Satija (Migration)

[2019] AATA 1486

Satija (Migration) [2019] AATA 1486 (29 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sunil Satija

CASE NUMBER:  1808529

HOME AFFAIRS REFERENCE(S):           BCC2016/3841119

MEMBER:Denise Connolly

DATE:29 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

Statement made on 29 January 2019 at 5:22pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Business (Long Stay)) – Federal Circuit Court remittal – breach of condition – company liquidated – attempted to meet conditions of visa – unable to secure employment – not satisfied applicant will suffer hardship – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140
Migration Regulations 1994 (Cth), Condition 8107, Public Interest Criterion (PIC) 4014

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 February 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 457 (Business (Long Stay)) 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 had not complied with condition 8107 of his visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant sought review and on 14 September 2017 the Tribunal (differently constituted) affirmed the delegate’s decision. The applicant appealed to the Federal Circuit Court of Australia and on 21 March 2018 the Court remitted the matter by consent with directions that the application be determined according to law. The Order notes that the first respondent, the Minister, conceded that in finding that the applicant would be able to apply for another Subclass 457 visa offshore the Tribunal failed to have regard to the applicant’s claim that he may not be able to apply for another visa for a period of three years if returned to India. The Order also notes that, accepting that if the applicant were to depart Australia, Public Interest Criterion 4014 may operate to prevent the applicant from lodging any substantive visa application for a three-year period following his departure from Australia, because he was not granted a Bridging visa until more than 28 days after the cancellation of his Subclass 457 visa.

4. The applicant appeared before the Tribunal on 10 and 14 January 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant was granted the Subclass 457 visa on 22 October 2014, having been sponsored by Tamarin Indian Tandoori Restaurant Pty Ltd (Tamarin Pty Ltd). (He confirmed at the hearing with the differently constituted Tribunal that this was to work in the occupation Events Manager).  Condition 8107 was attached to the visa. It requires, among other things, that if the visa holder ceases employment with the sponsor, the period during which the holder ceases employment must not exceed 90 consecutive days. 

2. The applicant was sent a notice of intention to consider cancellation on 19 December 2016, on the basis that he was in breach of condition 8107(3) because the information before the Department was that Tamarin Pty Ltd was court ordered to be liquidated due to its insolvency on 14 August 2015.

3. The applicant responded on 16 January 2017 stating that there were factors beyond his control and compelling and compassionate reasons why his visa should not be cancelled. He stated that he had been working for Tamarin Pty Ltd as a Restaurant Manager and only learned of the liquidation in late August 2015 when the restaurant changed its name and a new entity started running in its place. The applicant stated that he asked the new entity to hire and nominate him. They agreed and lodged a nomination application for the position of Events Manager on 29 September 2015. He advised that this application was refused on 30 November 2015 and a subsequent application by the same business was lodged on 2 March 2016, which was refused on 23 May 2016 because the Department was not satisfied that the intended position was a genuine position required for the operations of the business. The applicant stated that the company then decided not to sponsor him and he looked for another employer. He found an employer in August 2016 in regional NSW, Tweed Head’s Cafe and Restaurant Pty Ltd, who agreed to hire him as a Restaurant Manager and the business lodged a nomination application on 24 August 2016. However on 17 October 2016 the sponsorship application was not approved. A new nomination was lodged on 8 November 2016. He advised that a request for additional documents had been made and they were intending to provide that information.

4. The applicant stated that he had always tried to meet the conditions of his visa and that he would face hardship if the visa was cancelled. He referred to his wife’s visa also being cancelled, and that she was at the time 12 weeks’ pregnant with their first child. He indicated he would suffer financial difficulties and that a Bridging visa E would be disadvantageous to him as he would not be able to apply for another visa for three years.  He asked that the following factors be taken into account; he actively attempted to regularise his visa status, he is good at his job, and his wife is pregnant.

5. The applicant provided an ultrasound referral request for 10 January 2017 with the response and later submitted the result of the scan dated 13 January 2017 advising that it appeared there was a miscarriage.

