Ruminder Kaur (Migration)

[2021] AATA 1176

Ruminder Kaur (Migration) [2021] AATA 1176 (26 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Ruminder Kaur

Mr Khushwinder Singh
Master Jai Singh

CASE NUMBER:  1930732

HOME AFFAIRS REFERENCE(S):          BCC2019/1965813

MEMBER:L. Hawas

DATE:26 January 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the first applicant’s Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa.

The Tribunal does not have any jurisdiction with respect to the second and third applicants.

Statement made on 26 January 2021 at 3:42pm

CATCHWORDS
MIGRATION– cancellation– 457 (Temporary Work (Skilled))– breached condition 8107– applicant ceased employment for more than 90 consecutive days – no longer employed by sponsor –no compelling need to remain in Australia –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 140, 348
Migration Regulations 1994

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

Introduction

1. The first applicant (hereinafter referred to as the applicant) is a 41 year old woman from India.[1] She came to Australia in 2008 on a student visa.[2] Presently, she lives in Australia with her husband and 15 year old son, being the second and third applicants respectively. On 26 July 2016, the Department of Immigration and Border Protection granted the applicant a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa for four years to 26 July 2020.[3] By written decision dated 24 October 2019, a delegate of the Minister for the Department of Home Affairs cancelled the applicant’s visa. By this application, the applicant seeks a review of that decision. The applicant gave the Tribunal a copy of the delegate’s decision at the time she applied for this review.

   [1] The applicant was born on 3 October 1979 See delegate’s decision dated 24 October 2019 at p. 1.

   [2] Applicant’s oral evidence at hearing on 29 September 2020.

   [3] Visa grant notice at annexure 1 of the applicant’s pre-hearing submissions to the Tribunal dated 23 September 2020.

2. The delegate cancelled the applicant’s visa under s.116(1)(b) of the Migration Act 1958 (Act) on the grounds that she did not comply with condition 8107(3)(b) of her visa. That condition provided that if the applicant ceased employment with her sponsoring employer the period during which the applicant ceases employment must not exceed 90 consecutive days. The delegate found that the applicant had ceased employment with her sponsoring employer since at least 24 October 2018[4] and that she ceased that employment for more than 90 consecutive days in breach of condition 8107(3)(b). After considering the matters relevant to the delegate’s discretion to cancel the applicant’s visa the delegate exercised his discretion in favour of cancelling the applicant’s visa. Consequently, the visas of the second and third applicants were cancelled under s.140(1) of the Act.

   [4] Delegate’s decision at p. 4. The delegate also found that the applicant confirmed that she ceased employment with her sponsoring employer in October 2018. That finding appeared to be based on the applicant stating in her letter to the department dated 10 September 2019, in response to the notice of intention to consider cancellation of her visa, where the applicant stated – “As outlined in your letter, you have requested that I provide compelling reasons regarding why I have failed to meet my visa conditions and why I ceased employment with my business sponsor, ATOP Property Services Pty Ltd, since October 2018. The primary reason for ceasing my employment………”

3. The applicants have now applied to this Tribunal for a review of that decision.

4. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision before the Tribunal is the decision cancelling the applicant’s visa. The visas of the second and third applicants were automatically cancelled as a consequence of the applicant’s visa cancellation. Accordingly, the visas of the second and third applicants were not cancelled by decision but by force of the operation of s.140(1) of the Act. The cancellation of those visas was self-executing on the cancellation of the 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 cancellation of the visas of the second and third applicant under s.140(1), the Tribunal has no jurisdiction with respect to them.

5. Accordingly, in this review, the Tribunal must decide whether the ground for cancelling the applicant’s visa is made out, and if so, whether the visa should be cancelled.  

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

Procedural matters

1. The applicant appeared before the Tribunal on 29 September 2020 to give evidence and present arguments. At the hearing, the Tribunal received oral evidence from the applicant and her husband Kushwinder Singh (the second applicant). The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicants were represented in relation to this review by their registered migration agent. The representative attended the hearing.

2. The hearing was held during the COVID-19 pandemic. The Tribunal exercised its discretion to hold the hearing by video conference (Microsoft Teams). The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick. The hearing of the matter would have been delayed if it was not to be conducted by video conference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments at the hearing.

3. On 23 September 2020 (before the hearing), the Tribunal received written submissions with attachments from the applicant’s representative (pre-hearing submissions). On 10 October 2020 (after the hearing), the Tribunal received further written submissions with attachments from the applicant’s representative (post-hearing submissions). The Tribunal has considered the applicant’s pre-hearing and post-hearing submissions and all the attachments to the submissions.

Is the ground to cancel the applicant’s visa made out?

1. The Minister or the Tribunal may cancel a visa under s.116(1)(b) of the Act if satisfied that the visa-holder has not complied with a condition of the visa.

2. Here, the applicant’s visa contained condition 8107(3)(b), which provided that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.[5]

   [5] Delegate’s decision p.2 and the department’s records on the Integrated Client Services Environment (ICSE).

3. The Tribunal has the following evidence before it relevant to whether the applicant has not complied with condition 8107(3)(b) and whether the ground to cancel the applicant’s visa under s. 116(1)(b) has been made out:

   (a)The applicant was granted her 457 visa on 26 July 2016. The term of the visa was four years. Had the delegate not cancelled the visa, the term of the visa would have expired on 26 July 2020.[6] Come the time of the visa cancellation, the standard business sponsor who had nominated the applicant for that visa was ATOP Property Services Pty Ltd (ATOP);[7]

   [6] Visa grant notice at annexure 1 of the applicant’s pre-hearing submissions.

   [7] Delegate’s decision at p. 3.

   (b)The predecessor to ATOP was Lenny & Khan Pty Ltd (Lenny & Khan). That company sponsored the applicant for her original 457 visa, which was granted for one year on 26 March 2015.[8] The applicant’s 457 visa the subject of this review was granted on 26 July 2016 also on the sponsorship of Lenny & Khan. That sponsorship was effectively transferred to ATOP on 9 August 2018;[9]

   [8] Visa grant notice at annexure 1 of the applicant’s pre-hearing submissions.

