Rasakkon (Migration)

[2018] AATA 4826

Rasakkon (Migration) [2018] AATA 4826 (5 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Suthas Rasakkon

CASE NUMBER:  1714970

HOME AFFAIRS REFERENCE(S):           BCC2017/1129541

MEMBER:John Cipolla

DATE:5 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 05 October 2018 at 2:01pm

CATCHWORDS
MIGRATION – Cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled) – ceased work with sponsoring business – fair opportunity to secure another nomination – current sponsoring business seeking review with Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116
Migration Regulations 1994 (Cth), Schedule 8 condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 4 July 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the 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) on the basis that the applicant did not comply with condition 8107(3) of his Subclass 457 visa because the applicant ceased to work in his nominated occupation in his most recently approved nomination. The delegate noted that the standard business sponsor who nominated the applicant in his most recently approved nomination for the visa was Summer Healing Yoga Pty Ltd. The Department had information before them that indicated that the applicant ceased work with the sponsoring business on or before 26 October 2016. The delegate based on this concluded that the applicant ceased employment with the sponsoring business and that the period during which the holder ceased employment exceeded 90 consecutive days.

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

4. Recourse to the Departmental file indicates as follows. 

5. The applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa. The NOICC was dated 15 May 2017.  The NOICC notes that the applicant was granted a Subclass 457 visa on 5 October 2016 and that this visa was subject to a range of conditions including condition 8107. The NOICC notes that on 21 October 2016 the sponsoring business advised the Department in writing that the applicant had ceased employment with them effective 21 October 2016. The notice gave the applicant an opportunity to comment on whether or not he agreed that the grounds for cancellation existed and whether or not his visa should be cancelled.

6. In response to the NOICC the applicant provided a number of documents.  These included a letter from a Director of Kriya Yoga Pty Ltd indicating that she had lodged a sponsorship and nomination application with the Department on 9 June 2017 for the applicant to work in her business as a Fitness Instructor.  The applicant also provided a submission stating that he had found a new employer to sponsor him called Kriya Yoga and that this business had lodged a nomination application with the Department on 9 June 2017. The applicant stated that in November 2016 he was approached by a gentleman by the name of Tony Simpson to work for his Yoga business but unfortunately the applicant’s young daughter in Sri Lanka became critically ill and he had to return to Sri Lanka on 18 December 2016 to be by her side. The applicant advised that he then returned to Australia from Sri Lanka in mid-January 2017 and that Tony Simpson decided to discontinue the visa nomination. The applicant advised that he was then approached in February 2017 by Mr Ranbir Singh who wanted to engage the applicant as a Yoga instructor, but Mr Singh was not able to proceed with a nomination as he did not have sufficient funds to finance capital expenses and overheads. The applicant stated that he had a further opportunity to be nominated as a full-time Yoga teacher in Westmead in March 2017 however this was not able to proceed. The applicant stated that his wife stayed home in Sri Lanka and looked after his daughter and elderly grandmother and that he was the only source of income for the family. The applicant stated that if you returned to Sri Lanka it would be difficult for him to find a job. The applicant asked that these factors be taken into consideration by the Department.

7. The Department of Immigration proceeded to cancel the applicant’s visa in a decision made on 4 July 2017.

8. The applicant lodged an application for merits review with the Tribunal on 12 July 2017.

9. On 26 June 2018 the Tribunal wrote to the applicant inviting the applicant to comment on or respond to information that the Tribunal considered could be the reason, or part of the reason, for affirming the decision under review. The letter noted that the applicant had been granted a Subclass 457 visa on 5 October 2016, valid to 5 October 2020, however his visa was cancelled on 4 July 2017. The Tribunal noted that the applicant was sponsored for this visa by Summer Healing Yoga Pty Ltd.  The letter noted that the applicant’s Subclass 457 visa was subject to condition 8107 work restriction, which required that the applicant must not cease to be employed by his approved sponsor and that if he ceased employment the period must not exceed 90 consecutive days.

10. The Tribunal received a response to this letter from the applicant’s migration agent. The response notes that the applicant is a highly qualified Yoga practitioner who has a Bachelor of Science degree in yoga from Bangalore in India. The submission notes the applicant’s immigration history to date and includes a letter of support for the applicant from Kriya Yoga Pty Ltd, email correspondence between a prospective sponsoring business run by Mr Tony Simpson and the applicant, a letter from the applicant’s daughters treating physician in Sri Lanka and email correspondence between the applicant and another prospective business sponsor Mr Ranbir Singh.  This information has been duly considered by the Tribunal.