6. The applicant attended a hearing with the previously constituted Tribunal on 13 September 2017. This Tribunal has listened to the recording of that hearing. The following information was recorded in the decision record of the previously constituted Tribunal. Having listened to the recording of the hearing, and taking into account other evidence provided by the applicant, the Tribunal is satisfied the following paragraphs of the decision record (specifically paragraphs 10 to 12) reflect the relevant information provided by the applicant at the hearing, along with comments of the previously constituted Tribunal member.

   In relation to the Subclass 457 visa he had held through his then employer, Tamarin Pty Ltd, the applicant told the Tribunal during the hearing that he had worked at Chilli & Pepper Restaurant as an Events Manager. When asked about the circumstances of the business closing, the applicant said he was informed by the owner in around August 2015 that he wanted to sell the business. The Tribunal put to the applicant that this was different to the business becoming insolvent, and the applicant thought perhaps the owner was trying to hide something from him but that he understood that they had to pay a lot of money to the ATO. The Tribunal notes that in his written response to the NOICC, he had said that he was a Restaurant Manager there and not an Events Manager. When asked about this, the applicant said it must have been a typographical error in his written response but that he was the Events Manager. In respect of the attempts made to secure a new nomination, he told the Tribunal that he had been approached by the new owner, operating from the same venue, and they had lodged nominations for him as an Events Manager but these were refused by the department on two occasions. He then tried to find a new employer located in a rural area of NSW, Tweedheads Café. They applied for the nomination in October or November 2016 and they did not hear anything for a long time but then it was eventually refused. The first application lodged by Tweedheads Café was withdrawn as they could not provide the necessary documents and then his lawyers lodged another application. The applicant was not clear as to when the nomination was refused, he thought perhaps sometime in April 2017. On the day of the hearing, evidence was provided of another nomination in respect of the applicant lodged by R & A Restaurant Pty Ltd two days prior. The applicant said it was to work as a Restaurant Manager for Larousse French Restaurant in Brighton-Le-Sands. He has never worked as a Restaurant Manager but feels that there is not much difference between that occupation and Events Manager.

   The Tribunal was asked to await the outcome of the nomination application before making its decision. The Tribunal asked if there was any reason why the applicant could not go offshore to await the outcome. The applicant said that his family, and in particular his mother, would be very stressed out because they believe that his future will be ruined if he has to go back. The Tribunal put to him that the 457 visa was a temporary visa only and the applicant said that he hadn’t told them that it is a temporary visa. The applicant also referred to his wife being mentally stressed out. He believes that she had a miscarriage because she was stressed after he received a notice of intention to cancel his visa. The Tribunal has considered the request to delay its decision until the nomination outcome for the application lodged on 11 September 2017 is known, and has taken into account the possible impact of this on the applicant and his family, but informed the applicant that it was not prepared to do so. The nomination process can go ahead without his physical presence in Australia and the applicant will be able to apply for a further Subclass 457 visa offshore if the nomination is successful. The applicant has permission to work but is not currently working for this employer so there is nothing to suggest that the business will be affected if he is not onshore during the processing of the application. While one of the reasons he put forward for not cancelling his visa in response to the NOICC was that he is good at his job, his oral evidence was that he had never worked as a Restaurant Manager.

   In terms of the financial burden referred to in his response to NOICC and his statement that he would go through a lot of financial difficulties, he did not provide any further detail to the department. At the hearing, he referred to having to live with a friend for around 5 to 6 months because he was not able to pay the rent, but that he was now renting a place in Harris Park after obtaining full work rights in March this year. He told the Tribunal that he is earning an income from being an Uber driver.

7. Prior to the hearing with this Tribunal the applicant was invited on 12 October 2018 to comment on or respond to information it considered would be, subject to his comments and response, the reason or part of the reason for affirming the decision under review. The particulars relate to his ceasing employment with his former sponsor, the possible breach of condition 8107, and to recent checks of the Department’s records confirming that he is not the subject of a relevant business nomination. The applicant was also invited to provide information regarding his circumstances and matters relevant to the Tribunal’s exercise of the discretion to cancel the visa, if it finds the ground for cancellation exists.

