Shah (Migration)

Shah (Migration) [2019] AATA 6649 (10 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Virang Sunilkumar Shah
Mrs Krusha Krushnakant Parekh
CASE NUMBER:  1810427
HOME AFFAIRS REFERENCE(S):          BCC2018/1080921
MEMBER:Cathrine Burnett-Wake
DATE:10 December 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 10 December 2019 at 4:05pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – potential unpaid work entitlements – adverse information – known visa rort scheme – non-genuine position – consideration of discretion – unable to secure new nomination – purpose of visa not fulfilled – degree of hardship – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107
CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 6 April 2018 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(b) on the basis that the first named applicant (the applicant) ceased employment with his sponsor and therefore breached condition 8107(3)(b). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.
The applicants appeared before the Tribunal on 12 December 2018 to give evidence and present arguments.
The applicants were represented in relation to the review by their registered migration agent Mr Justin Wilson.
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
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.
Does the ground for cancellation exist?
s.116(1)(b) – non-compliance with conditions
A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 is attached to the applicant’s visa. Of relevance in this case is 8107(3)(b) which requires that if the applicant ceases the relevant employment, the period during which the applicant ceases employment must not exceed 90 consecutive days.
The evidence before the Tribunal indicates that the applicant was granted the 457 visa on 10 September 2014 on the basis of a nomination by LH AUST Pty Ltd ATF LH AUST UNIT TRUST (the sponsor) for the position of Web Designer ANZSCO 232414.
The Tribunal has before it a copy of the Department’s decision record to cancel the applicant’s 457 visa. The decision record was provided to the Tribunal by the applicant as part of this review application.
The decision record of the Department outlines the applicant was previously notified on 8 November 2017 of its intention to consider cancellation of the 457 visa under s.109 of the Act. In response to a request made to the applicant by the Department on 14 February 2018 in relation to that cancellation consideration, the applicant advised the Department on 19 February 2018 he ceased employment with his sponsor, and the final date he worked for his sponsor was 31 October 2017. The applicant also provided to the Department what he advised was his final payslip from the sponsor which referenced the payment date of 26 October 2017. It should be noted that the Department did not proceed to cancel the applicant’s visa under s.109.
The Department’s decision record goes on to outline that the Department decided on 12 October 2017 to bar the applicant’s sponsor for five years from making future applications for approval as a standard business sponsor. Further that in accordance with that decision the Department on 18 October 2017 refused an application earlier made by the applicant on 27 June 2017 for approval for a nomination to work for the sponsor as a Web Designer for the purpose of lodging a 186 visa application through the temporary residence transition stream.
On 7 March 2018, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) by the Department, stating that it appears that the applicant had ceased employment with the sponsor effective 31 October 2017, which indicates that he is in breach of paragraph 8107(3)(b) of condition 8107 attached to the visa, because he appears to have ceased employment with the sponsor for a period exceeding 90 consecutive days.
The applicant wrote to the Department in response to the NOICC. The decision record outlines that in his response he claims the cessation of his employment with his sponsor was sudden and unexpected and he may still be owed unpaid leave and other entitlements which could mean he was in the employment of his sponsor for a period beyond 2017. The visa holder claimed his sponsor ceased paying him at the end of October 2017 and he had attempted since to establish contact with the sponsor to understand if this break in employment was temporary or permanent. The applicant claimed he had not been privy to any of his employer’s issues with the Department or any other government agencies. He claimed that all he knows is that his pay stopped and therefore in the short term given he was not being paid he was not going to work.
Notwithstanding the applicant’s response to the NOICC, the Department proceeded with the cancellation on 6 April 2018. The grounds for cancellation, as set out in the Department’s decision were as follows:
I have considered the information provided by the visa applicant in response to the NOICC. I find the Visa holder confirmed he ceased employment with his sponsor LH AUST PTY LTD ATF LH AUST UNIT TRUST, and as he submitted he ceased employment with his sponsor when they stopped paying him, his final payment date of 26 October 2017 (referenced in the payslip earlier provided by the Visa holder) is consistent with his employment having ceased on 31 October 2017. Although the Visa holder may have been uncertain at the time about whether his cessation of employment would be temporary or permanent, it remains he has not since returned to the sponsors employee, and has considered this would now be unlikely. Further, the Visa holder provides no evidence of detail of the entitlements he indicated he may be owed by the sponsor, and no further information about how or to what date this may have extended his employment by the sponsor.
