Punnose (Migration)

[2019] AATA 4184

Punnose (Migration) [2019] AATA 4184 (3 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Roshan Punnose
Mrs Jeethu Thankachen
Master Abdiel Roshan
Miss Amelia Ann Roshan

CASE NUMBER:  1903097

HOME AFFAIRS REFERENCE(S):           BCC2018/4893522

MEMBER:K. Chapman

DATE:3 September 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

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

Statement made on 03 September 2019 at 4:46pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – consideration of discretion – restaurant closed by owner – voluntarily chose not to take up offer to work at alternative location – different employer willing to sponsor applicant – nomination application refused – further application for nomination lodged – alleged poor migration advice – applicant’s wife’s difficult pregnancy – ample opportunities to seek alternative employment  – purpose of stay ceased to exist – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

CASES
Botha v Minister for Immigration and Border Protection [2017] FCA 362
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 February 2019 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (‘the Act’).

2. The delegate cancelled the visa under s.116(1)(b) of the Act on the basis that the first named applicant did not comply with condition 8107(3)(b) of his Subclass 457 visa because he ceased to work in the nominated occupation of Cook, in his most recently approved nomination with K. Bhardwaj and S. Bhardwaj T/A Indian Empire Restaurant, for a period exceeding 90 consecutive days. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before it is the decision with respect to the first named applicant. The other applicants’ visas, the wife and children of the first named applicant, 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. The first named applicant, Mr Roshan Punnose, is hereafter referred to as ‘the applicant’.

4. The applicant was granted his most recent Subclass 457 visa on 9 April 2015. The standard business sponsor who nominated him in the most recently approved nomination was K. Bhardwaj and S. Bhardwaj T/A Indian Empire Restaurant (hereafter referred to as ‘the sponsor’). On 4 January 2019, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of his visa on the basis that he failed to comply with condition 8107 of his Subclass 457 visa by ceasing work with the sponsor on 13 April 2018 and not resuming work with the sponsor or an associated entity within 90 days of that time. The NOICC indicates the sponsor informed the Department that the applicant had ceased employment with them on 13 April 2018.  

5. On 14 and 16 January 2019, the applicant responded in writing to the NOICC indicating that he had been without sponsored employment since his Subclass 457 visa was cancelled. It was contended in the response that the applicant has secured a new offer of employment and applications for a nomination and visa application are pending, noting a prior nomination was refused. The applicant contended that he and his family are established in the Australian community and would suffer hardship if his visa was cancelled. It was contended that the applicant has a ‘solid’ migration history.   

6. On 7 February 2019, the delegate cancelled the applicant’s Subclass 457 (Temporary Work (Skilled)) visa. On 11 February 2019, the applicant applied to the Tribunal for review of the visa cancellation decision, providing a copy of the delegate’s decision with his application. On 24 July 2019, the applicant submitted to the Tribunal documents including written submissions, a medical certificate dated 12 July 2018, a letter offering the applicant employment dated 8 April 2019 from Mr D.R. Gummi, and a selection of messages pertaining to a previous registered migration agent acting in relation to another nomination and visa application. All submitted material has been duly considered by the Tribunal.   

7. The applicant appeared before the Tribunal on 31 July 2019 to give evidence and present arguments. The applicant confirmed to the Tribunal that no other person was providing oral evidence in the review. The applicant was represented by his registered migration agent (hereafter referred to as ‘the representative’) who attended the review hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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) of the Act. 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?

10. A visa may be cancelled under s.116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of their visa. Condition 8107(3)(b) provides that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. In this instance condition 8107 was attached to the applicant's visa, which was granted on 9 April 2015 and which, but for its cancellation, was valid until 9 April 2019.

11. During the hearing the applicant advised that he initially made two visits to Australia holding a Visitor visa before obtaining his Subclass 457 visa. He explained that he was working as a chef in Singapore for eight years prior to coming to Australia. The applicant is married and has two children. His first child was born in India during October 2014 and the second was born in Australia in November 2018. The applicant’s wife is a trained nurse in India but as yet has been unable to obtain nursing registration in Australia despite attempts to do so.