8. The applicant replied in writing on 5 November 2018. He repeated the details regarding the grant of the Subclass 457 visa on 22 October 2014. He stated that his visa was cancelled on the basis of a breach of condition 8107 because he ceased his employment on 14 August 2015. However he claimed he continued working for the sponsor until February 2016. In February 2016 his sponsor advised a change of management and one of the clauses of the contract was that the applicant would continue working for the business. The sponsor did not disclose the facts to the applicant. He was not issued with a notice of termination by the employer.  The new owner, Vir Pty Ltd, was willing to employ him in the same position. On 2 March 2016, within 90 days of ceasing employment, the new business lodged a new nomination application but this was refused on the basis the position was not genuine. In May 2016 Vir Pty Ltd made another nomination application but it was also refused.  Another employer, Tweed Heads Café, nominated the position Restaurant Manager on 8 November 2016 but it was refused on 24 July 2017. He acknowledged he was not employed from February 2016 in compliance with visa conditions. He noted however that his visa was cancelled pending another nomination application. He submitted that the cancellation has caused a negative impact on his future and his career. He did not intentionally breach any visa conditions and there is no adverse information held by the Department.

9. The hearing was scheduled for 10 January 2019. The applicant was advised the hearing would take up to 2 hours. On 9 January 2019 at 2 PM the applicant called the Tribunal and said that he was unwell and he would not be able to attend the hearing. He was asked to provide medical evidence for the Tribunal to consider. That afternoon he provided a medical certificate dated 9 January 2019 stating that the applicant would be unfit to continue his usual occupation from 9 January 2019 to 10 January 2019. As the medical certificate did not indicate that the applicant could not participate in a hearing the Tribunal decided to proceed with the hearing is scheduled. The applicant was informed by telephone and in writing that the Tribunal had not agreed to postpone the hearing. At the hearing on 10 January 2019 the applicant claimed to be too sick to give his evidence. The Tribunal agreed to postpone the hearing until 14 January 2019. The following is a summary of the oral evidence provided at the hearings.

10. The applicant confirmed that his usual occupation is as an Uber driver.

11. The applicant confirmed that the information given to the previously constituted Tribunal was true and correct.

12. The Tribunal noted that the applicant’s evidence about his position with Tamarin Pty Ltd was unclear as he had indicated that he was both an Events Manager and a Restaurant Manager. The applicant confirmed that he was sponsored to work in the nominated occupation Events Manager. He claimed that he managed nearly 100 events before Tamarin Pty Ltd ceased trading. He started working in the position shortly after 22 October 2014 when his visa was granted. He stopped working in the position in December 2015. He stopped working there because the Department told him he was not the subject of a nomination. His former employer at Tamarin, Mr Batra, told him in 2015 that he was going to cease trading because he had issues with ATO. He sold the business to Vir Pty Ltd. Vir Pty Ltd said they would sponsor him but he stopped working in December 2015 because there was no approved nomination. He has been working as an Uber driver since about March 2016.

13. The applicant indicated that there had been an error in the written submission, the reference to Restaurant Manager, because it was prepared by his friend, immigration lawyer Sanat Gupta.

14. The applicant confirmed that Vir Pty Ltd’s nomination applications were refused. He looked for another employer and sought sponsorship by Tweed Heads Café and they made 2 nomination applications but both were refused. When he attended the hearing with the previously constituted Tribunal he was waiting for another nomination application lodged by R & A Restaurant Pty Ltd, trading as Larousse French Restaurant, to be finalised. However when his review application was unsuccessful R & A Pty Ltd withdrew its nomination application. He did not ever work at Larousse French Restaurant.