11. The Tribunal conducted a review hearing on 2 October 2018. The applicant attended the hearing along with his representative and Ms Namita Gove the owner of Kriya Yoga.

12. The Tribunal conducted a hearing on 2 October 2018. The applicant attended the hearing as did his prospective employer and his representative. At the outset of the review hearing the Tribunal went into extensive detail about the process of merits review and the respective issues in the review.

13. The applicant gave his name and date of birth. The Tribunal asked the applicant what year he arrived in Australia for the first time and he advised on 14 September 2014 as the holder of a Subclass 457 visa. The Tribunal asked the applicant for the name of the sponsoring business and he advised that the business was called 8 Limb Yoga Pty Ltd based in Mackay in Queensland. The applicant stated that this visa was valid until 14 September 2018.

14. The Tribunal asked the applicant how long he worked in the business. The applicant stated for 10 months. The Tribunal asked the applicant why he only worked for the business for 10 months given that the expectation was that he would be working for 4 years with this business. The applicant stated that he did not know how Yoga worked in Australia when he first arrived in the country. He advised that after 10 months the business decided to let him go. The applicant stated that during the 10 month period that he was with the business he trained 18 teachers at this studio and the applicant claims that after this point the business could not afford to pay his salary.

15. The Tribunal asked the applicant what he did at this point. He advised that the business sent him a termination notice and he then changed his visa from a Subclass 457 visa to a Subclass 572 student visa. The Tribunal asked the applicant when he transitioned to this Student visa and he advised before the expiration of the 90 day period, after he ceased employment with the Mackay business.

16. The Tribunal asked the applicant about his study history. He advised that he relocated from Mackay to Melbourne and studied at the Acumen Institute located in the central business district of Melbourne. The applicant stated that over the next 14 months he undertook a Diploma in Business and an Advanced Diploma in Business which he successfully completed.

17. The Tribunal asked the applicant what he did upon completing his studies. The applicant stated that he made an application for a further Subclass 457 visa which he obtained in around September or October 2016 which was valid for 4 years until 2020. The applicant stated that the sponsoring business was Summer Healing Yoga Pty Ltd located in Glen Waverley and Carnegie in Melbourne. The applicant stated that he is commenced working on a part-time basis for this business in April 2016 whilst a student and then obtained the Subclass 457 visa to work for the business on a full-time basis.

18. The Tribunal asked the applicant how long he worked full-time for the sponsoring employer. The applicant stated that when he obtained his Subclass 457 visa he was told by the sponsoring business they could not have him full-time work. The Tribunal noted that the applicant would have had a contract of employment for 38 hours per week and the Tribunal asked the applicant if the sponsoring employer was not able to honour this obligation as per the contract of employment why he did not go to the Department of Immigration to ascertain what options were available to him. The applicant stated that he was new in Australia, and that he went to a migration agent in Melbourne for advice rather than going to the Department.

19. The applicant advised that he returned to Sri Lanka in December 2016 as his young daughter was critically ill. The Tribunal asked the applicant whether he undertook work for anybody during the period October to December 2016 and the applicant advised that he had not. The applicant stated that he spent one month in Sri Lanka visiting his daughter and then returned to Australia. The Tribunal asked the applicant was wrong with his daughter at this time and he advised that she was suffering with tetanus. The applicant stated that he returned to Australia on 14 January 2017 and that he managed to get an offer of employment with a Sydney-based Yoga business.

20. The Tribunal asked the applicant whether he had worked in Australia upon his return from Sri Lanka in January 2017. The applicant stated that he had not worked since ceasing employment with the sponsoring business in October 2016. The Tribunal asked the applicant how he had managed to sustain himself in Sydney, the most expensive city in Australia for such an extended period without working. The applicant stated that he had a sister-in-law residing in Seven Hills and that he was supported by her and he also lived with and was supported by a friend. The Tribunal asked the applicant whether he possessed a tax file number in Australia and he advised that he did. The Tribunal stated that if it was to check with the Australian Tax Office whether there was any tax activity between January 2017 and October 2018 it would indicate employment. The applicant stated that when the Department cancelled his visa he was advised that he had no work or study rights.

