018.  While the applicant had a brief period of employment consistent with her nominated occupation of Chef from October 2018 to December 2018, for a period of over two years until February 2021, the applicant has not been employed for more than 60 consecutive days and has not obtained a new nomination, putting the applicant in breach of condition 8107(3)(b) attached to the applicant’s visa.

2. Following consideration of the evidence before it, the Tribunal is satisfied that the grounds for cancellation in s 116(1)(b) exists, on the basis of non-compliance with condition 8107(3)(b) of the applicant’s Subclass 457 visa.

3. 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

4. There are no matters specified in the Act or the 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’.

5. The Tribunal notes that while it may be guided by policy it is not bound to follow it.[1] Specifically, in this context, the Courts have held that while the PAM3 policy guidelines are an administrative advisory guide to decision makers in relation to the application of the Act and the Regulations, they cannot be 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] Notwithstanding this, the Tribunal considers the PAM3 policy guidelines to be a useful starting point in respect of the discretion in this context.

   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

   [1] See Brennan, J. in Re Drake v Minister for Immigration and Ethnic Affairs (No. 2) (1979) 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 Affairs [2006] 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])

6. The applicant was granted a Subclass 457 visa on 31 May 2018 to work in the nominated occupation of Chef for Life Shine Group Pty Ltd.  The Subclass 457 visa is a temporary visa granted for a finite period to fill identified skills shortages, enabling an Australian business to employ an overseas worker where they have established a need for the employee and have met the relevant criteria. The expectation is that the applicant will work for the sponsor in the nominated occupation for the term of the visa.

7. On the basis of the applicant’s oral evidence, the applicant’s employment with her original sponsor ceased at the end of September 2018.  The evidence before the Tribunal indicates that the cessation of the applicant’s employment was due to circumstances beyond her control, resulting from the closure of the business. 

8. At the hearing, the applicant gave extensive evidence about her efforts to secure new employment and to regularise her immigration status.  The Tribunal notes that the applicant secured a role in Adelaide and moved there with her family, working as a Chef for a period of two months before resigning and returning to Melbourne for reasons which she has described in a post-hearing statement as personal and relating to ‘severe health issues and personal family commitments’. The Tribunal notes that from the period January 2019 to February 2021 the applicant was not employed in any capacity.  While the Tribunal accepts that the impact of the COVID-19 pandemic meant that the applicant was unable to secure work in her nominated occupation due to the extended lockdown in Melbourne from March 2020 until approximately December 2020, there was a period of at least a year prior to then when the applicant was not working. The Tribunal considers it significant that the applicant is still not the subject of a current approved nomination.

9. The Tribunal acknowledges that there is a prospective Subclass 482 nomination application in respect of the applicant.  The applicants have requested that the Tribunal delay making a decision on the cancellation review until such time as the Subclass 482 nomination is determined, acknowledging that there is no firm timeframe within which this may occur and that the Department is currently giving priority to specified occupations, of which the occupation of Chef is not one.  At the hearing, the Tribunal pointed out that the approval of the nomination application remains speculative, notwithstanding written and oral submissions asserting that there is a 99% certainty that it will be approved on the basis that the nominator’s migration agent (who also represents the applicants) completed the paperwork and has ensured that the application was compliant. The Tribunal noted that the applicant ceased to work for her nominating employer in September 2018 and for the period from January 2019 to February 2021 did not work in her nominated occupation. The Tribunal noted that it has no indication when a decision on the Subclass 482 visa nomination application might be made and that the Tribunal is required to make decisions in an efficient manner and cannot delay making its decision indefinitely.

10. The Tribunal considers that the applicant has had fair opportunity to become the subject of an approved nomination by an approved sponsor. The applicant has not worked for an approved sponsor in an approved occupation since September 2018 and despite past efforts has not been able to secure an approved nomination to date. Prior to the COVID-19 pandemic, the Tribunal considers the applicant had the option of going offshore and lodging a new application. In the circumstances, the Tribunal does not consider it unreasonable to proceed to a decision on the information before it.