   [9] Paragraph 7 of the applicant’s pre-hearing submissions and annexure 12 to the submissions. Also see paragraphs 24 to 26 below.

   (c)The principal of Lenny & Khan and ATOP’s principal was a gentleman by the name of Lalit Giri (Giri). During the time for which the applicant worked for Lenny & Khan and ATOP, they operated hotel/motels including establishments in Casterton, Castlemaine, Jeparit, and Williamstown;[10] 

   [10] Applicant’s oral evidence at the hearing and Applicant’s pre-hearing submissions.

   (d)During her time with ATOP, the applicant worked as a cook in the restaurants at ATOP’s Casterton, Castlemaine, and Jeparit hotel establishments;[11]

   [11] Applicant’s oral evidence at the hearing.

   (e)The applicant’s son (the third applicant) suffers from Spina Bifida. During 2018, he was diagnosed with hydrocephalus, being a complication of Spina Bifida. From abut June 2018, the third applicant’s condition deteriorated and from that time the applicant increasingly took time away from work to take her son to medical appointment and generally care for him;[12]

   [12] Applicant’s letter to the department dated 10 September 2019 in response to the notice of intention to consider cancellation of her visa.

   (f)On 27 September 2018, the third applicant was admitted to the Royal Children’s Hospital to undergo surgery for the removal of plates previously inserted into one of his ankles.[13] Out of concern for her son, the applicant attended at the hospital to stay with her son during his surgery and during his recovery time between surgery and about mid October 2018;[14]

   [13] Applicant’s pre-hearing submissions. Letter from the applicant’s general practitioner dated 10 September 2019 at annexure 2 of the pre-hearing submissions. Letter from the Royal Children’s Hospital to the applicant dated 30 August 2018 at annexure 3 of the pre-hearing submissions.

   [14] Applicant’s oral evidence at the hearing and letters, medical certificates and parent/carer attendance certificates from the Royal Children’s hospital attached to the applicant’s pre-hearing submissions.

   (g)It was necessary for the applicant to attend at her son’s surgery and to his post-surgery care because her husband does not speak English. Her husband and her son rely on her for everything;[15]

   (h)During the fortnight or so the applicant stayed with her son during his surgery and recovery time she did not go to work;[16]

   (i)Before the third applicant underwent surgery, the applicant asked Giri for two weeks leave so she could be with her son during his surgery and necessary recovery time. Giri told the applicant she could take that leave. But while the applicant’s son was undergoing his surgery (during her approved leave), Giri called the applicant and asked her to return to work. Giri also asked the applicant to assist his wife to move to a new house. The applicant told Giri she could not return to work yet (and help his wife move to a new house) because she needed to look after her son. Giri abused the applicant and told her that he did not care about the welfare of her son and was only interested in his work;[17]

   (j)After the applicant’s son underwent surgery and had recovered sufficiently, the applicant called Giri and told him that she could now return to work. Giri told her to rest and look after her son. He said he would call her when he wanted her to return. After Giri did not call the applicant with a date on which she should return to work, the applicant called Giri repeatedly and asked him for a return date. On each occasion Giri “put her off”. Giri did not ever call the applicant and ask her to return to work, and he never gave her a return to work date. Eventually, the applicant gave up on calling Giri to seek a return date given his repeated ignorance of her requests to return to work. The applicant realised in February or March 2019 that she would not be returning to work for ATOP. She stopped calling Giri at around that time;[18]

   (k)The last day the applicant attended at work for ATOP was 25 September 2018, being the day she commenced her leave to care for her son. She did not subsequently work for ATOP or an entity associated with it;[19]

   (l)The department received written notification from ATOP that the applicant had ceased employment with it since at least 24 October 2018.[20] That notification was a letter dated 24 October 2018 from ATOP (signed by Giri) to the Department of Home Affairs, which stated that “we would like to withdraw the above nomination application”. In the letter, ATOP asked the department to process the request as soon as possible;[21]

   (m)The Department of Home Affairs sent the applicant a notice of intention to consider cancellation of her visa dated 3 September 2019. In the notice, the department stated that it had received written notification from ATOP that the applicant’s employment with the company had ceased since at least 24 October 2018. The department stated the applicant ceasing employment appeared to constitute a ground to cancel the applicant’s 457 visa under s. 116(1)(b) of the Act for beach of condition 8107(3)(b). The department asked the applicant to comment on that ground for cancellation;[22]

   (n)The applicant responded by letter dated 10 September 2019. In that letter, the applicant seemed to accept that she had ceased employment with ATOP in October 2018.[23] She stated that her son’s medical condition required her to take him to hospital and general practitioners regularly and that required her to take leave from work frequently. As a result, ATOP notified the department (that she had ceased work with it) without her knowledge;[24]

   (o)Giri mistreated the applicant during her time working for ATOP. He would abuse her and on one occasion threw hot tea on her. He threatened to have her kicked out of Australia if she did not do what he wanted;[25] and

   (p)The applicant accepted that she knew it was a condition of her visa that she could not cease employment with ATOP for more than 90 consecutive days. She also accepted there were grounds to cancel her visa because she did cease employment with ATOP for more than 90 consecutive days but the Tribunal should, in the appropriate exercise of its discretion, not cancel her visa.[26]

   [15] Applicant’s letter to the department dated 10 September 2019 in response to the notice of intention to consider cancellation of her visa.

   [16] Applicant’s oral evidence at the hearing. Note also that medical certificates the applicant submitted to the Tribunal (annexure 3 to the applicant’s pre-hearing submissions) provided that the applicant would need to attend hospital with her son or would be unfit for work between 26 September 2018 and 26 October 2018.

   [17] Applicant’s oral evidence at the hearing.

   [18] Applicant’s oral evidence at the hearing.

   [19] Applicant’s oral evidence at the hearing.

   [20] Delegate’s decision at p. 3.

   [21] Letter from ATOP to the Department of Home Affairs dated 24 October 2018 on the department’s file.

   [22] The notice of intention to consider cancellation dated 3 September 2019 is on the department’s file

   [23] See footnote 4 above.

   [24] The applicant’s written response dated 10 September 2019 to the notice of intention to consider cancellation is on the department’s file.

   [25] Applicant’s pre-hearing submissions and the applicant’s oral evidence at the hearing.