15. The Tribunal noted that the Court remitted the matter because the previously constituted Tribunal had not taken into consideration that the applicant would not be able to lodge another substantive visa application for a 3 year period because he was not granted a bridging visa until more than 28 days after the cancellation of his temporary work visa. The Tribunal asked the applicant why he was not granted a bridging visa for more than 28 days after the Subclass 457 visa was cancelled. The applicant was not really sure. He had no idea how to apply for a bridging visa and he panicked. The Tribunal asked the applicant about his migration history. He indicated he had been in Australia since about 2009 and had held student visas and the Subclass 457 visa. When asked why, in those circumstances, he did not know how to apply for a bridging visa, he indicated that around the time Subclass 457 visa was cancelled his wife miscarried and he was distracted and distressed.

16. The Tribunal explained that it appeared there has been a breach of condition 8107 and that if it made that finding it would need to consider all of the relevant circumstances in the exercise of its discretion as to whether to cancel the visa. It asked about the applicant’s current circumstances. He confirmed that he works as an Uber driver and has been doing this since early 2016. He understands that this is not sponsored skilled employment. He lives with his wife. They have no children. She has been trying to get pregnant. They have not started any treatment because they do not have Medicare. His wife is not working.

17. The Tribunal explained that the Department’s records indicate that he is not the subject of an approved nomination. It noted that it had provided him with an opportunity to comment on this information in writing. He acknowledged that this is the case. The Tribunal explained that it may give significant weight to the fact that he has not worked in skilled employment for an approved sponsor as the subject of an approved nomination since 2015. The applicant acknowledged that this is the case but indicated that no one will hire him.

18. The Tribunal asked the applicant about his purpose for remaining in Australia given that he is not working in sponsored skilled employment. The applicant indicated he wanted to stay here as he will have a better future in Australia, the land of opportunity. When he applied for the Subclass 457 visa there was a path to permanent residence. However he understands there is no longer the same path.

19. The Tribunal asked the applicant about any other non-compliance with visa conditions. The applicant indicated there is no other non-compliance.

20. The Tribunal asked the applicant about the degree of hardship that may be caused by a visa cancellation. The applicant indicated that his family life would be affected because when he made the Subclass 457 visa application his parents thought that he would get permanent residence. He has not told his parents that his Subclass 457 visa was cancelled because they would be very disappointed. He wants to apply for another visa, such as a student visa so that he can study in Australia. The Tribunal asked why he cannot study in his home country. He indicated that Australian education is better than in India.

21. The Tribunal asked the applicant if he needs to remain in Australia because he is financially supporting his family at home. He denied this. He claimed that his parents actually send him money. The Tribunal asked why they would do that if they thought he was working in skilled employment in Australia. He said that he told his parents he needs money for medical treatment because his wife has been unable to get pregnant. However he used the money to cover the costs of living. He admitted he has not been honest with his parents about his circumstances.

22. The Tribunal noted the applicant sought judicial review on the ground that the previously constituted Tribunal failed to take into account the impact of PIC 4014 and the matter was remitted on this basis. The Tribunal asked the applicant if he had any further comments about any mandatory legal consequences of a visa cancellation. The applicant stated that he has been in Australia since 2009. He was a good student and has no criminal record. He wants another chance to get another visa so that he can study in Australia as an Australian degree is more valuable in India. The Tribunal noted the applicant’s earlier oral evidence suggested that he wished to remain in Australia permanently. He indicated that when he applied for the Subclass 457 visa it was his intention to utilise the permanent visa pathway. Now circumstances have changed. He claimed that after he is awarded a degree in Australia he will return to India. He has a Certificate IV and a Diploma in Business Management so he will be able to do an advanced diploma. The Tribunal asked how he intends to pay for further education in Australia. The applicant indicated his parents will support him. They are wealthy. They own a pharmacy business. He claimed that he had no choice but to not be honest with his parents about not having work rights for fear of disappointing them. There was a period when he borrowed money from his friends before he was granted permission to work.

1. The Tribunal asked the applicant if there was any other reason why he could not return to India. He indicated if he returns with only a diploma he will not have many job opportunities. He is not interested in working for his parents’ business.

Assessment of the evidence

1. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b), the visa holder has not complied with a condition of the visa. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

Does the ground for cancellation exist?