11. Noting that the Subclass 457 visa is a temporary visa, the Tribunal gives this consideration some weight in favour of cancellation.

12. However, the Tribunal also notes the applicant’s submissions about her experience of trying to secure employment to address her non-compliance and the exploitative terms that were offered to her.  The Tribunal also notes the applicant’s oral evidence about her experience of not feeling safe while working at the hotel in Adelaide and that this was the reason she did not continue to pursue a new sponsorship with that employer.  While the Tribunal does not have any independent evidence to verify those claims, the Tribunal found the applicant to be honest and compelling.

13. The Tribunal also notes that the applicant has since secured employment as a Chef and has been nominated by her current employer for a Subclass 482 visa. The applicant has signed a contract of employment dated 16 March 2021 with her current employer for an annual salary of $56,160 plus superannuation.  The Tribunal has received evidence that the nominator has successfully been approved as a standard business sponsor, undertaken necessary advertising for the nominated position and lodged a nomination application in favour of the applicant.  The Tribunal has received submissions from the applicant’s current employer about the value he places on the applicant and his need to retain her as a Chef to support the business, noting the difficulties he has experienced in trying to secure a local, experienced Australian citizen or permanent resident for the role. In this respect the Tribunal considers the applicant’s stay in Australia continues to be aligned with the intention of the cancelled visa, being to fill an ongoing skills shortage. The Tribunal gives this consideration some weight against cancellation.

    The extent of compliance with visa conditions

14. The Tribunal discussed with the applicant the extent of her compliance with her visa conditions.  The applicant has advised that, with the exception of the matter before the Tribunal, the applicant has always complied with her visa conditions.  There is no evidence before the Tribunal to suggest that the applicant has not otherwise complied with her visa conditions.  The Tribunal accepts this evidence and gives this consideration some weight against cancellation.

15. The Tribunal notes that the applicant’s breach of condition 8107(3)(b) was a consequence of the applicant’s sponsor closing the business and as such was beyond the control of the applicant. The Tribunal gives this consideration some weight against cancellation.

16. However, the Tribunal notes that the applicant was not employed as a Chef for a period of over two years, from January 2019 until February 2021 and considers that to be significant. The Tribunal also notes that the applicant did not notify the Department about her breach of visa condition. The Tribunal gives this consideration some weight in favour of cancellation.

17. At the hearing, the applicant gave detailed evidence about her efforts to secure employment and the number of trials she undertook in an effort to do so, only to be offered exploitative terms for ongoing employment and sponsorship.  The Tribunal also notes that the COVID-19 pandemic impacted negatively on the applicant’s capacity to secure employment to ameliorate her non-compliance as soon as possible for approximately one year of the period of non-employment.  The Tribunal gives this consideration some weight against cancellation.

    The degree of hardship that may be caused

18. The applicant has made extensive written and oral submissions regarding the hardship that would be caused to the applicant and her family if the visa cancellation was upheld. 

19. At the hearing the applicant stated that she had been in Australia for many years as a student that her son had been born in Australia. She stated that they had returned to Sri Lanka and worked there but that her son was unhappy and wanted to return to Australia, which was the reason they decided to seek employment in Australia and try to secure a permanent residency.  She stated that she and her husband hoped their children could be raised in Australia and had sold their home and everything they owned in Sri Lanka when they moved to Australia. She stated that they would have nothing to return to and that as a consequence of the COVID-19 pandemic, securing employment would be extremely difficult.  She spoke of the likely impact to her children should they have to return to Sri Lanka and their wish to stay in Australia, stating that her son was now an Australian citizen as he was born here and is over 10 years old.  She stated that she and her husband now have stable employment in Australia, and it would cause them and their children financial and emotional hardship if the decision to cancel her visa was affirmed.

20. At the hearing, the Tribunal discussed with the applicant that the Subclass 457 visa was a temporary visa and there was no guarantee that it would lead to permanent residency. The Tribunal notes that the applicants have only ever held temporary visas, which were granted for a specified purpose and for a set period, and do not entitle the applicants to remain in Australia indefinitely.