21. The Tribunal noted that the applicants 457 visa history in Australia had been unsuccessful. The Tribunal noted that the applicant travelled to Mackay to work for his first sponsoring business but only worked for 10 months before his employment ceased as a result of the termination of his employment. The Tribunal noted that his second 457 visa was granted to enable him to work for a Yoga business in Melbourne, Sunshine Healing Yoga, however this was not successful as he never commenced working for this business in October 2016 the time his visa was granted. The Tribunal noted that apart from the applicant’s period as a student, his immigration history had largely been unsuccessful. The Tribunal noted that the applicant had a wife and young child living in Sri Lanka and asked the applicant why he did not return to Sri Lanka to reunite with his family given the lack of success as a 457 visa holder. The applicant was invited to comment.  The applicant stated that he started as a Yoga teacher in 2013. The applicant stated that the first opportunity he had to work overseas was when he successfully applied for a Subclass 457 visa. The applicant stated that he was planning to apply for a Subclass 482 visa and was hoping that the cancellation record could be removed. The applicant stated that having an adverse cancellation record in Australia would impact upon other visa applications in other countries. The applicant stated for example if he was to make an application for a visa to the United Kingdom the cancellation of a visa on his record would preclude the success of that prospective application. The applicant stated that for that reason he wanted the cancellation removed.

22. The Tribunal noted that when the applicant was granted a Subclass 457 visa to work in Australian businesses, firstly in Mackay, and secondly in Melbourne, that he would have signed a contract of employment with each prospective employer to undertake work for between 38 and 40 hours per week and that he would have been cognisant of the fact that the visas were valid for 4 years each.  The applicant confirmed this.  The Tribunal noted that the applicant worked for the Mackay business for 10 months and that he did not commence work for the Melbourne business, the Tribunal asked the applicant why he failed to go to the Department of Immigration to get some assistance or direction from the Department after each period of sponsored employment failed. The applicant stated that when he obtained the 457 visas he was only employed to work as a Yoga teacher and did not know how Australian businesses worked. The Tribunal noted that the applicant would have received letters from the Department pertaining to the grant of his Subclass 457 visas and these would have clearly spelt out the conditions applicable to the grant of each of these visas. The Tribunal asked the applicant why, when issued with a 4 year 457 visa to work in the Mackay business that he ceased employment after 10 months and did not commence employment with the sponsoring business in Melbourne after being granted a 4 year visa to work in this business. The Tribunal suggested that all of this information would have alerted him to the fact that he was in breach of his visa conditions and that he should have approached the Department to attempt to regularise his migration status. The applicant stated that he did not know how to locate the Department and he only knew how to obtain advice through his migration agent in Melbourne.

23. The Tribunal asked the applicant whether he had a fear of approaching the Department on the basis that he may be deported to Sri Lanka because his employment contracts had ceased. The applicant stated that he did not come to Australia as a refugee and that he came to Australia as a spiritual yoga teacher. The applicant stated that he had now found in employer, willing to sponsor him to work as a Yoga teacher in Sydney. The applicant stated that since coming to Australia 4 years ago he had been back to Sri Lanka on 3 occasions, to India on 2 occasions and travelled to Amsterdam to attend his brother’s wedding.

24. The Tribunal asked the applicant how he was affording to travel overseas on numerous occasions and to pay the ongoing costs of his migration agent. The applicant stated that when he returned to Sri Lanka he trained Yoga teachers and made significant money as a consequence.

25. The Tribunal asked the applicant what hardship he would experience if his visa remained cancelled. The applicant stated that he does not currently have a Yoga Centre in Sri Lanka. The applicant stated that he trains Yoga teachers. The applicant stated that he is 37 years old and it would take 1 to 2 years to establish a Yoga Centre in Sri Lanka. The Tribunal noted that the applicant in his evidence had advised that on return trips to Sri Lanka he had been able to make good money training people to be Yoga teachers which indicated that he was innovative and skilful. The applicant stated that he had only been back to Sri Lanka for short periods of time and that he had been living outside of Sri Lanka for 4 years now. The applicant stated that it would take him some time to reacquire a Yoga Centre in Sri Lanka. The applicant stated that if his visa was not cancelled that he could potentially work in Australia.