   [26] Applicant’s oral evidence at the hearing.

4. In this case, for the power to cancel the applicant’s visa to be enlivened under s. 116(1)(b) of the Act for breach of condition 8107(3)(b), she must have ceased employment with ATOP and not resumed employment within the following 90 consecutive days.

5. As set out in paragraph 12(k) above, at the hearing the applicant said that her last day at work with ATOP was on 25 September 2018. However, it does not necessarily follow that the applicant ceased employment with ATOP on that day. The effect of the applicant’s evidence was that by 25 September ATOP had approved a fortnight’s leave for the applicant to care for her son during his surgery and his subsequent recovery. Subsequently, the applicant took that leave. An employee taking approved leave is not an instance of ceasing employment. So, the applicant did not cease employment with ATOP on 25 September 2018.

6. After 25 September 2018, ATOP did not give the applicant any written or oral notice of terminating her employment. Also, the applicant did not resign or notify ATOP, whether in writing or orally, that she proposed to resign.

7. But it is plain that, come 24 October 2018, ATOP either considered the applicant to have ceased employment with it or that it wanted the applicant’s employment to cease with it as of that date. By its letter to the department dated 24 October 2018, ATOP stated that it wanted to withdraw the applicant’s nomination application and it asked the department to process the request. Although the words of ATOP’s letter do not refer to the applicant’s employment ceasing as at that date, the words of the letter are to that affect. 

8. On the applicant’s evidence, after her fortnight’s leave to care for her son had expired, her attempts to return to work were rebuffed by Giri and ATOP. Giri avoided giving the applicant a date for her return to work. Come February or March 2019, she had given up on tyring to return to work and accepted she would not be returning.

9. Accordingly, on the evidence before the Tribunal, it finds that the applicant ceased employment with ATOP sometime between mid October 2018, when her approved leave to care for son ended without her returning to work, and 24 October 2018, when ATOP notified the department that it wanted to withdraw the applicant’s nomination. On that analysis, the applicant’s employment with ATOP ceased by or on 24 October 2018. The applicant did not resume employment with ATOP (or any other employer) within 90 consecutive days following her employment ceasing. On those grounds, the Tribunal finds that the applicant breached condition 8107(3)(b) of her visa and that the ground to cancel her visa under s. 116(1)(b) of the Act has been made out.

10. If the Tribunal is wrong about the applicant having ceased employment with ATOP by or on 24 October 2018, on her own evidence, the applicant’s employment with ATOP ceased in February or March 2019. At that time, the applicant accepted she would not be returning to work for ATOP and she stopped trying to return. Accordingly, the applicant’s employment with ATOP ceased by February or March 2019 at the latest. Again, the applicant did not return to work for ATOP (or any other employer) for 90 consecutive days from say 31 March 2019. On that analysis, the applicant has still breached condition 8107(3)(b) of her visa and the ground to cancel her visa under s. 116(1)(b) of the Act has been made out.

11. By the findings in paragraphs 18 or 19 above, the Tribunal expressly does not find that ATOP terminated the applicant’s employment lawfully or that the way in which ATOP brought about an end to the applicant’s employment was lawful. It finds only that the applicant’s employment with ATOP had ceased by February or March 2019 at the latest. 

12. The Tribunal considers the applicant’s breach of condition 8107(3)(b) of her 457 visa to be serious. After ceasing work with ATOP by February or March 2019 at the latest, the applicant was not able to secure another application to sponsor her for a visa until 9 April 2020. On that date, Yasmin Shaik Pty Ltd (Yasmin Shaik) applied to sponsor the applicant for a subclass 482 visa.[27] The Tribunal returns to that matter below.       

[27] See paragraph 35 below.

Consideration of the discretion to cancel the applicant’s visa

1. Section 116(1)(b) of the Act does not require mandatory cancellation of the applicant’s visa. Having found that grounds for cancelling the visa under that section have been made out, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or the Migration Regulations (1994) (Regulations) that must be considered in the exercise of this discretion. In exercising its discretion, the Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ as well as all the other matters in considers relevant.

The purpose of the applicant’s travel to and stay in Australia, and whether the applicant has a compelling need to remain in Australia

1. During the hearing, the applicant said that:

   (a)She came to Australia on a student visa in 2008;

   (b)Between 2008 and 2013:

   (i)She obtained a certificate III in Commercial Cookery from Meridian College in Melbourne, and then a Diploma of Hospitality Management from the same school;

   (ii)After completing her studies at Meridian College, she obtained a Certificate IV in Commercial Cookery and a Diploma of business from the Victorian Institute of Technology in Melbourne;

   (c)While studying, she worked at a café in Clayton in Melbourne as a cook and at a restaurant in Daylesford also as a cook;

   (d)After completing her studies in Australia in 2013, she returned to India temporarily to care for her parents in law who had been involved in an accident;

   (e)She returned to Australia in 2015 on a 457 visa granted on the sponsorship of Lenny & Khan; and

   (f)From that time, she worked for Lenny & Khan, then ATOP, as a cook at their various restaurants around Victoria as set out in paragraphs 12(c) and (d) above.

2. As set out in paragraphs 12(a) and (b) above, the 457 visa on upon which the applicant returned to Australia in 2015 was granted on 26 March 2015. The visa term was one year until 26 March 2016. On 26 July 2016, the department granted the applicant a further 457 visa for four years, from 26 July 2016 to 26 July 2020, again on the sponsorship of Lenny & Khan.

3. In the applicant’s pre-hearing submissions, her representative stated that after working for Lenny & Khan for three years, the applicant applied for a visa under the Employer Nomination Scheme under the temporary residence transition stream (subclass 186 visa). But on advice from her previous migration agent, the applicant withdraw that application for fear it would be refused given the recent refusals of other similar applications made by Lenny & Khan.