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

2. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a visa condition. In this instance condition 8107 attached to the applicant’s visa. This condition requires, amongst other things, that the applicant must work only in the occupation listed in the most recently approved nomination in a position in the sponsor’s business, and that if the applicant ceases employment, the period during which he ceases employment must not exceed 90 consecutive days.

3. The applicant in this case was sponsored by Tamarin Pty Ltd which was wound up due to insolvency in August 2015. The applicant’s evidence about the timing of his ceasing the employment is inconsistent but the Tribunal is satisfied that his most recent oral evidence is reliable and he ceased the employment in about December 2015.  The Tribunal is satisfied the applicant has ceased employment for a period exceeding 90 consecutive days. The applicant does not dispute this. The Tribunal finds therefore that the applicant has not complied with condition 8107(3)(b) of his Subclass 457 visa. 

4. 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

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

2. The Tribunal has considered the applicant’s evidence regarding his purpose for remaining in Australia. His oral evidence on this issue at first indicated that he wished to remain in Australia because of the opportunities. This suggested to the Tribunal that his intention was to remain in Australia permanently although the Tribunal notes he acknowledged that that pathway is no longer available to him. In his subsequent oral evidence he claimed that he now wishes to remain in Australia temporarily so that he can pursue further study here. He indicated he wants to apply for a student visa and plans to undertake an advanced diploma. This is not the purpose of a Subclass 457 visa. When asked how he intended to fund further study, he indicated that his parents will support him. However he also indicated that he had not told his parents that he is no longer in skilled employment and that they would be disappointed to find out that his pursuit of permanent residence may not eventuate.

3. The Tribunal is concerned that, since he ceased his skilled employment at the end of 2015, the applicant has not been able to secure sponsored skilled employment in Australia. There is no evidence to suggest that the applicant’s purpose for remaining in Australia is to work in sponsored, skilled employment in the foreseeable future.  Overall, given the purpose of a Subclass 457 visa, to fill a temporary skill shortage, the Tribunal gives this factor significant weight in favour of cancelling the visa.

4. With respect to compliance with visa conditions, the Tribunal has not seen any evidence to suggest that the applicant has breached any other visa conditions. The Tribunal also notes that the delegate found there was no information to indicate any concerns regarding the applicant’s behaviour towards the Department. The Tribunal however considers these factors to be neutral in its consideration of whether to cancel the visa as it is of the view it is reasonable to expect a visa holder to comply with visa conditions and cooperate with the Department.

5. Regarding the degree of hardship that may be caused by a visa cancellation, the Tribunal notes that the applicant’s wife has been trying to get pregnant for some years. The Tribunal accepts there is evidence the applicant’s wife miscarried in about January 2017 and that this has been the cause of some distress for the applicant and his wife. She has not pursuing any medical treatment for infertility because she does not have access to Medicare. The Tribunal accepts the applicant and his wife may suffer some hardship as a consequence of a visa cancellation in that the applicant would not be able to continue with his paid employment in Australia. However it notes that his current employment as an Uber driver is unskilled. The Tribunal also notes the applicant now wishes to pursue further education in Australia and he may be disappointed if he is unable to do this because of a visa cancellation. On the evidence before it, apart from the costs of returning to his home country, the Tribunal is not satisfied the applicant will suffer any financial hardship as a consequence of the visa cancellation. Overall the Tribunal is not satisfied the applicant will suffer significant hardship if the visa is cancelled. It gives this factor little weight in favour of not cancelling the visa.

6. With respect to the circumstances in which the ground for cancellation arose, the Tribunal is satisfied that the applicant ceased his employment with his former sponsor because the company was liquidated and ceased trading. It accepts that this is a circumstance beyond the applicant’s control and it gives this factor some weight in favour of not cancelling the visa. It also accepts that the applicant has made several attempts to secure sponsored skilled employment since that time. However, on his own evidence, he has been unsuccessful and has only worked in unsponsored, unskilled employment as an Uber driver since early 2016.