12. The applicant advised the Tribunal that he first resided in Brisbane where he worked for the Spicy Affair Indian restaurant which initially sponsored him for the Subclass 457 visa. The applicant told the Tribunal that his cousin owned the Spicy Affair Restaurant. Due to family issues the applicant decided to depart Brisbane and relocate to Devonport, Tasmania. He took up a position with the sponsor for the Subclass 457 visa, K. Bhardwaj and S. Bhardwaj T/A Indian Empire Restaurant. The applicant worked for the sponsor from 17 October 2016 until 13 April 2018. The sponsor also operated another Indian restaurant in Launceston, Tasmania.

13. The applicant initially informed the Tribunal in his oral evidence that the Indian Empire Restaurant in Devonport was closed by the owner due to an illness with his father. The applicant told the Tribunal that the owner offered him a position with his other restaurant in Launceston but he did not take it because he wanted to relocate to Sydney so his wife could pursue a training course to improve her prospects of obtaining nursing registration with the Australian Health Practitioner Regulation Agency (AHPRA). The applicant explained that his wife received a negative decision from the AHPRA in March 2018 and they decided a move to Sydney was necessary to assist her to attempt registration again. Accordingly, the applicant ceased work with the sponsor on 13 April 2018, following a few days of accrued leave.

14. In April 2018, the applicant relocated to Sydney and searched for employment in both Sydney and Melbourne. His wife and children relocated to Sydney in May of that year. The applicant’s sister also lived in Sydney at that time. Following his relocation to Sydney, the applicant maintains that he did not perform work as he was caring for his wife who was ill during her second pregnancy. The applicant advised the Tribunal that he was aware of the 90 day requirement regarding Condition 8107 and at one time made arrangements to depart Australia, however he claimed he received erroneous advice from a previous migration advisor. This is a matter to which the Tribunal shall return.

15. The applicant advised the Tribunal that he did not undertake employment in Australia from 13 April 2018 until following the grant of a Bridging Visa E with full work rights on 28 February 2019. It is worth pausing to reflect that this is a period of almost one year. The applicant advised he undertook some casual employment during March 2019 and then he obtained employment in a production kitchen operated by About Life Pty Ltd. The applicant has worked for that company from April 2019 until the present time. About Life Pty Ltd is not sponsoring the applicant for a visa purpose.

16. The Tribunal canvassed with the applicant how he financially supported himself during the time he remained in Australia without full work rights. He indicated that his sister had assisted with rental contributions and that he and his wife had approximately $25,000 from the proceeds of stock held in a petrol station that his wife previously ran in Devonport. The applicant explained that his wife leased this business whilst they resided in Tasmania then sold the lease when they moved to Sydney. He maintained that he had never performed work at the petrol station and advised they were expecting to receive back their deposit of around $15,000 for the business shortly. The applicant advised the Tribunal that he had never worked in any other position other than as outlined. He agreed that he has not worked in sponsored employment since 13 April 2018. The applicant also agreed that he had breached Condition 8107 by ceasing employment with the sponsor for a period exceeding 90 days.

17. The applicant informed the Tribunal that following his departure from employment with the sponsor, he attempted to secure another nominator for his Subclass 457 visa. He performed various trials in restaurants and was offered sponsored employment at the Amritsari Dhaba restaurant in Sydney, which is run by Mr D.R. Gummi. Apparently Mr Gummi was so impressed with the applicant following his one day trial in April 2018 that he attempted to nominate him for the position of cook in his restaurant. The applicant advised the Tribunal that he is not related to Mr Gummi, although Mr Gummi gave him a gift of around $2,000 when his second child was born, as is the custom of persons of Indian heritage.