4. On 9 August 2018, by which time Giri had ceased conducting business through Lenny & Khan and commenced conducting business through ATOP, the department approved a nomination application by ATOP to sponsor the applicant for a subclass 482 visa.[28] At the hearing, the applicant said that Lenny & Khan changed its name to ATOP in August 2018. The applicant said she understood that at that time the department effectively transferred her 457 visa granted on the sponsorship of Lenny & Khan to one granted on the sponsorship of ATOP. The applicant was, in effect, correct. ATOP’s approval to sponsor the applicant for a 482 visa on 9 August 2018 (which visas had by then replaced 457 visas) had the effect of transferring the applicant’s existing 457 visa (obtained on the sponsorship of Lenny & Khan) to one that subsisted under the sponsorship of ATOP.[29]

   [28] Department approval of nomination letter dated 9 August 2018 at annexure 12 to the applicant’s pre-hearing submissions.

   [29] Records in the department’s ICSE system.

5. At the hearing, the applicant said that:

   (a)After she accepted in February or March 2019 that she would not be returning to work for ATOP, she began looking for a new sponsoring employer;

   (b)In about late October 2019, she responded to an advertisement on Gumtree for a cook at an Indian restaurant in Waurn Ponds, which is a suburb of Geelong. Ultimately, she attended at the restaurant and spoke to the owner, who was a gentleman by the name of “Shujaat”;

   (c)Subsequently, the applicant completed a trial at the restaurant with Shujaat for two days, after which Shujaat offered her a job as a cook. Shujaat told the applicant that he was prepared to sponsor her for a visa. He told the applicant to consult his lawyer, a gentleman by the name of “Venkata”, with a view to Venkata preparing the sponsorship documents. Shujaat said he would provide Venkata with whatever her required to complete the sponsorship;

   (d)The applicant then visited Venkata and asked him to prepare the sponsorship documents to allow Shujaat to sponsor her for a visa. Venkata told her to send him an email setting out her instructions so he could forward the email to the department; and

   (e)The applicant sent Venkata an email as he had requested but Venkata failed to forward the email to the department. When the applicant questioned Venkata about the email he said that he did not send her email to the department but it would not have made any difference because her visa had already been cancelled.

6. As evidence of Shujaat’s offer of new employment and of her instructions to Venkata, the applicant gave the Tribunal a copy of an email she sent to her current migration agent (and representative in this review) on 10 September 2020, which forwarded to the agent an email the applicant had apparently sent to “Venkata Tenari” (Tenari) on 23 October 2019 (being the day before the applicant’s visa was cancelled).

7. The applicant’s covering email to her current migration agent on 10 September 2020 provided:

   “Hello Madam,

   Below is an email I sent to my prior lawyer to send to the immigration as he told me to write a letter stating that I have found a new employer. Yet, he never sent the email to the immigration and in the result my Visa got cancelled the next day.

   This can act as proof as I sent him this mail and yet my visa still got cancelled.”

8. The email the applicant had apparently sent to Tenari on 23 October 2019 provided:

   Hello Sir,

   Hope you are doing well. My name is Ruminder Kaur. I find a new employer. The name of the restaurant is Deccan Indian Kitchen (Restaurant). The name of the owner is Shujaat. His mobile no is [withheld by Tribunal]. The email id (sic) of the employer is [withheld by Tribunal]. Please can you ready my paper work and send to me. I already talk with new employer. If you have any queries please contact me. Thanks.

9. By the time of the applicant’s email to Tenari (23 October 2019), the department had sent the applicant its notice of intention to consider cancellation of the applicant’s visa dated 3 September 2019, and the applicant had responded by way of letter to the department dated 10 September 2019.

10. During the hearing, the applicant stated that her search for a new employer to sponsor her after she ceased employment with ATOP was hampered because she was stressed at the time. In the pre-hearing submissions, the applicant’s representative stated that the applicant’s search for a new sponsoring employer was hampered by her son’s need for ongoing care after his surgery. Further, the applicant’s husband (the second applicant) was assaulted and wounded by four men on 25 June 2019 while on his way home from a bus stop. The incident was the subject of a police report, containing a statement by the second applicant to the police, which the applicant submitted to the Tribunal. The assault left the second applicant physically injured and psychologically traumatised and he is being treated by a psychologist to help him cope with the effect of the assault.[30] In the pre-hearing submissions, the applicant’s representative stated that that the need to give ongoing care to her son as well as the need to support her husband recover from the effect of the assault on him, coupled with the loss of her employment with ATOP, in turn affected the applicant’s mindset and hampered her ability to find a new employer.

    [30] Letters from the second applicant’s treating psychologist dated 20 September 2020 and 4 October 2020.

11. The applicant submitted to the Tribunal some evidence of her mental state during September 2019. A letter from her treating general practitioner dated 10 September 2019 provides that the applicant has been suffering from migraines for the past two years as well as anxiety and depression. The doctor attributes the applicant’s health problems to stress caused by her son’s recent operation and his broader health problems as well as the assault on her husband. The doctor stated that the applicant and her husband have been attending psychological counselling sessions for the past few weeks.[31] A further letter from the applicant’s treating general practitioner dated 14 September 2020 set out the difficulties the applicant encountered working for Lenny & Khan and then ATOP. The doctor concludes that this caused the applicant to suffer stress and eventually leave her employment with ATOP.[32]

    [31] Letter from the applicant’s general practitioner dated 10 September 2019 at annexure 2 of the pre-hearing submissions.

    [32] Letter from the applicant’s general practitioner dated 10 September 2019 at annexure 2 of the pre-hearing submissions.

12. In her written response dated 10 September 2019 to the department’s notice of intention to consider cancellation of her visa, the applicant also stated that her son’s health problems and the attack on her husband (and the effect that had on him) [33] left them heavily reliant on her. That caused her to suffer stress and hampered her search for a new sponsoring employer. The applicant asked for four weeks to find a new sponsoring employer. The delegate did not cancel the applicant’s visa until 24 October 2019, being more than four weeks from the applicant’s 10 September letter. Come 24 October 2019, the applicant was yet to secure a new nomination.[34]

    [33] In his evidence to the Tribunal, the applicant husband (the second respondent) also said that the assault on him left him mentally upset and disturbed.

    [34] The delegate noted that at p. 6 of his decision.