On the information before me I find the Visa holder ceased employment with the sponsor of his Temporary Work (subclass 457) Visa on 31 October 2017. I also find he has not since been nominated by any other sponsor to work for them in any nominated occupation – for the purposes of his temporary work (subclass 457) visas or otherwise. As the period during which the Visa holder ceased employment has exceeded 90 consecutive days, I find the Visa holder failed to comply the requirements of condition 8107(3)(b) attached to his Visa, and his Visa is therefore liable for cancellation under section 116(1)(b) of the Migration Act.
Written submissions received prior to hearing
On 9 November 2018 the Tribunal received the following submission by email from the representative:
We confirm that the applicant seeks the review of his matter to cancel of his 457 visa on the basis of the impact this cancellation would have on his and his spouse’s future prospects for work, study and residence opportunities in Australia, the USA and other nations in which the applicant may look to create a future.
The applicant in responding to the request for Hearing confirmed his desire to seek this review of this decision and provides this further information to re-confirm his intention to present additional information at Hearing in this regard.
The applicant was at the mercy of his employer who was unable to provide on-going work as per the arrangements of his visa, however the employer did not afford the applicant the information and opportunities he needed to enable him to secure alternative nomination prior to the cancellation of his visa.
The applicant has been living in Australia all his adult life and is responsible for supporting his family in India. The cancellation of his visa has far reaching consequences on his ability to continue to work in the Western world and for this reason he believes that there are compelling reasons justifying the overturning of the decision of the Department to cancel his visa.
On 23 November 2018, the Tribunal received supporting statutory declarations from both applicants. The Tribunal has had regard to these statutory declarations provided and the statements set out within them. It notes they are mostly consistent with the verbal evidence provided at hearing, which is summarised below.
Applicant’s evidence at hearing
The applicant’s verbal evidence at hearing can be summarised as follows:
·The applicant came to Australia in June 2008 on a student visa. Whilst on a student visa he completed a Bachelor of Information and Technology in 2010 from the University of Ballarat. Following his undergraduate degree, he then completed a Masters of Information and Technology, graduating in March 2012.
·Following the completion of the Masters degree, another student visa was applied for and granted so the applicant could undertake a Diploma in Business Management at the Australian Institute of Enterprise, which he completed in March 2013. Following this, he completed an Advanced Diploma in Business Management graduating in March 2014.
·Whilst the applicant was studying he worked at Crown Casino as a contract cleaner, through ICON a labour hire company.
·After completing studies in 2014 the applicant undertook research to find an employer sponsor. A friend (not identified to the Tribunal) introduced him to someone who worked at a recruitment agency, which he could not recall the name of. The recruitment agency, the name of which could not be recalled, organised a job interview with the sponsor in May of 2014.
·Following the job interview the sponsor offered him the role of Web Developer and he undertook training in May and June of 2014 which he was not paid for. The applicant explained he was not paid because he was ‘new in the industry’.
·During the training period the applicant attended the sponsor’s premises in Richmond on Adelaide Street three days per week which added up to 20 hours per week in total.
·Whilst training he would watch his colleagues create websites.
·Following the ‘training period’ he commenced part-time paid work for 20 hours per week.
·On 9 October 2014 the applicant commenced full-time work as a Web Developer.
·The main business of his sponsor was accounting. However, they also had a financial advice and an IT department. The IT clients were sourced through the accounting arm of the business and they would build websites for these clients.
·Approximately 25 people worked in the Richmond office, 5 of whom were in the IT department.
·The applicant would attend the Richmond office every day.
·After employment with the sponsor for 3 years, in approximately October 2017, the applicant received an email from the Department which detailed they could not find the sponsor’s base and an investigation was being undertaken. The applicant raised this email with his manager and he was informed he did not need to worry.
·Before October 2017 there was less work, and then from October 2017 the sponsor told the employees that they did not have enough work and they should go home and they would be in contact if circumstances changed.
·The applicant was not aware what the problem was, and he would call every week to enquire if there was work available.
·The applicant stopped going into work every day in October 2017 although was still under the impression it was temporary as his supervisor said not to worry about it.
·The applicant was not aware of the trading situation or the investigation of the company. The applicant realised there was no job in March 2018 after the NOICC was received.