18. When asked by the Tribunal why he was not working at the Amritsari Dhaba restaurant if he is required by Mr Gummi, the applicant advised there was another person working there in the role. When asked if he knew what would happen to the other worker if he was successfully nominated and commenced work there, the applicant explained that Mr Gummi wanted to expand the business with a catering arm. The applicant maintained that Mr Gummi wants him to start work but has been unable to do so without a nomination being approved. A letter from Mr Gummi dated 8 April 2018 was submitted to the Tribunal indicating his offer of employment and directing the applicant to a Mr Thota Srinivasan to assist with the migration requirements.

19. As reflected in the delegate’s visa cancellation decision, an application for nomination of the applicant in connection with the Amritsari Dhaba restaurant was lodged on 27 August 2018 and refused on 9 October 2018. The applicant maintained that he and the nominator received erroneous migration advice from Mr Srinivasan which led to the nomination being refused. The applicant submitted that Mr Srinivasan was tardy in relation to progressing the nomination application and submitted emails in support of this contention. One email indicates Mr Srinivasan accused the Department of making an erroneous nomination refusal decision by not referring to submitted evidence. The applicant also indicated that he received confusing advice in relation to the 90 day requirement in Condition 8107 which saw him remain in Australia, although ultimately he agreed that he was aware of the particulars of that Condition. In summary, the applicant contends that the poor migration advice of Mr Srinivasan saw the nomination application lodged on 27 August 2018 be refused on 9 October 2018. 

20. As reflected in the delegate’s visa cancellation decision, a fresh application for nomination of the applicant in connection with the Amritsari Dhaba restaurant was lodged on 8 January 2019, four days after the NOICC was issued to him. On 9 January 2019, the applicant lodged an application for a Subclass 482 visa. The aforementioned applications were lodged with the assistance of the current representative and remain pending. The applicant’s Bridging Visa E with full work rights was granted to him on 28 February 2019, following the cancellation of his Subclass 457 visa. The applicant maintains that he has not breached visa conditions other than Condition 8107.

21. The applicant also contended that his wife had a very difficult first pregnancy and also experienced difficulties during her second pregnancy in 2018. Accordingly, the applicant’s wife had a period of bedrest when she moved to Sydney to join the applicant from May 2018 until the child was born in November that year. Submitted medical evidence supports the aforementioned matters regarding the pregnancy of the applicant’s wife and the Tribunal accepts the veracity of that evidence. The applicant contends that the issues with his wife’s pregnancy made it stressful for them and harder for him to search for sponsored employment.

22. The applicant advised the Tribunal that he is waiting for the result of this review. He wishes for his eldest child to commence his first year of school in Australia in 2020. Neither of the applicant’s children attend school yet as they are too young. The applicant’s wife is attempting to apply to the AHPRA again for registration but she must attend another course and complete another English language test. She is working in aged care currently.

23. The Tribunal raised with the applicant that all of the Australian visas he has held, including the Subclass 457 visa, are temporary visas. The purpose of granting a temporary work visa is to enable an Australian business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. There should be no expectation that the grant of a Subclass 457 visa would lead to permanent residency or an extended stay in Australia. The Tribunal outlined that the applicant ceased employment with his most recently approved nominator on 13 April 2018 which tends to suggest that his purpose for being in Australia has concluded and his visa should be cancelled. The applicant was invited to comment and responded that he was looking for a better career in Australia following his work in Singapore and he wanted a better future in Sydney as Tasmania did not have the training opportunities for his wife. The Tribunal raised with the applicant that his earlier oral evidence was that he voluntarily left his employment with the sponsor after being offered a position in their other restaurant. The applicant responded that he had to wait an extra three months to start at the Launceston restaurant so that is why he departed.  