13. The applicant’s search for a new sponsoring employer has now paid off. On 9 April 2020, Yasmin Shaik applied to sponsor the applicant for a subclass 482 visa. As at the date of this decision, the department is yet to decide that application.[35] In her post hearing submissions, the applicant’s representative stated that Yasmin Shaik had applied to sponsor the applicant in the position of cook. The principal of Yasmin Shaik is Shujaat Ah Mar.[36] The Tribunal infers that Mr Ah Mar is “Shujaat” to which the applicant referred during the hearing as set out in paragraphs 27 to 30 above.

    [35] Letter from the Department of Home Affairs dated 9 April 2020 confirming that Yasmin Shaik Pty Ltd had applied to sponsor the applicant for a subclass 482 visa. Yasmin Shaik was approved as a standard business sponsor on 23 March 2020 as confirmed by the letter from the department of home affairs dated 23 March 2020. Those letters are at annexures 9 and 10 respectively of the pre-hearing submissions.

    [36] Letter from Shujaat Ah Mar to “Whom it may concern” at annexure 1 of the applicant’s post hearing submissions. Mr Ah Mar signed the letter as director of Yasmin Shaik.

14. At the hearing, the applicant stated that she wanted her long term future and that of her family to be in Australia. She wanted to remain in Australia for several reasons. First, she wants to progress her career as a cook or chef in Australia. Second, she wants her son’s future (both for the purpose of his medical treatment and his career) to be in Australia rather than in India. In her response dated 10 September 2019 to the notice of intention to consider cancellation of her visa, the applicant stated that leaving Australia would visit hardship on her son as he still required ongoing care for his medical conditions. The applicant preferred to stay in Australia so that her son’s medical treatment was not interrupted.

15. A 457 visa is a temporary visa that provides for skilled people (and their immediate families) to come to Australia to work for an approved employer for up to four years. The visa operated on the premise that it would not undermine job opportunities for Australians. The 457 scheme allowed visa holders to fill roles where there was a genuine skills shortage or, in effect, where a suitably qualified Australian worker is not available.[37]

    [37] Larsen G; The subclass 457 Visa: a quick guide; Parliament of Australia at >

    The applicant’s stay in Australia on her 457 visa was for the purpose of working for Lenny & Khan and then ATOP as a cook to fill a need those employers had for a cook, which they could not fill with a suitably qualified Australian worker. When the applicant ceased her employment with ATOP by or on 24 October 2018 (or February or March 2019 at the latest), given condition 8107(3)(b) of her visa, she effectively had 90 days to locate another sponsoring employer in order to remain within the conditions of her visa. The applicant was not able to locate another sponsoring employer (or secure a new application to nominate her for a visa) within 90 days, after which she fell into breach of condition 8107(3)(b). From that point, the applicant’s continued stay in Australia on her 457 was in tension with the purpose of that visa.

16. The applicant was not able to secure a new sponsorship application until 9 April 2020 when Yasmin Shaik applied to sponsor her for a 482 visa. That is well after the applicant ceased employment with ATOP either on or by 24 October 2018 or February or March 2019. Further, by the time Yasmin Shaik applied to sponsor the applicant, the applicant’s visa had been cancelled and the applicant had applied to this Tribunal for a review. Although condition 8107(3)(b) contemplates that the applicant will have some time (90 days) to secure a new application to nominate her for a visa after her employment with ATOP ceased, it did not contemplate an extended search until 9 April 2020, being the date Yasmin Shaik applied to nominate her. Remaining in Australia for so long to search for a new sponsoring employer was not consistent with the purpose of the applicant’s 457 visa.

17. Accordingly, the Tribunal weighs the following matters heavily in favour of exercising its discretion to cancel the applicant’s visa:

    (a)The seriousness of the applicant’s breach of condition 8107(3)(b) of her visa – the applicant ceased employment with ATOP in February or March 2019 at the latest and she was not able to secure a new application to nominate her for a visa until 9 April 2020; and

    (b)The applicant’s stay in Australia for so long to search for a new sponsoring employer, which was not consistent with the purpose of the 457 visa.

18. The Tribunal has considered the applicant’s claim that “Shujaat” was prepared to sponsor the applicant in October 2019. On the evidence, the Tribunal accepts that the applicant was in contact with Shujaat (and Yasmin Shaik) in October 2019. It has weighed that claim against exercising its discretion to cancel the applicant’s visa but it gives that claim limited weight for the following reasons. First, October 2019 is still well after the applicant ceased employment with ATOP. Second, although the Tribunal accepts that Tenari ignored (or did not act on) the applicant’s request to prepare the paperwork for Shujaat to sponsor her, the sponsorship application was Shujaat’s to make and, strictly, not the applicant’s to arrange. Shujaat (and Yasmin Shaik) did not apply to sponsor the applicant until 9 April 2020. Third, by the time the applicant notified Tenari by email on 23 October 2019 that Shujaat would sponsor her and she asked Tenari to prepare the paperwork, the department had sent her the notice of intention to consider cancellation of her visa (dated 3 September 2019) and the applicant had responded to it (10 September 2019). There is no written evidence before the Tribunal that the applicant promptly or actively sought a new sponsoring employer before October 2019. Accordingly, the Tribunal infers that the contact from the department prompted the applicant to intensify any existing search for a new sponsoring employer resulting in the contact with Shujaat.

19. The applicant claims that she began searching for a new sponsoring employer after she accepted in February or March 2019 that she would not be returning to work at ATOP. It has weighed that claim against exercising its discretion to cancel the applicant’s visa but it gives that claim limited weight. As stated in the preceding paragraph, there is a lack of written evidence before the Tribunal that the applicant promptly or actively searched for a new sponsoring employer before the contact with Shujaat. When the applicant was prompted by the contact with the department in September 2019 she located Shujaat relatively quickly after that.  

20. The Tribunal has considered the applicant’s claim that her search for a new sponsoring employer was hampered by the demands placed on her by her son’s health problems and the ongoing care she was required to give her son, as well as the assault on her husband and the psychological effect that had on him (which is ongoing). On the evidence, the Tribunal accepts that those matters, coupled with the loss of the applicant’s employment with ATOP, caused her to suffer stress, anxiety, and depression, which hampered her search for a new sponsoring employer. The Tribunal accepts that those matters go some way to explaining why it took the applicant until October 2019 to locate Shujaat and March or 9 April 2020 to secure the nomination by Yasmin Shaik. The Tribunal has weighed that against exercising its discretion to cancel the applicant’s visa.