·The applicant had continued working with the sponsor because he thought he could get permanent residency after 2 years working with them, which he claimed they said they would sponsor him for.
·The applicant conceded that he was aware of the condition that if he ceased employment that he must find another employer. However, he could not find another employer.
·The applicant went and saw the lawyer who worked for the company who was also a migration agent to get advice about what to do. The in-house migration agent told the applicant not to worry, the sponsor will contact the Department.
- The applicant’s wife joined him in Australia 2 years ago.
·Since ceasing work with the sponsor, the applicant has met his cost of living requirements by relying on savings, parents and friends.
·The applicant has been trying to find a new employer sponsor to stay in Australia. He has also been undertaking English courses to improve his English with the intention to receive enough points to lodge an expression of interest for a skilled independent visa.
·The applicant claimed he was applying for a minimum of 10 jobs per day and he also had a recruitment agency assisting him. However, because he did not have a work visa nobody would employ him.
·The applicant wants to stay in Australia because he came when he was 18 and has spent a long time here. There is nothing for the applicant to go back to in India. His parents just live on a pension, and now he has a wife he needs to take care of her and the parents. If he goes back to India he will have nothing over there. If he is able to stay in Australia he can survive.
·If the cancellation is set aside he can go to another country. If he has a cancellation no country would give him a visa. He needs his case to be cleared in order to apply to the UK and Canada.
·He does not want to start from nothing. He has looked into submitting an expression of interest for permanent residency however is worried about the impact of the cancellation and his ability to apply if his expression of interest is accepted.
Secondary applicant’s evidence at hearing
The secondary applicant’s verbal evidence at hearing can be summarised as follows:
·They aspire to live in a western country.
·Her in-laws are retired and live on a pension.
·They have a loan and they take money from their parents and friends to live and survive.
·There is nothing in India for them to go back to.
·They want to stay in Australia to work and clear debts and think of their future.
·If they don’t get a cancellation stamp they will look at applying to another western country for a visa.
Adverse information
After the hearing the Tribunal became aware of information that was potentially adverse to the applicant. As such, the Tribunal, pursuant to s.359A of the Act, sent the applicant a letter to provide comment on this information. Relevantly the letter stated:
The particulars of the information are that:
·The Department file contains the online application forms ‘Business Nomination Visa Record of Response’ and ‘Long-Stay Temporary Business Visa Record of Response’ completed for your application. These online application forms indicate your sponsoring employer as LH Aust Pty Ltd trading as A&S IT Services. Copies of the application forms are enclosed;
·The Department file contains the online application form ‘Business Nomination Visa Record of Response’ and ‘Long-Stay Temporary Business Visa Record of Response’ completed for your application. These online application forms indicate the migration agent for your 457 visa application and the associated nomination was Mr Craig Nixon of Level 1, 2 Adelaide Street, Cremorne. Copies of the application forms are enclosed;
·The Department file contains reference to your sponsoring employer being formally known as LH AUST PTY LTD AT LH AUST UNIT TRUST and trading as both ‘A&S IT Services’ and ‘A&S Services.’
·The Tribunal has become aware of six ABC news articles retrieved from the internet and dated 17 October 2016, 7 February 2017, 3 April 2017, 16 June 2017, 28 June 2018, 28 November 2018 and an Insolvency News Online article dated 19 October 2016. Copies of these news articles are enclosed;
·The ABC news articles dated 16 June 2017, 28 June 2018 and 28 November 2018 include allegations that indicate that your initial sponsor’s migration agent, Mr Craig Nixon, is or was an employee or associate of a person known as Mr Phillip Whiteman (amongst other names) and that they, in concert with Mr Dunner and others, operated a scheme where “fake” businesses and jobs were created in Australia, allowing people from overseas to apply for and receive Subclass 457 visas to fill these positions even though both the businesses and positions were not genuine;
·These articles allege one aspect of this scheme is that recipients of such Subclass 457 visas would arrive in Australia and pay money to Mr Whiteman or his associates, that money was then transferred to other companies controlled by Mr Whiteman or his associates and then returned in part or whole to the Subclass 457 visa holder to make it look like the visa holder was being paid a salary;
·The ABC news article dated 16 June 2017 alleges Mr Dunner was also working for Mr Whiteman and that at the time of the report Mr Dunner had recently been convicted of defrauding the Commonwealth Government and was awaiting sentencing;
·The Insolvency News Online article states an Australian Tax Office and other agencies executed a search warrant on Mr Whiteman controlled companies at Level 1, 2 Adelaide Street, Cremorne in September 2016;
·Your lawyer and registered migration agent, Justin Wilson, submitted in a response dated 22 November 2017 to a Notice of Intention to Consider Cancellation of a visa (NOICC) dated 8 November 2017 that you claim to have worked at this Cremorne addresses as provided in your employment contract;
·The ABC news article dated 7 February 2017 states that Mr Whiteman moved his operations to Chapel Street, Prahran and began operating from that premises and that when Mr Whiteman did so he ceased trading under several names, one of which included A&S Services, which is alleged by a person quoted in the article to have unlawfully diverted tax returns totalling $100,000 and to have been represented by Mr Whiteman in the subsequent dispute;
·The ABC news article dated 28 June 2018 states that the Australian Tax Office forced five companies controlled by Mr Whiteman, including A&S Services into liquidation in 2017.