26. The Tribunal asked the applicant whether there were any further reasons that he would experience hardship if his visa was cancelled other than difficulty re-establishing himself again in Sri Lanka. The applicant stated that in the past 17 months he had accumulated many expenses and was indebted to a number of people. The applicant stated that his main objective was to go to places and preach spiritual yoga. The applicant stated that he was given his first opportunity in Australia to do this. The applicant stated that he did not plan to stay in Australia permanently. The applicant stated that if he wanted to stay in Australia he could have made an application for asylum. The applicant stated that he studied Yoga extensively and came here on the basis of his skills as a Yoga teacher. The applicant stated that if the cancellation remained on his record he would be precluded from applying for visas in other countries.

27. The Tribunal took evidence from the applicant’s witness and owner of Kriya Yoga Pty Ltd Ms Namita Gove. The witness stated that she had established a business in Seven Hills and was in the process of establishing a second business in Gosford.

28. The Tribunal asked the witness the basis of the refusal of the nomination application to the Department. The applicant stated that the Department proceeded to a quick decision on her nomination application without enabling her to provide additional evidence. The witness stated that she would be able to employ the applicant on a full-time basis. She advised that she would be able to manage the Seven Hills business and the applicant would be able to manage the Gosford business. She advised that the applicant was very skilled and that he had taught 3000 students over a 12 year career. The witness stated that the applicant was competent in teaching Kriya Yoga. The witness stated that the applicant would be an asset to her business and that he was able to undertake deep cleansing meditations to help with anxiety and depression. The witness stated that she hoped that the cancellation of the applicant’s visa would be revoked. The witness stated that she believed that her studios offered differential services to those offered by other Yoga studios. The witness stated that she did not have teachers that could teach Kriya yoga. She advised that a unique aspect of the business was its ability to teach this type of yoga and that the inability to engage competent teachers in this Yoga style would mean the business would need to change its name and its teaching styles.

29. The Tribunal deferred to the representative to ask whether he had any final submissions. The representative implored the Tribunal to consider the exercise of discretion. He advised that the applicant would experience hardship if he had to return to Sri Lanka and re-establish himself in that country. The representative stated that the cancellation of the applicant’s visa would inhibit travel overseas. The hearing concluded.

    Does the ground for cancellation exist?

30. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 attached to the applicant’s visa. Of relevance in this case is 8107(3)(b) which requires that if the applicant ceases the relevant employment, the period during which the applicant ceases employment must not exceed 90 consecutive days.

1. The evidence before the Tribunal indicates that the applicant was granted the 457 visa on 5 October 2016 on the basis of a nomination by Summer Healing Yoga Pty Ltd (the sponsor). The sponsor advised the Department that the applicant ceased employment with them effective 21 October 2016. The applicant has confirmed that he did not commence working for the sponsor and that after the 457 visa was granted to him he was told by the sponsor that there was no full time work available to him.  The applicant stated that prior to the grant of the Subclass 457 visa he undertook part time work with this business but after 457 visa grant he did not.

2. The evidence before the Tribunal indicates that the applicant did not become the subject of an approved nomination by an approved sponsor within 90 days of ceasing employment with Summer Healing Yoga Pty Ltd.  On this basis, the Tribunal finds that the period during which the applicant ceased the relevant employment had exceeded 90 consecutive days. The Tribunal accordingly finds that the applicant did not comply with condition 8107(3)(b). 

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

   Consideration of discretion

4. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

5. The Tribunal has first considered the purpose of the applicant’s travel to and stay in Australia. At the hearing the applicant provided details of his immigration history.  As has been noted the applicant advised that he arrived in Australia as the holder of a Subclass 457 visa on 14 September 2014, to work for his then sponsoring business, 8 Limb Yoga Pty Ltd, based in Mackay in Queensland. The applicant advised that this visa was valid for 4 years until 14 September 2018. The applicant advised that despite entering into a contract for full-time employment with this business, that he ceased working for this business after 10 months. The applicant stated that during the 10 months of his employment he trained a number of yoga teachers and was then advised by the business they could not afford to pay his ongoing salary. As a consequence the applicant ceased employment with his sponsoring employer and applied for and was granted a Subclass 572 student visa. The evidence before the Tribunal indicates the applicant then spent the next 14 months undertaking business studies at an education facility in Melbourne Victoria. The applicant stated that upon completion of this study he obtained a further Subclass 457 visa with the sponsor Summer Healing Yoga Pty Ltd. The applicant stated that this visa was obtained in October 2016 and was valid for 4 years until October 2020. Once again the applicant entered into a contract of employment with this business but never commenced work with this business as, according to the applicant, this sponsor could not provide him with full-time work.