21. The Tribunal weighs Yasmin Shaik’s application to sponsor the applicant for a 482 visa against exercising its discretion to cancel her 457 visa. The 482 visa has a similar purpose to the 457 visa. Like a 457 visa, a 482 visa enables employers to meet labour shortages by bringing in skilled workers where employers cannot source appropriately skilled Australian workers.[38] That the applicant proposes to remain in Australia to work for Yasmin Shaik on a 482 visa is consistent with the purpose of her 457 visa. But the weight the Tribunal places on that in the applicant’s favour is limited by the length of time it took the applicant to secure the nomination application by Yasmin Shaik. During the time the applicant was in Australia in breach of condition 8107(3)(b), she was here for purposes not consistent with her 457 visa (such as search for a new employer).

    [38] >

    The Tribunal has weighed the applicant’s claim that she wants to remain in Australia for her son’s future (both for better medical care and for his career) against exercising its discretion to cancel the applicant’s visa. But the weight the Tribunal places on that matter is limited. Although the Tribunal acknowledges that a 457 visa is often a pathway to permanent residency in Australia (and all the benefits that affords including health care and economic opportunity), hence the weight the Tribunal has given this claim (albeit limited), the 457 visa is a temporary visa that does not come with any guarantee or express representation of permanent residency. Strictly, the applicant’s preference for her son to remain in Australia for the purpose of improved health care and economic opportunity is not consistent with the purpose of her 457 visa.

22. Similarly, the Tribunal also weighs the second applicant’s preference to remain in Australia for the purpose of completing his treatment for the physical and psychological injuries he suffered by reason of the assault on him against exercising its discretion to cancel the applicant’s visa but the weight is limited. Again, a stay in Australia for that purpose is not strictly consistent with the purpose of the applicant’s 457 visa. Further, the Tribunal also gives some weight in the applicant’s favour to her claim that she wants to remain in Australia to complete her treatment with her psychologist for the stress, anxiety, and depression she is suffering but the weight is limited. Again, a stay in Australia for that purpose is strictly inconsistent with the purpose of her 457 visa.

23. Under this purpose-of-the-457-visa head, the Tribunal has weighed the matters set out in paragraph 40 above heavily in favour of exercising its discretion to cancel the applicant’s 457 visa. The Tribunal has weighed the matters set out in paragraphs 41 to 46 above against exercising its discretion to cancel the applicant’s visa. The Tribunal considers those matters to mitigate the weight the Tribunal places on the matters in paragraph 40 above but do not outweigh them entirely.

1. Otherwise, the Tribunal does not consider the applicant to have a compelling need to remain in Australia.

The extent of compliance with visa conditions

1. Other than the applicant’s breach of condition 8202(3)(b) of her visa in issue, she has not breached any other condition of her visa. The Tribunal has weighed that against exercising its discretion to cancel the applicant’s visa.

Degree of hardship that may be caused (financial, psychological, emotional, or other hardship) to the visa holder and any family members

1. If the applicant’s 457 visa is cancelled, subject to any application she might make to extend her stay in Australia (and that of her family), she will not have the authority to remain and she will have to return to India.

2. The applicant claims that, as well as her family, she will suffer several instances of hardship if her visa is cancelled and she is required to return to India. They can be summarised as follows:

   (a)The applicant has lived in Australia with her family since 2008. They have become accustomed to life in Australia and are happy here;[39]

   (b)The applicant is currently working as a cook at a restaurant in Altona, a suburb of Melbourne. She hopes to work for Yasmin Shaik once its application to nominate her for a visa has been approved. The second applicant stopped work in June 2019 after he was assaulted. He will be returning to work shortly at a grocery store in Hoppers Crossing, also a suburb in Melbourne;[40]

   (c)The applicant will encounter more limited employment and economic opportunities in India as will her husband and her son. Her family does not have any business in India or a source of income there;[41]

   (d)The applicant’s family will have difficulty re-adjusting to life in India. The third applicant has integrated into Australian society. He is at school and will be in year 10 in 2021. He will not be able to adjust easily to life in India;[42]

   (e)Her son’s health care will be interrupted (or less effective) in India. Her husband’s treatment in Australia for the psychological injuries he suffered by reason of the assault on him will be interrupted. Further, the counselling sessions she is attending in Australia to deal with her stress, anxiety, and depression will be interrupted;[43]

   (f)The second applicant needs to remain in Australia for the legal proceedings related to the assault on him what are “currently pending in the courts”;[44] and

   (g)The applicant’s mother and two siblings live in India. She has a brother in law and his wife (as well as their children) in Australia. Otherwise, she does not have family in Australia.[45]

   [39] Applicant’s oral evidence at the hearing.

   [40] Applicant’s oral evidence at the hearing. Note, the applicant is currently working lawfully. Her bridging visa E comes with work rights.

   [41] Oral evidence of the applicant and second applicant at the hearing.

   [42] Applicant’s oral evidence at the hearing.

   [43] Applicant’s pre-hearing submissions.

   [44] Paragraph 15 of the applicant’s post hearing submissions. Other than referring to the “case currently pending before the courts”, the applicant has not explained clearly, or submitted direct evidence of, the substance of the case (whether it is the prosecution of the accused people, a victims of crime case, or something else), or the progress of the relevant case(s). The letter from the treating psychologist of the second applicant dated 4 October 2020 at annexure 4 of the post hearing submission refers to a VOCAT (Victims of Crime Assistance Tribunal) claim.

   [45] Applicant’s oral evidence at the hearing.

3. The Tribunal accepts that the applicant and her family will suffer all the claimed instances of hardship if the applicant’s visa is cancelled and the family must return to India. The Tribunal accepts that the family will encounter some hardship readjusting to life in India after 12 years in Australia. The applicant and her husband would have established a network of friends in Australia and other ties to the country in that time. The Tribunal also accepts that the applicant and her husband leaving their current jobs in Australia and returning to India will visit some economic hardship on them because they might not be able to find jobs quickly in India, and even if they do, the jobs might not be as well remunerated. That is compounded by the current COVID-19 pandemic. That could interfere with their search for work in India. The Tribunal accepts that, in the longer term, the family will have less economic opportunities in India than they will in Australia. The Tribunal accepts that the applicant’s son will receive better health care in Australia and his care will be impacted if he must return to India.