24. The Tribunal raised with the applicant that given the Subclass 457 visa is a temporary work visa its grant should not create an expectation of further stay, he has not worked for an approved nominator in an approved occupation since 13 April 2018, his visa would have expired on 9 April 2019 in any event, a previous nomination application on his behalf was refused on 9 October 2018, and that these matters might tend to suggest the Tribunal need not await the outcome of his latest nomination and visa applications and that his visa should be cancelled. The applicant was invited to comment but declined to do so.

25. The Tribunal canvassed with the applicant if there was any reason he could not apply for another visa offshore and he advised there was not. The Tribunal raised with the applicant that he appeared to have gained skills and experience in the Australian work force which would make him more marketable in the Indian job market if he had to return to his country of nationality, inviting his comment. The applicant agreed that he obtained a positive VETASSESS outcome in Australia and he has special skills in tandoori. However, he contended that his skills would not help him in India because many people have these skills and it is hard to obtain a job there.

26. The applicant maintained that he has a compelling need to remain in Australia because he wants a better career and the future for his family is better in Australia. He contends his father is receiving dialysis treatment in India and will face hardship if his visa is cancelled because he is sending remittance income to assist. The applicant also advised that his sister is also sending remittance income for this purpose. The applicant raised no other issues of hardship if his Subclass 457 visa was to be cancelled. The Tribunal canvassed the mandatory legal consequences of visa cancellation and consequential visa cancellation with the applicant during the review hearing. He raised no substantive issues in relation to them other than asking if his wife could still obtain a visa to study. The applicant indicated there are no international obligations concerning his circumstances that he wished to raise and cited no claims in connection with Australia’s non-refoulement obligations.

27. The applicant informed the Tribunal that if his visa is cancelled then his wife and children will return to India with him. The Tribunal raised with the applicant that given the aforementioned evidence this might tend to suggest that the best interests of his children will not be infringed if his visa was cancelled, inviting his comment. The applicant had no comment to make. The applicant did not wish to raise any other matters regarding the cancellation of his Subclass 457 visa.

28. According to the procedure in s.359AA of the Act, the Tribunal raised with the applicant the following information:

    ·The Department file BCC2018/4893522 at folio 7 contains a note indicating the Department received an allegation in 2018 that the applicant was working for cash performing trolley pushing in Kmart Devonport and also at United Petrolium Sassafras doing private car sales; and

    ·At the hearing today the applicant indicated he had never worked anywhere other than as discussed.   

29. The Tribunal indicated that this information is relevant to the review as it tends to suggest that the applicant has not complied with Condition 8107 and that discretion should be exercised to cancel his visa. The Tribunal indicated that if it were to rely upon the s.359AA information it would be the reason or part of the reason to affirm the decision under review. The applicant confirmed that he understood why the information is relevant to the review.

1. The applicant was offered an adjournment before commenting on or responding to this information, however he chose to respond immediately. He denied working at either establishment and attributed the ‘dob-in’ information to the previous owners of the United Petrolium Sassafras business, who were jealous of he and his wife when his wife took over from them. Following careful consideration, the Tribunal places no weight upon the s.359AA information given its anonymous source, lack of detail and accepting the explanation of the applicant.

2. The representative made oral submissions at the conclusion of the review hearing contending that the applicant proactively attempted to find sponsored employment following his departure from the sponsor, he is a skilled cook, Mr Gummi requires his services, his wife’s illness didn’t assist and he received ‘mixed signals’ from his previous advisor. The representative outlined that the applicant made arrangements to depart Australia which indicates he is not gaming the system. He advised that the applicant is aware of the temporary nature of the Subclass 457 visa, he wants his wife to study and he has been unlucky with the circumstances that have unfolded. The Tribunal has duly considered these submissions.

3. Following careful consideration, the Tribunal finds that the applicant ceased employment with the sponsoring business, K. Bhardwaj and S. Bhardwaj T/A Indian Empire Restaurant on 13 April 2018. Additionally, the Tribunal finds that the period during which the visa holder ceased employment exceeded 90 consecutive days. The Tribunal therefore finds that the applicant did not comply with condition 8107(3)(b) attached to his Subclass 457 visa.

4. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act exists. As that ground does not require mandatory cancellation under s.116(3) of the Act, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

   Consideration of discretion

5. 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’.

6. The Tribunal has also very carefully considered the attribution of weight to the evidence before it in assessing whether the applicant’s visa should be cancelled. In doing so, the Tribunal is mindful of the observations of Collier J in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [39]:

   There is ample authority at high level in this country that it is for a decision-maker to attribute such weight to relevant information as it sees fit: see for example Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24]; Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [197]; the plurality in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33].

7. The applicant’s background has been detailed above. He held a temporary visa prior to the grant of his most recent temporary Subclass 457 visa on 9 April 2015. The Subclass 457 visa would have expired on 9 April 2019 but for its cancellation. The Tribunal considers that the purpose of the applicant’s stay in Australia holding a Subclass 457 visa is to work for an approved business sponsor, being K. Bhardwaj and S. Bhardwaj T/A Indian Empire Restaurant, in the approved nominated occupation of cook. The applicant ceased this employment on 13 April 2018. On his own evidence, the applicant has not worked in Australia for an approved sponsor in an approved occupation since that time, notwithstanding that he has subsequently undertaken unsponsored employment.

8. The Tribunal considers it a matter of significance that the applicant has not yet obtained a current approved nomination with an approved sponsor. As previously outlined, the applicant seeks a nomination from Mr Gummi, however on 9 October 2018 his initial nomination application was refused. A further nomination application and associated visa application remain pending. Whilst the applicant maintains that the refusal of the initial nomination application lodged by Mr Gummi arose from the receipt of poor migration advice, nevertheless the result of that application was its refusal by the Department. There is no evidence before the Tribunal to suggest that the pending nomination application of Mr Gummi, and associated visa application, have been approved. It is worth pausing to reflect that there is no evidence of the applicant having engaged in approved sponsored employment since 13 April 2018, a period of approximately 16 months at the time of this decision.

9. The Tribunal considers that the applicant has had a lengthy period of time in which to seek alternate employment opportunities and become the subject of an approved nomination by an approved sponsor, he could pursue other visa options offshore, he has not worked for an approved sponsor with an approved nomination for a significant period of time, and it is inconsistent with the purpose of the Subclass 457 visa to allow him to remain in Australia pending the pursuit of other visa options.

10. For completeness, the Tribunal does not accept that alleged poor migration advice and the difficult pregnancy of the applicant’s wife during 2018 alter the position that following a significant period of time since ceasing employment with his approved sponsor on 13 April 2018, the applicant still does not have a new approved nomination. Indeed, the first nomination lodged by his purported new sponsor was refused on 9 October 2018 as reflected in the delegate’s visa cancellation decision and the Tribunal does not accept its refusal may be attributed to the actions of a previous migration agent as an applicant (be they a nominator or visa applicant) is responsible for the information provided to the Department in connection with their application.

11. Further, there is no persuasive evidence before the Tribunal that the applicant made efforts with other prospective sponsors to obtain a new nomination. It is also worth pausing to reflect that the applicant’s Subclass 457 visa would have expired on 9 April 2019 if it were not earlier cancelled. Whilst the Tribunal accepts that the difficult pregnancy of the applicant’s wife placed him and his family under additional stress, it is not satisfied that this circumstance accounts for the applicant not having obtained a new approved sponsor some 16 months after his cessation of employment with his original approved sponsor.   

12. Following careful consideration, the Tribunal considers that the purpose of the applicant’s stay in Australia is no longer extant given the aforementioned matters, notwithstanding his attempts to be sponsored by Mr Gummi. On balance, the Tribunal finds that this factor weighs strongly in favour of cancelling the applicant’s visa.