6. The applicant submitted that he had made efforts to find another sponsor after ceasing employment with Summer Healing Yoga Pty Ltd.  The applicant stated that in November 2016 Mr Tony Simpson approached him to work for his Yoga business as a full-time employee. The applicant stated that in December 2016 his 5-year-old daughter in Sri Lanka became critically ill and he travelled to Sri Lanka on 18 December 2016 to be by her side. Upon returning to Australia from Sri Lanka in January 2017 the applicant was advised by Mr Simpson that he had decided to discontinue the visa nomination. The applicant was then approached in February 2017 by Mr Ranbir Singh who is willing to establish a new Yoga business and wanted the applicant to be engaged as Yoga Instructor. However Mr Singh was not able to proceed with a nomination because of a lack of funds to finance capital expenses and overheads. The applicant then had a further opportunity to be nominated as a full-time yoga teacher at Muragan Temple in Mays Hill in early March 2017 however the applicant claims that full-time employees have to be approved by the annual general meeting which was held in August each year. The applicant stated that in May 2017 a business called Kriya Yoga Pty Ltd started processing a nomination application which they lodged with the Department on 9 June 2017. At the review hearing on 2 October 2018 the Tribunal was advised by the applicant that the application made by Kriya Yoga had been refused by the Department of Immigration and that a merits review application had been lodged with the Tribunal on 30 August 2018.

7. At the hearing, the Tribunal explained to the applicant that the purpose of the 457 visa is for him to work on a temporary basis (usually for 4 years) for an approved sponsor in an approved occupation and that since ceasing employment with Summer Healing Yoga Pty Ltd in October 2016, just after the grant of his 457 visa, he has not been able to secure another nomination. In response, the applicant stated that he had travelled to Australia as a yoga teacher in 2014. This was the first time that the applicant had been given an opportunity to live overseas. The applicant stated that if the cancellation was not set aside it would preclude his ability to apply for visas to travel to other countries to work as a yoga teacher. The Tribunal noted that the purpose of the Temporary Skilled Migration program was to fill skills shortages as noted on the skilled occupation list and that if he found it difficult to secure an approved nomination then this meant he was not able to fulfil the purpose of the 457 visa and that this weighed strongly in favour of cancelling the visa.

8. The Tribunal also noted that the applicant’s 457 visa had been granted until 2020 and that given the length of time still to run on that visa it would be difficult to set the cancellation aside without an approved nomination as the conditions attached to the 457 visa, and the protections for temporary workers in Australia, requires there to be an approved sponsor for whom the applicant can work in accordance with approved terms and conditions of employment, which would need to be satisfied as part of the nomination approval.

9. As has been noted the applicant provided evidence of a nomination application which had been lodged by Kriya Yoga Pty Ltd on 9 June 2017.  The Tribunal noted that evidence provided at the review hearing indicated that this nomination application had been refused by the Department and that an application for merits review had been lodged with the Tribunal on 30 August 2018.

10. The Tribunal has had regard to the evidence and submissions made by the applicant. The Tribunal considers that the purpose for which the applicant was granted his most recent 457 visa was to work in the occupation of Fitness Instructor for Summer Healing Yoga Pty Ltd, that purpose ended on 21 October 2016 when the applicant ceased working for that company. The Tribunal acknowledges that the applicant has made efforts to find another sponsor.  However, it has been almost 2 years since the applicant ceased working for his approved sponsor and to date the applicant has not been able to secure another approved nomination under the 457 visa programme.

11. The Tribunal acknowledges that another nomination in respect of the applicant by Kriya Yoga Pty Ltd was recently refused by the Department and that a merits review application was lodged with this Tribunal on 30 August 2018.  It is not known when that review application will be decided by the Tribunal. The Tribunal notes that it is required to conduct reviews in a fair and efficient manner. The Tribunal is satisfied that the applicant has had a fair opportunity to secure another nomination and, in the circumstances, does not consider it appropriate to delay making its decision until the outcome of the merits review application by Kriya Yoga Pty Ltd. Furthermore, the Tribunal notes that it is not necessary for the applicant to be the holder of a 457 visa or to remain in Australia for the nomination to be assessed and, if the nomination is ultimately approved, it is open for the applicant to apply for an associated visa from offshore.

12. Having regard to the purpose of the 457 visa, the Tribunal considers that the above circumstances, particularly the length of time that has passed since the applicant worked for his approved sponsor and his inability to secure another approved nomination since that time, weigh in favour of cancelling the 457 visa. 