4. The Tribunal notes the letters from the treating psychologist for the second applicant dated 20 September 2020[46] and 4 October 2020[47] where the psychologist sets out her opinion on the impact on the second applicant and his treatment if he is required to return to India. The Tribunal also notes that the second applicant would prefer to remain in Australia to pursue any VOCAT claim he might have, and that would be impeded if he had to return to India. The Tribunal also notes that the applicant is also undergoing counselling sessions to treat her anxiety and depression. Of course, she would prefer to complete her treatment in Australia. The Tribunal weighs all the claimed instances of hardship against exercising its discretion to cancel the applicant’s visa.

   [46] At annexure 5 of the pre-hearing submissions.

   [47] At annexure 3 of the post-hearing submissions.

5. However, several matters mitigate against the weight the Tribunal places on the applicant’s hardship claims. First, although the Tribunal accepts that the healthcare of the family will be interrupted if they must return to India, the applicant does not claim that her family will be deprived completely of the necessary healthcare in India. There is no evidence before the Tribunal that would sustain any such claim. Second, remaining in Australia for the purpose of the applicant and her family undergoing medical treatment is inconsistent with the purpose of the applicant’s 457 visa. It is open to the applicant to apply for a medical treatment visa if her medical treatment needs of those of her family necessitate remaining in Australia. Third, the applicant is 41 years old. The second applicant is 40 years old.[48] The Tribunal considers that although having to re-adjust to life in India will entail some challenges for the applicant and her husband, their relatively young age will be in their favour when seeking to re-establish their lives in India. The applicant’s Australian qualifications can only assist her in such an endeavour when it comes to her career. In relation to the third applicant (the applicant’s son), he is 15 years old.[49] Although he will need also to adjust to life in India, which will be challenging, his young age will leave him time to adjust. The Third applicant suffers from Spina Bifida. The Tribunal notes that this could interfere with the third applicant’s ability to adjust to life in India, and it has weighed that matter in its decision.

   [48] According to the Tribunal’s records the second applicant was born on 22 June 1980.

   [49] According to the Tribunal’s records the third applicant was born on 28 July 2005, which makes him 15 years old.

6. On balance, the applicant’s hardship claims weigh against the Tribunal exercising its discretion to cancel the applicant’s visa, although their weight is reduced by the matters set out in the preceding paragraph.

Circumstances in the which the ground for cancellation arose. Were the circumstances beyond the applicant’s control?

1. The applicant claims that she ceased employment with ATOP in the circumstances set out paragraphs 12(e) to (k) above. The applicant also claims that ATOP was unsympathetic to her son’s plight, and the effect on her, and did not extend to her sufficiently flexible working arrangements to care for her son in breach of the National Employment Standards.[50] The applicant claims generally that Lenny & Khan and ATOP (through Giri) mistreated her during her time working for those companies.[51]

   [50] Applicant’s pre-hearing submissions.

   [51] Applicant’s pre-hearing submissions and evidence given by the applicant at the hearing.

2. The Tribunal accepts that the health problems suffered by the applicant’s son from about June 2018 placed increased demands on her time and attention, and that contributed to her ceasing employment with ATOP. Plainly, that was beyond her control. The Tribunal accepts the applicant’s claim that ATOP was unsympathetic to the plight of the applicant’s son and was rigid in the working arrangements it extended to the applicant to allow her to care for her son, and that contributed to the applicant ceasing work with ATOP. Again, that was beyond the applicant’s control. The Tribunal accepts that Giri and ATOP resisted the applicant’s attempts to return to work between about mid October 2018 (when her two weeks leave expired) and February or March 2019 (when the applicant accepted she would not be returning to work for ATOP and she ceased pursuing a return) by not returning her calls and otherwise not engaging with her attempts to return to work. That was also beyond the applicant’s control. The Tribunal accepts generally that the applicant did what she could to maintain her employment with ATOP but was ultimately unsuccessful. The Tribunal weighs those matters against exercising its discretion to cancel the applicant’s visa.

3. The Tribunal does not make any finding about whether ATOP breached the National Employment Standards. It is not necessary for the Tribunal to do so, and it does not have sufficient evidence before it to determine that issue.

4. The Tribunal has considered the applicant’s claim that Giri generally mistreated her during her employment with Lenny & Khan and ATOP. That tends to support the applicant’s claim that Giri ignored her attempts to return to work. In that sense, the claim weighs in the applicant’s favour but the weight is limited. Otherwise, the Tribunal considers such a broad claim to be of limited relevance to this review.

Past and present behaviour towards the Department   

1. There is no evidence before the Tribunal that the applicant has not cooperated with the Department. The Tribunal has weighed that against exercising its discretion to cancel the applicant’s visa.

Whether there would be consequential cancellations under s. 140

1. The visas of the second applicant and third applicant were cancelled consequentially because of the cancellation of the applicant’s visa. There is no evidence that the cancellation of the applicant’s visa would result in the separation of the applicant from the second or third applicant or the breakup of the family. Accordingly, this consideration is neutral.

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

1. The applicant is currently on a bridging visa E (class WE subclass 050) pending the outcome of this review. The applicant was granted that visa on 20 December 2019.[52] That bridging visa will cease given that the Tribunal has decided to affirm the delegate’s cancellation decision. In the absence of the Minister granting the applicant another visa, she will now not have authority to remain in Australia with her family. If that is the case, the applicant and her family will have the opportunity to depart Australia. Whilst her continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision. The Tribunal has taken those matters into account.

   [52] Departments records in ICSE.

2. Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s. 116 of the Act, may apply for certain prescribed classes of visas but not others in Australia. Regulation 2.12 of the Regulations prescribes the classes of visas. Subclass 482 visas are not prescribed. Consequently, this limits what visa applications the applicant can make whilst onshore. The Tribunal has taken that potential limitation on the applicant’s future visa applications actions into account and weighed that against exercising its discretion to cancel the applicant’s visa.