·The Tribunal has obtained a copy of LH AUST PTY LTD’s current and historical extract from the Australian Securities Investment Commission. A copy of which is enclosed. The extract details that the Australian Taxation Office commenced winding up proceedings for LH AUST PTY LTD, which is consistent with the reported ABC news article dated 28 June 2018.
This information is relevant to the review because the Tribunal may form the view that:
·LH AUST PTY LTD ATF LH AUST UNIT TRUST was not a genuine business;
·LH AUST PTY LTD ATF LH AUST UNIT TRUST was part of a scheme conducted by Mr Whiteman, Mr Nixon, Mr Dunner and others where companies were created or used that were not operating as legitimate businesses and one of the purposes of some of those companies was to create employment positions that did not genuinely exist for the purpose of assisting people from overseas to obtain Subclass 457 visas that they were not genuinely entitled to;
·The position of web developer offered to you by LH AUST PTY LTD ATF AUST UNIT TRUST was not a genuine position;
·You did not genuinely work as a full time web developer for LH AUST PTY LTD ATF LH UNIT TRUST or anyone else at Level 1, 2 Adelaide Street, Cremorne or at 291/189 Queen Street Melbourne; and
·You have intentionally misled the Department and the Tribunal in claiming to have genuinely worked as a full time web developer at these premises between 10 September 2014 when your 457 was granted and 31 October 2017 when you ceased employment with LH AUST PTY LTD ATF LH UNIT TRUST.
The consequences of the Tribunal relying on this information are that the Tribunal may find that as the nominated position of web developer with LH AUST PTY LTD ATF LH UNIT TRUST was not a genuine position there is a prescribed ground for the cancellation of your Subclass 457 visa under r.2.43(1)(kb)(iii) and therefore your Subclass 457 visa may be cancelled under s.116(1)(g) of the Act.
In addition, as the cancellation of a visa is not mandatory under s.116(1)(g), the Tribunal may find that in the circumstances of your application of being involved, knowingly or otherwise, in a scheme operated by Mr Whiteman and others, to circumvent Australia’s migration laws, and by you making false claims of having worked full time as a web developer between September 2014 and October 2017, the discretionary considerations the Tribunal must consider when deciding whether your Subclass 457 visa should remain cancelled or not, overall weigh in favour of, rather than against, the ongoing cancellation of your Subclass 457 visa.
As noted above, if the Tribunal were to rely on this information, it would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate to cancel your visa that is under review.
Response to adverse information

In response to the Tribunal’s letter on 13 June 2019 the applicant provided a signed letter which stated:
I the undersign Viran Shah was working on a LH Aust Pty Ltd company for more than two years.
I have received reference letter from the company and I got paid according. I have got all details payslips during the period and I paid the tax returns according that.
I never met with the Mr Philip Whiteman who was owner or founder of that organisation as I am working as a normal employee
I don’t have any clue of any fraud going on this company. On 2017 my manager informed me that there was a problem going on and the head office and they will let me know when I had to return for work. I was waiting for their reply but they don’t have any further information despite asking calling them numbers of times. I provided all the correct documents when I attained hearing at the court.
Tribunal’s findings on the evidence before it
The applicant’s response to the Tribunal’s s.359A letter does not adequately address the Tribunal’s concerns given the detailed information provided to the applicant to comment on.