13. The Tribunal has considered the applicant’s compliance with visa conditions and is satisfied that other than condition 8107(3)(b) the applicant has complied with visa conditions. The Tribunal is also satisfied on the evidence before it that the applicant has been cooperative with the Department. 

14. The Tribunal has also considered the circumstances in which the ground for cancellation arose. In this case, the ground for cancellation arose 90 days consecutive after the applicant ceased employment with the sponsor as he was unable to secure another nomination within the 90 day period. The applicant claimed that he made efforts to obtain another nomination from an approved sponsor, which the Tribunal accepts.  The Tribunal considers that the applicant did make efforts to secure another nomination soon after he ceased employment with the sponsor, and while this weighs in favour of the applicant, it is outweighed by the fact that that the applicant has not been able to secure another nomination despite having tried to do so for almost 24 months.

15. The Tribunal has also considered the hardship that may be experienced if the visa is cancelled. At the hearing the applicant stated that if the visa is cancelled he will have to return to Sri Lanka and that it will be difficult for him to re-establish his career and will take at least 1 to 2 years to establish a yoga centre. The Tribunal also notes that the applicant provided evidence that on 3 return trips to Sri Lanka from Australia he was able to engage in work in Sri Lanka training yoga instructors, that this work was well paid and this indicates that the applicant is both skilful and industrious and that this will assist him in re-establishing himself in Sri Lanka. The Tribunal also notes the evidence of the applicant that as a result of a significant period of being unemployed in Australia he is indebted to a number of people. Once again the Tribunal believes that the applicant’s skill set and age will enable him to repay any debts in due course.

16. The Tribunal acknowledges and accepts that the applicant may experience some hardship if the visa is cancelled. The Tribunal accepts that the applicant may experience financial hardship, however the Tribunal notes that the applicant according to his evidence has been unemployed in Australia since October 2016 a period of almost 2 years now and the applicant has also provided evidence that it will take him 1 to 2 years to re-establish himself in Sri Lanka. The Tribunal as noted believes that the applicant has now developed a good command of English as a result of the time that he is spent in Australia, he has undertaken studies in business in Australia and that the experience and skills that he is obtained in Australia will assist him in re-establishing himself upon his return to Sri Lanka. These factors, in the Tribunal’s view, would advantage the applicant in his home country. So while the Tribunal acknowledges the hardship that the applicant may initially experience upon return to his home country, it considers that he will be able to overcome that hardship and re-establish himself in his home country.

17. The Tribunal has also had regard to the mandatory legal consequences of cancellation. The applicant currently holds a Bridging E visa and will only be subject to detention if he does not continue to hold visas to remain lawfully in Australia or refuse to depart voluntarily. The applicant will not have to immediately depart Australia if the visa is cancelled and can apply for further Bridging E visas. If the visa is cancelled the applicant will be affected by s.48 of the Act and will have limited options for applying for substantive visas onshore without the intervention of the Minister.

18. In relation to consideration regarding international obligations, there is no evidence provided to the Department or before the Tribunal, and the applicant has not claimed, that any international obligations would be breached as a result of the cancellation.  The applicant did advise at review hearing that he was aware that he could lodge an asylum application in Australia but had not done so since arriving in Australia in 2014.  The evidence also indicates that the applicant since travelling to Australia in 2014 has returned to Sri Lanka on 3 occasions and there is no evidence that the applicant has had any problems entering and exiting Sri Lanka on those occasions which is suggestive of the fact that he does not have a well-founded fear of persecution for a Convention based reason.

19. The Tribunal has considered and weighed up all of the relevant circumstances in this case. The Tribunal acknowledges that the applicant has made considerable efforts to secure a nomination with an approved sponsor. The Tribunal also acknowledges that the applicant may experience hardship, including financial and emotional hardship, if the visa is cancelled. The Tribunal also accepts that the applicant has generally complied with visa conditions and has been cooperative with the Department. While these circumstances weigh in favour of the applicant, the Tribunal gives more weight to the purpose of the 457 visa and the fact that the applicant has been unable to secure another nomination since ceasing work with the sponsor close to 24 months ago. As indicated above, the applicant can, should he wish to do so, make an application offshore for a Subclass 482 visa should a nomination in relation to him be approved in future.

20. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    John Cipolla
    Senior Member