7. The Tribunal accepts that the applicant’s wife’s visa will be consequentially cancelled under s.140. As discussed above the Tribunal notes that the she had a miscarriage in 2017 and has not been able to get pregnant since. It notes she is not pursuing medical treatment for infertility in Australia because she does not have access to Medicare. Given their hopes to have a baby in the future it is important for the applicant and his wife to remain together. The Tribunal notes that the wife’s visa was granted on the basis of being a member of the applicant’s family unit. There is nothing before the Tribunal to suggest that a consequential cancellation will result in the couple being separated. The Tribunal also notes that a consequential cancellation is the intention of the legislation. Overall, the Tribunal considers this to be a neutral circumstance in its assessment of whether or not the visa should be cancelled.

8. The Tribunal has considered whether there are mandatory legal consequences if the visa is cancelled. The Tribunal notes the applicant may be detained if the visa is cancelled and he does not depart Australia voluntarily. It has taken into account the applicant’s claim that he may not be able to apply for another visa for a period of 3 years if he returns to India because he will be affected by PIC 4014 as he was not granted a bridging visa until more than 28 days after the cancellation of his Subclass 457 visa. It takes into account his evidence that he did not apply for the bridging visa within 28 days of the cancellation because he was distressed about his wife’s miscarriage. While the Tribunal accepts the applicant may be affected by PIC 4014 it notes the PIC 4014 restrictions can be waived if there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. Overall it gives this factor little weight in favour of not cancelling the visa.

9. Regarding Australia’s international obligations, there is no evidence before the Tribunal to indicate those obligations would be breached as a consequence of the visa cancellation. While the Tribunal accepts the applicant’s family may be disappointed that he has not been able to secure a permanent visa in Australia, it is satisfied the applicant has family support in his home country and he will be able to return to India if the visa is cancelled.

10. Considered overall, the Tribunal accepts that the ground for cancellation arose because of a circumstance beyond the applicant’s control, the sponsor’s insolvency. It gives this factor some weight in favour of not cancelling the visa. However the Tribunal notes that, despite several attempts, the applicant has not been able to secure sponsored skilled employment in Australia and has been working since early 2016 in unskilled employment as an Uber driver. The Tribunal gives the applicant’s inability to secure sponsored skilled employment significant weight in favour of cancelling the visa. Initially the applicant indicated he wish to pursue permanent residence in Australia however he then told the Tribunal that he now wishes to remain in Australia so that he can pursue further study. There is no evidence before the Tribunal to indicate that the applicant has a current enrolment. The Tribunal notes that this is not the purpose of a Subclass 457 visa. The applicant has also told the Tribunal that he and his wife now intend to return to Australia, albeit after he completes another qualification. The Tribunal accepts that there is no evidence to suggest there have been other breaches of visa conditions. It also accepts that the applicant has been cooperative with the Department. However it is of the view that it is reasonable to expect a visa holder to comply with visa conditions and cooperate with the Department and accordingly these factors have a neutral impact on its consideration of whether to cancel the visa. With respect to hardship, while it accepts the applicant will be disappointed, the Tribunal is not satisfied the applicant and his wife will suffer significant hardship if the visa is cancelled. While it accepts the applicant may be affected by PIC 4014 because he was not granted a bridging visa until more than 28 days after the cancellation of his Subclass 457 visa, it is satisfied that those restrictions can be waived in certain circumstances and it gives this factor little weight in favour of not cancelling the visa. The Tribunal accepts that there will be a consequential cancellation, the intention of the legislation. However it is satisfied that the applicant and his wife will not be separated by such a cancellation. While it accepts the applicant does not want to return to India until he has completed further study and that his parents will be disappointed that he has not been able to secure permanent residence in Australia, the Tribunal is satisfied that no international obligations will be breached if the visa is cancelled.  Considering all of the relevant factors in this case, the Tribunal is of the view the applicant’s circumstances weigh in favour of cancelling the visa.

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

DECISION

1. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

Denise Connolly
Member