13. As previously outlined, the Tribunal has found that the applicant breached condition 8107(3)(b) of his visa as the period during which he ceased employment with the sponsor exceeded 90 days. During the review hearing, the Tribunal canvassed with the applicant what other employment he had obtained since departing employment with his approved sponsor. The applicant doggedly maintained that following the cessation of his employment with the sponsor, he did not work for another employer until after being granted a Bridging Visa E with full work rights on 28 February 2019, a period of almost one year. Following careful consideration, the Tribunal accepts that the applicant did not undertake paid employment with another employer in breach of his visa condition, as he was able to sustain himself from the proceeds of the petrol station business operated by his wife in Tasmania until after he was granted his Bridging Visa E with full work rights. Accordingly, the Tribunal accepts that the applicant has not breached any visa conditions in Australia other than condition 8107(3)(b). On balance, following careful consideration, the Tribunal finds that the extent of the applicant’s compliance with visa conditions weighs moderately in favour of cancelling his visa given the centrality of compliance with condition 8107(3)(b) to the purpose of the grant of the Subclass 457 visa.

14. The Tribunal has also had regard to the circumstances of the visa cancellation. In his initial oral evidence, the applicant advised that he ceased employment with the sponsor as the Indian Empire Restaurant in Devonport was closed by the owner due to an illness with his father and the applicant was offered a position with the owner’s other restaurant in Launceston. The applicant told the Tribunal that he did not accept that position as he wanted to relocate to Sydney so his wife could pursue a training course to improve her prospects of obtaining nursing registration with the AHPRA. Accordingly, he ceased employment with the sponsor on 13 April 2018. The applicant subsequently changed tack with his oral evidence to advise that he did not take up the offer of employment in Launceston with the sponsor as he had to wait an extra three months to start at that restaurant. On balance, the Tribunal prefers the initial spontaneous oral evidence of the applicant to his ex post facto attempt to portray his cessation of employment with the sponsor as beyond his control. Following careful consideration, the Tribunal is satisfied that the applicant voluntarily chose not to take up employment in the Launceston restaurant operated by the sponsor, as he preferred to move to Sydney to pursue study options for his wife. The Tribunal finds that the circumstances of the visa cancellation weigh strongly in favour of cancelling the applicant’s visa given his voluntarily decision to decline further employment with the sponsor in Tasmania.    

15. The Tribunal has also considered the hardship that may be experienced if the applicant’s visa is cancelled and whether there is any compelling need for him to remain in Australia. The Tribunal notes the applicant maintained that he has a compelling need to remain in Australia because he wants a better career and the future for his family is better in this country. He contends his father is receiving dialysis treatment in India and will face hardship if his visa is cancelled because he is sending remittance income to assist. The applicant also outlined that he wishes his eldest child to commence schooling in Australia and for his wife to continue her studies for the purpose of gaining AHPRA registration.  

16. Whilst the Tribunal accepts that it is the preference of the applicant to remain working in Australia where wages are higher than in India, it notes he has developed valuable skills and experience which would make him more marketable in the Indian job market. The Tribunal does not accept that the applicant will be unable to obtain work and re-establish himself in India given his personal qualities and work experience. Therefore, the Tribunal is satisfied that the applicant would be able to assist his father financially even if he departs Australia. Further, the Tribunal notes that the applicant’s sister continues to send remittance income from Australia to their father. Whilst the Tribunal accepts that it is the applicant’s preference to pursue his career in Australia, to have his immediate family reside in this country where it is said they are established, for his eldest child to commence schooling in Australia and for his wife to study in order to obtain AHPRA registration, the Tribunal is satisfied that the applicant and his family can pursue their career and study goals in India if his visa is cancelled. Indeed, neither of the applicant’s children are of school age yet and nothing precludes them from commencing their schooling in their country of nationality.

17. As raised with the applicant during the review hearing, the purpose of the Subclass 457 visa is to enable an Australian business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. It is not the purpose of this visa to enable the applicant’s family to remain in Australia in order to access better educational facilities or other social infrastructure, or to derive income for remittance purposes. Whilst the Tribunal accepts that some upset might be caused to the applicant, his wife, their children and other family members if they depart Australia, there is no persuasive evidence (including medical evidence) to suggest that such upset would have any detrimental long term consequences.