21. The Tribunal accepts that if the applicant’s visa cancellation is affirmed it would cause hardship to the applicant and her family as well as to her current employer. The Tribunal also accepts that it would likely cause some hardship to her husband’s (the second named applicant) employer. While the Tribunal considers that the applicant has skills and qualifications that would be helpful to the applicant gaining employment in Sri Lanka, the Tribunal is persuaded that in the context of the global pandemic it would be difficult to do so. The Tribunal also accepts that returning to Sri Lanka would be likely to cause hardship to the applicant’s children who have resided in Australia for a long time.

22. The Tribunal gives this consideration some weight against cancellation.

    The circumstances in which ground of cancellation arose

23. The applicant has provided evidence as to the circumstances that led her to breach her visa condition, noting that the circumstances were beyond her control.

24. The Tribunal notes, however, that the applicant has been in breach of condition 8107(3)(b) for an extensive period of over two years and considers this to be significant.

25. In oral evidence the applicant stated that she was aware of the requirement to obtain a new sponsor within the 60-day period and had worked hard to ensure that she was not in breach of this condition, securing new employment and the promise of a new sponsorship in Adelaide, resulting in her and her family leaving Melbourne for Adelaide in October 2018. She stated that she left this employment after a few months as she did not feel safe there and returned to Melbourne where she attempted to secure new employment. In post-hearing submissions, the applicant stated that she left Adelaide for family reasons.

26. She stated that her subsequent efforts to rectify her breach of the visa condition were hampered by the COVID-19 pandemic, with the extensive lockdown in Melbourne.

27. The Tribunal accepts that the circumstances giving rise to the original breach of the applicant’s visa conditions were beyond her control and that she made efforts to secure new employment to no avail and that this was compounded by the COVID-19 pandemic.  The Tribunal gives this consideration some weight against cancellation. However, for reasons previously identified, the Tribunal considers the extended length of the non-compliance to be significant and gives this consideration some weight in favour of cancellation.

    Past and present behaviour of the visa holder towards the Department

28. There is no evidence to suggest that the applicant has behaved in a negative manner towards the Department or in such a way that would weigh in favour of cancellation.

29. The Tribunal gives this consideration neutral weight.

    Whether there would be consequential cancellations under s 140

30. The Tribunal notes that the secondary applicants were granted visas on the basis of being members of the family unit of the applicant with the intention that their visa status is the same as the applicant’s. The Tribunal accepts that if the applicant’s visa is cancelled, there would be consequential cancellation of her husband’s and children’s visas, noting that while the applicant claims that her son is an Australian citizen, the applicant has not provided evidence of that citizenship to the Tribunal as requested.

31. There is nothing before the Tribunal to suggest that the applicant’s spouse and children contributed to the applicant’s non-compliance with condition 8107(3)(b). 

32. Accordingly, the Tribunal gives this consideration some weight against visa cancellation.

    Whether there are mandatory legal consequences of cancellation

33. The applicant currently holds a Bridging E visa.  Due to the current restrictions on international travel caused by the COVID-19 pandemic, the applicant could apply to the Department for a further Bridging visa to enable her and her family to stay in Australia until such time as they are able to depart.  The Tribunal has had regard to the fact that if the applicants fail to depart and do not hold visas allowing them to remain in Australia, the applicants may be liable to be detained under s 189 of the Act or removed under s 198 of the Act.  The Tribunal also notes that the applicant would be subject to s 48 of the Act, limiting her options to apply for further visas while onshore due to the application of Public Interest Criteria (PIC) 4013.

34. The Tribunal gives this consideration some weight against visa cancellation.

35. The Tribunal has also had regard to the possible impact of PIC 4014.  If the cancellation is affirmed and the applicant is required to depart Australia, PIC 4014 may be enlivened in certain circumstances, preventing her from applying for a new visa within three years of departure unless certain criteria are met. In this case, the applicant’s Bridging E visa was granted within 28 days of the Subclass 457 visa being cancelled and provided this continues to apply, the PIC 4014 risk factor will not be enlivened.