3. The Tribunal agrees with the delegate’s finding that the cancellation of the applicant’s visa will not attract the application of Public Interest Criteria 4013 (PIC 4013).[53] The visa cancellation will not attract the risk factors set out in in PIC 4013 necessary to invoke its application. Accordingly, subject to what is set out in the following paragraph and paragraphs 68 to 70 below, the applicant will be able to wait offshore for the outcome of Yasmin Shaik’s application to nominate her for a 482 visa (and her application for a 482 visa) has been determined. The Tribunal considers that to have a neutral impact on this review.

   [53] Delegate’s decision at p. 8.

4. The Tribunal has considered the potential impact of PIC 4014 on the applicant. That public interest criteria provides that a visa holder will be affected by a risk factor if the person left Australia as an unlawful non-citizen or the holder of certain bridging visas including a bridging visa E. The risk factor will not operate if the visa holder left Australia within 28 days after the substantive visa ceased to be in effect or a while on a bridging visa granted within 28 days after the substantive visa ceased to be in effect. If it applies, PIC 4014 will effectively bar the visa-holder from obtaining another visa unless the application is made more than three years after the person left Australia or there are compelling circumstances affecting Australia, or compassionate or compelling circumstances affecting the interests of an Australian resident, justifying the grant of a visa within three years after departure. As the applicant’s bridging visa E was granted on 20 December 2019,[54] and that is more than 28 days after the applicant’s 457 visa ceased to have effect on 24 October 2019 (when the delegate cancelled it), the applicant might be impacted by PIC 4014 when she leaves Australia. That could affect her application for a 482 visa on the sponsorship of Yasmin Shaik, or any other visa for which she applies from offshore. If PIC 4014 applies to the applicant at the time she leaves Australia, and if she subsequently wants to return to Australia on another visa within three years of leaving, the Tribunal has considered the possibility that the applicant will not be able to make out the necessary compelling or compassionate circumstances justifying a visa grant in order to obtain a visa in those circumstances. The Tribunal has weighed those matters in the applicant’s favour; it has weighed them against exercising its discretion to cancel the applicant’s 457 visa.

Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

[54] According to the department’s ICSE records to which the Tribunal has access.

1. The Tribunal has considered Australia’s international obligations. On the evidence before the Tribunal, they are not engaged by the cancellation of the applicant’s visa.

Other relevant matters

1. The applicant claims that her family (and her) will be at increased risk of contracting the COVID-19 virus if she is required to leave Australia and return to India.[55] Apart from making the claim and saying generally that COVID-19 transmission in India is widespread,[56] the applicant did not submit any evidence to the Tribunal to support that claim. The Tribunal is prepared to accept at face value that the applicant and her family will have an increased exposure to COVID-19 in a large third world country like India as compared to a smaller first world country like Australia. One would expect Australia to have more capacity to control the spread of a virus and treat the effects of infection. The Tribunal weighs that consideration against exercising its discretion to cancel the applicant’s visa but the weight is limited. COVID-19 is a worldwide pandemic that has affected all countries including Australia.

   [55] Applicant’s post hearing submissions and applicant’s oral evidence at the hearing.

   [56] The applicant said at the hearing that India was No. 1 in new virus infections at the time.

2. The Tribunal accepts that the travel restrictions currently imposed by countries around the world might impede the applicant and her family from returning to India. While the applicant and her family, as holders of temporary visas, are not prevented from leaving Australia[57] they might be subject to international border restrictions in India preventing their entry. That could delay their departure from Australia. In that event, it is open to the applicant and her family to apply for bridging visas allowing them to remain in Australia while arranging their return to India.[58] The Tribunal has taken all those matters into account.

   [57] >

   Australia’s international borders are closed to all arrivals unless the travellers come within one of the stated exemptions, such as Australian citizens or permanent residents returning home.[59] If the applicant returns to India, and while there Yasmin Shaik’s application to sponsor the applicant for a 482 visa is granted, it is possible that restrictions on entry into Australia will still be in place either preventing the applicant from returning or delaying her return. The applicant claims such a delay in returning to Australia will prejudice her and her family because it would keep them in India longer than necessary to suffer all the disadvantages that entails. The applicant says also that Yasmin Shaik has invested substantial money into its application to sponsor her for a visa and it has a real need for her skills. If the applicant cannot begin work with Yasmin Shaik quickly after its nomination has been approved, because she is in India and cannot return to Australia quickly, it will suffer prejudice as a result.[60]

   [59] Applicant’s post-hearing submissions and letter from Mr Ah Mar (Yasmin Shaik’s director) to “whom it may concern at annexure 1 of the post-hearing submissions.

3. The Tribunal has taken all of those matters into account and weighed them against exercising its discretion to cancel the applicant’s visa. But in the current environment, it is difficult to predict with certainty when the department will determine Yasmin Shaik’s application to sponsor the applicant, whether restrictions on entering Australia will be in effect at the time, and if so, what the substance of those restrictions will be. Given that uncertainty, the weight the Tribunal places on the matter is reduced.

Conclusion on discretion

1. The Tribunal has considered all the evidence before it carefully and all the matters in favour of exercising its discretion to cancel the applicant’s visa and all the matters that weigh against that outcome.

2. The Tribunal considers the applicant’s breach of condition 8107(3)(b) of her visa to be a substantial one. By February or March 2019 (if not earlier), she ceased employment with ATOP and was not able to secure another nomination within the following 90 consecutive days. She was not able to secure another nomination until 9 April 2020 on which date Yasmin Shaik applied to sponsor the applicant for a 482 visa. The Tribunal weighs the matters set out in paragraph 40 above heavily in favour of exercising its discretion to cancel the applicant’s visa.

1. On the evidence before it, the Tribunal has weighed several matters against exercising its discretion to cancel the applicant’s visa as set out above.

2. But the Tribunal considers that, on balance, the matters that weigh against the Tribunal exercising its discretion to cancel the applicant’s visa do not outweigh the matters in favour. The Tribunal concludes that the correct and preferable exercise of its discretion favours affirming the delegate’s decision to cancel the applicant’s 457 visa.

DECISION

1. The Tribunal affirms the decision to cancel the first applicant’s Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa.

2. The Tribunal does not have any jurisdiction with respect to the second and third applicants.

L. Hawas
Senior Member