Notwithstanding this, the Tribunal will not be proceeding with its line of enquiry regarding the circumstances of the applicant’s involvement, knowingly or otherwise, in a scheme operated by Mr Whiteman and others, to circumvent Australia’s migration laws. Although it is open to the Tribunal to do, it will not be proceeding to make findings relating to s.116(1)(g) as put to the applicant in the s.359A letter.
The Tribunal will proceed on making findings regarding whether grounds for cancellation exist pursuant to s.116(1)(b) and whether the Tribunal is satisfied that the applicant did not comply with condition 8107 attached to the applicant’s visa. Relevant in this case is 8107(3)(b) which requires that if the applicant ceases the relevant employment, the period during which the applicant ceases employment must not exceed 90 consecutive days.
The Tribunal will proceed on the basis of the claims before it made by the applicant regarding his employment being:
1. The applicant commenced full-time employment with the sponsor on 9 October 2014;
2. Leading up to October 2017 there was less work and the applicant and other employees were told to go home;
3. The applicant stopped going into work every day in October 2017;
4. On 19 February 2018 the applicant informed the Department that he ceased employment with his sponsor, and the final date he worked for his sponsor was 31 October 2017. The applicant also provided to the Department what he advised was his final payslip from the sponsor which referenced the payment date of 26 October 2017;
5. The cessation of employment with the sponsor was sudden and unexpected;
6. He may still have been owed unpaid leave and other entitlements which could mean he was in the employment of his sponsor for a period beyond 2017;
7. Initially he was of the belief that the cessation in employment was temporary and only realised it was permanent in March 2018 when the NOICC was received.
It is clear to the Tribunal, based on the applicant’s claims, that he ceased work at the end of October 2017. The Tribunal acknowledges that the applicant may have been caught by surprise and the end of his employment was sudden and unexpected, however, that is generally the case when an employer terminates employment. Further, based on the applicant’s own evidence at hearing there may have been some indication to him that things were not going so well for the sponsor as he stated there had been a downturn in the volume of work leading up to October 2017.
The applicant has made a claim that he may have still been in employment beyond October 2017, because of other possible entitlements owed. The Tribunal does not accept the unsubstantiated claim that his employment extended beyond the end of October 2017 because of possible entitlements not being paid. Further, the Tribunal also does not find the claim plausible that he was of the belief for a 5-month period that the cessation of employment was only temporary and did not realise it was permanent until March 2018 when he received the NOICC from the Department. The applicant had, as detailed in his verbal evidence, sought advice pertaining to what to do and was aware of his visa conditions that he would need to find another sponsor.
The Tribunal notes the representative’s submission of 9 November 2018 where it asserts the employer did not afford the applicant the information and opportunities he needed to enable him to secure an alternative nomination prior to the cancellation of his visa. However, there is no legal requirement or basis for a sponsor to assist a 457 employee with securing an alternative nomination with a different employer if employment is terminated.
The Tribunal finds the applicant ceased his claimed employment for more than 90 consecutive days.
For the reasons detailed, 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 visa should be cancelled.
Consideration of discretion
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’.
The purpose of the visa holder’s travel to and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The purpose of the 457 visa is for an applicant to work on a temporary basis (usually for up to 4 years) for an approved sponsor in an approved occupation. Since ceasing employment with LH AUST Pty Ltd ATF LH AUST UNIT TRUST, there is no evidence before the Tribunal to demonstrate that the applicant has been able to secure another nomination.
The applicant claimed that he had been applying for a minimum of ‘10 jobs per day’, yet no evidence was provided to the Tribunal to substantiate such a claim. Nor was evidence provided to support his claim that he was with a recruitment agency.
The Tribunal notes that the objectives of the Temporary Skilled Migration program were to fill skills shortages as listed on the skilled occupation list and that if an applicant had been unable to secure an approved nomination then this meant the applicant was not able to fulfil the purpose of the 457 visa and this weighs strongly in favour of cancelling the visa.
The extent of compliance with visa conditions
The Tribunal has considered the applicant’s compliance with visa conditions and is satisfied that other than condition 8107(3)(b) he has appeared to have complied with visa conditions.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal has also considered the hardship that may be experienced if the visa is cancelled.