36. The Tribunal gives this consideration neutral weight.

    Whether any international obligations would be breached as a result of the cancellation

37. The Tribunal has had regard to whether Australia would be in breach of its international obligations if the decision to cancel the visa is affirmed. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, the Convention Against Torture and Other Cruel Inhuman or degrading Treatment or Punishment (CAT), the International Covenant on Civil and Political Rights (ICCPR) and Australia's responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC).

38. There is no claim or any evidence before the Tribunal that if the applicant or any members of her family return to Sri Lanka they will face persecution, death, torture, cruel, inhuman or degrading treatment or punishment. The applicant has not applied for a Protection visa or made any claims regarding rights under the CAT or ICCPR.

39. In relation to the CRC, the Tribunal notes that this Convention recognises the human rights of children, defined as persons up to the age of 18 years. As the third and fourth named applicants are children at the time of this decision, the CRC applies, requiring their best interests to be a primary consideration.[3]

    [3] Article 3(1) United Nations Convention in the Rights of the Child

40. The applicant has submitted that requiring the children to return to Sri Lanka would cause hardship as they have resided in Australia for some time and have well established school and community connections. The Tribunal accepts that returning to Sri Lanka is likely to have some impact on the applicant’s children and as such is a primary consideration.  However, the Tribunal has also taken into consideration the family unit in this context.

41. As previously noted, the cancellation of the applicant’s visa led to the consequential cancellation of the visa held by her spouse and children. As a result, there is little to suggest that the family unit would be impacted because one of its members would be forced to leave while the others would have separate rights to remain in Australia.  Accordingly, the ability of Australia to comply with the principles of the family unity under the CRC, as well as its international obligations under the CAT and the ICCPR, will not be affected by the cancellation of the applicant’s visa.

42. Therefore, the Tribunal gives neutral weight to this consideration.

    Any other relevant matters

43. At the hearing and in written submissions, the applicant has provided evidence of the efforts by her current employer to attain standard business sponsorship approval and to subsequently lodge a nomination application in favour of her for a Subclass 482 visa, nominating her in the nominated position of Chef.  The Tribunal considers this to be demonstrative of the applicant’s intentions and efforts to secure a visa that would facilitate her and her family remaining in Australia working in the nominated occupation. The Tribunal also notes the evidence before it that the applicant is a valued employee with skills that are extremely difficult to replace in the current environment and that there remains a chronic skills shortage for Chefs and other hospitality workers in Australia.

1. The Tribunal gives these factors some weight against cancellation.

   Conclusion

2. The Tribunal has considered all of the relevant factors and the circumstances of this case.  The Tribunal notes that the factors that led to the applicant being in breach of her visa conditions were beyond her control. However, the Tribunal notes that the applicant has been in breach of those conditions for over two years and remains in breach.  Notwithstanding this, the Tribunal considers that the applicant made extensive efforts to secure a new nomination with an approved sponsor over a number of years and continued to pursue another nomination despite being in breach of her visa conditions.  The Tribunal notes and has considered the impact of the COVID-19 pandemic which hindered the applicant’s capacity to rectify the breach of her visa conditions. The Tribunal acknowledges there will be hardship to the applicants if they are required to return to Sri Lanka. The Tribunal notes that the applicant is now working in her nominated occupation and that her current employer is pursuing a sponsorship of the applicant on the basis of the value they place on the applicant and the considerable skills shortages that exist in the market in Australia. The Tribunal notes that while the purpose of the Subclass 457 visa scheme is intended to provide temporary visas to fill identified skills shortages, the evidence before it is that the applicant continues to meet a skills shortage in the applicant’s nominated occupation.  Accordingly, the Tribunal considers the applicant’s stay in Australia continues to be aligned with the intention of the cancelled visa, being to fill an ongoing skills shortage.

3. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

4. 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 applicant. The visas of the secondary applicants were automatically cancelled as a consequence of that cancellation, by force of the operation of s 140(1) of the Act, not by operation of a decision.  The effect of this provision is that there is a self-executing cancellation of the visas of the other applicants on the cancellation of the applicant’s visa.[4] As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to them.

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

   DECISION

5. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

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

   Phoebe Dunn
   Member