18. Following careful consideration, the Tribunal does not accept that the applicant has a compelling need to remain in Australia. Additionally, whilst the Tribunal accepts that if his visa is cancelled some hardship will be caused to the applicant and his family, including those in India, any such hardship weighs only slightly against the cancellation of his Subclass 457 visa, particularly given the temporary nature of this visa.

19. The Tribunal notes that the visas of the applicant’s immediate family members will be consequentially cancelled pursuant to s.140 of the Act if his visa is cancelled. However, the visas of the secondary visa holders were granted on the basis of them being members of the family unit of the applicant and it is the intended consequence of the legislation that members of the same family have the same visa status. In any event, the Tribunal notes the evidence of the applicant that the family unit will return to India together if his visa is cancelled and thus they will not be separated from each other. Following careful consideration, the Tribunal finds that the consequential cancellation of the visas held by the secondary visa holders weighs neither in favour of, nor against, the cancellation of the applicant’s visa in the aforementioned circumstances.

20. Regarding the applicant’s past and present conduct towards the Department, there is no evidence before the Tribunal to suggest that he has not been cooperative in his dealings with them. The Tribunal finds that this circumstance weighs moderately against cancelling his visa.

21. With respect to the mandatory legal consequences of visa cancellation, the Tribunal notes that if the applicant and members of his family do not hold a valid visa they would be unlawful non-citizens and subject to immigration detention, it would be difficult for them to make visa applications in Australia and they would be liable to removal from Australia. However, the Tribunal also notes that it is unlikely the applicant (and his family) will be affected by the three year exclusion period in PIC 4013 and 4014 if he applies for a temporary visa offshore given his circumstances, including that he obtained a Bridging Visa E shortly after his Subclass 457 visa was cancelled. On balance, the Tribunal finds that the mandatory legal consequences of cancellation weigh neither in favour of, nor against, cancellation of the applicant’s visa given they are the intended consequences of the legislation.

22. In relation to the consideration of Australia’s international obligations, there is no persuasive evidence before the Tribunal that any such obligations would be breached as a result of the applicant’s visa being cancelled. As previously described, the Tribunal does not accept there will be any significantly adverse consequences for the applicant and his family, including his children, if they depart Australia. The Tribunal has carefully considered Australia’s international obligations arising from the Convention on the Rights of the Child (CROC) with respect to the present case. Given that the applicant, his wife and two children will return to India together as a family unit if his visa is cancelled, in conjunction with matters previously expressed concerning the schooling of the children, the Tribunal is satisfied that there will be no breach of CROC obligations if the applicant departs Australia. This circumstance weighs neither in favour of, nor against, the cancellation of the applicant’s visa.

23. There is no evidence before the Tribunal to suggest that there would be any breach of Australia’s non-refoulement obligations if the applicant’s visa is cancelled. Accordingly, the consideration of Australia’s international obligations weighs neither in favour of, nor against, the cancellation of the applicant’s visa.

24. The Tribunal has carefully considered all relevant circumstances pertaining to the applicant’s case and does not consider there is any other circumstance weighing either in favour of, or against, cancellation of his visa.   

    CONCLUSION

25. The Tribunal has carefully reflected upon the factors both against, and in favour of, cancelling the applicant’s Subclass 457 visa. As outlined above, the Tribunal notes that some factors weigh against cancellation of the visa. These factors must be carefully balanced with those in favour of the visa cancellation. On balance, following much consideration, the Tribunal finds that the factors in favour of cancelling the applicant’s visa outweigh those factors to the contrary.

26. Considering the circumstances as a whole, the Tribunal concludes that the applicant’s visa should be cancelled.

    DECISION

27. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

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

    K. Chapman

    Member