The applicant has claimed that he has been in Australia since he was 18 and that if he had to leave it all would have been for nothing if he is not able to get permanent residency. The Tribunal acknowledges that the applicant has undertaken all of his higher education in Australia and spent significant time here, establishing ties and connections. However, the applicant was on temporary visas during this time, and holding temporary visas is not a guaranteed pathway to obtaining permanent residency. One must be eligible. Although an opportunity may have been lost to apply for a 186 visa through the temporary residence transition stream through his sponsor, the applicant still may have other opportunities for permanent residency via other visa pathways in the future. As per the evidence he gave at hearing he was undertaking English classes to improve English with a view to increasing his point score for lodging an expression of interest with the hope of being selected to apply for permanent residency. Although the applicant’s hopes of obtaining permanent residency through his sponsor have not transpired as planned, the Tribunal is of the view that it is still possible other migration opportunities may be or become available, which the applicant appears to be aware of, by trying to better his English skills to achieve sufficient points for an independent skilled visa.
The applicants claim to have loans and other debts, however, no evidence of these has been provided to the Tribunal. The Tribunal does acknowledge that there will be some financial hardship if the applicants are to return to India, including the cost of flights and short-term re-establishment costs. However, the applicants have both stated they have received family support financially to survive thus far and there is no evidence before the Tribunal that the applicants’ family could not assist further until the applicants are re-established.
Both applicants claim that they do not want to return to India, because there is nothing there for them. The Tribunal accepts that financially, the applicants would be in a better position if they remained in Australia. However, given the qualifications the applicant holds and because they are Australian qualifications, the Tribunal is of the view that he would likely find employment in India within his profession.
The applicants have made claims that they will not be able to apply for visas to other western countries because of the visa cancellation. As such their aspiration to live in a western country would not eventuate and preclude them from applying to other countries such as the US, Canada or the UK. The Tribunal acknowledges that there may be issues applying for visas to other countries if a cancellation has occurred, however, the significance of a cancellation or the extent of how it may prevent applications to other countries has not been provided to the Tribunal to consider.
The Tribunal gives minimal weight to the hardship claims presented by the applicants.
Circumstances in which ground of cancellation arose
The Tribunal has also considered the circumstances in which the ground for cancellation arose. In this case, the ground for cancellation arose 90 consecutive days after the applicant ceased employment with the sponsor as he was unable to secure another nomination within the 90-day period.
The Tribunal notes the applicant’s assertions that he has made efforts to secure another nomination, but no evidence corroborative of this has been provided to the Tribunal.
The Tribunal finds that these circumstances weigh in favour of cancelling the applicant’s visa.
Past and present behaviour of the visa holder towards the Department
The evidence before the Tribunal is the applicant has been cooperative with the Department. The Tribunal gives the applicant’s behaviour some weight in favour of not cancelling the visa.
Whether there would be consequential cancellations under s.140
The Tribunal accepts that in the event the applicant’s visa is cancelled, the second named applicant would be subject to consequential cancellation under s.140 of the Act.
Whether there are mandatory legal consequences
If the applicant’s visa is cancelled, he would become an unlawful non-citizen and be liable to be detained under s.189 of the Act unless granted another visa. There is no suggestion that he would be detained indefinitely because as an Indian citizen he will be able to return to India. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia and he may be subject to an exclusion period in relation to some future visa applications. Section 48 of the Act prevents a non-citizen who held a visa that was cancelled under s.116 from applying for any visa not prescribed for the purposes of s.48 while in the migration zone. The applicant did not suggest that non-refoulement obligations would be breached as a result of the visa cancellation, and the Tribunal has given this factor no weight in favour of or against cancellation.
FINDING
The Tribunal has considered and weighed up all of the relevant circumstances in this case. The Tribunal acknowledges that the applicants may experience hardship, including financial and emotional hardship, if the visa is cancelled. The Tribunal also accepts that the applicants on the basis of the evidence before it have generally complied with visa conditions and have been cooperative with the Department. While these circumstances weigh in favour of the applicant, the Tribunal gives more weight to the purpose of the 457 visa and the fact that the applicant has been unable to secure another nomination since ceasing work with the sponsor two years ago. The applicant can, should he wish to do so, make an application offshore at some future point pending the passing of any applicable exclusion periods.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
The Tribunal has no jurisdiction with respect to the second named applicant.
Cathrine Burnett-Wake
Member

[2019] AATA 6649

10 December 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Breach

Remedies