SHARMA (Migration)

SHARMA (Migration) [2019] AATA 450 (14 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr RAGHAV SHARMA
CASE NUMBER:  1714599
HOME AFFAIRS REFERENCE(S):           BCC2016/3568188
MEMBER:Alan McMurran
DATE:14 February 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 14 February 2019 at 3:54pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – employed by an existing or former business sponsor – sponsor barred for two years – strike off action against the sponsor – limited attempts to find other sponsored employment – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994, r 2.43
CASES
Kumar v Minister for Immigration [2012] FCCA 1353
Minister for Immigration and Border Protection v Haq [2019] FCAFC 7
Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 5 July 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).
The review applicant (applicant) is a 31-year-old citizen of India who arrived in Australia on 25 June 2008 on a vocational education and training visa (subclass 572). The applicant applied for a 457 visa on 23 December 2015, granted on 12 February 2016.
The applicant was working as a Restaurant Manager at the Harbour Indian restaurant at Millers Point in Sydney. The applicant’s then sponsor was Nanotek Technologies Pty Ltd (the sponsor).
On 20 October 2016, the sponsorship approval was cancelled by the Department and the sponsor barred for a period of 2 years effective from 20 October 2016.
The Department notified the applicant on 15 June 2017 of its intention to consider cancelling the applicant’s visa. The Department did not receive any response to the notice, resulting in the cancellation the subject of this review.
The delegate cancelled the visa under s.116 (1) (g) on the basis that there was a prescribed ground for cancelling the visa which affects the visa applicant (the applicant). The prescribed ground is found in Regulation 2.43 of the Regulations, and in this instance, the relevant ground is that the applicant’s sponsor has been cancelled or barred.[1]
[1] Reg 2.43(l)(iv)
The issue in the present case is whether the ground for cancellation is made out, and if so, whether the applicant’s visa should be cancelled.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Background -Hearing Postponements
The period of delay between cancellation of the sponsor on 20 October 2016 and the hearing of this application on 26 October 2018 plays a part in consideration of the Tribunal’s response to the application, as it takes into account things that may have occurred in that period, including from the time of application to the time of decision.
The Tribunal has set out below the information and submissions made at the hearing, but deals firstly with the applicant’s requests for postponement before the hearing, which have not otherwise been explained.
The Tribunal sent a letter on 9 July 2018 inviting the applicant to appear for a hearing on 9 August 2018.
The invitation includes some standard information about hearings for the benefit of the attendee. It includes a note that states:
“If you are not able to attend the scheduled hearing, you need to advise us as soon as possible. Please note that we will only change this state is satisfied that you have a very good reason for being granted an adjournment. If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.”
On 8 August 2018, at 10.57am, the Tribunal received an email from the then representative for the applicant. The email was “requesting for a postponement of tomorrow hearing”.[2] The email attached a medical certificate (“certificate”). The certificate states the applicant, “Raghan Sharma has a medical condition and will be unfit for work from 08/08/2018 to 09/08/2018 inclusive.”[3]
[2] Tribunal file f 33
[3] Tribunal file f 32
The applicant was invited to provide further information concerning the medical certificate and the reason why the applicant was prevented from appearing at the scheduled hearing, which the applicant subsequently did not attend.
The Tribunal received no response to a Tribunal letter which was sent to the representative for Mr. Sharma on 9 August 2018. A Tribunal officer also telephoned the representative on 9 August 2018 and there was no response and the Tribunal officer left a voicemail message with a phone number for the representative to call. The Tribunal did not receive a response to either the email letter or the telephone message.
The Tribunal was concerned as there was virtually no information currently on the Tribunal’s file other than the Department’s decision, and which might otherwise assist in the Tribunal’s consideration of the cancellation, in particular the discretionary elements which are necessary to take into account. The Tribunal gave the applicant the benefit of the doubt and re-scheduled the hearing to 26 October 2018. The difficulty for the Tribunal in considering the request for the postponement was because the medical certificate was “woefully inadequate” to explain the applicant’s failure to appear.[4]
The Hearing
[4] See Kumar v Minister for Immigration [2012] FCCA 1353 per Wilson J at par 7
The Tribunal sought to have before it all the relevant facts matters and circumstances, so that where there is a finding that there is a valid ground for cancellation, the applicant is provided with a reasonable opportunity to produce information for consideration by the Tribunal, when exercising its discretion. Re-scheduling of the hearing allowed the applicant further time to provide information and to appear and present arguments and make submissions.
The matter was heard on 26 October 2018 when the applicant appeared, without an interpreter. The applicant’s newly-appointed representative also appeared and presented fresh information and made submissions.
The factual background was not in contest and is set out in the chronology below. Newly-presented information, including a fresh nomination by a prospective employer was also in evidence .The Tribunal notes that this information had not been available to the Department at the time of the delegate’s decision.
At the end of the hearing, the Tribunal allowed the applicant a further short-period to await the outcome of the fresh nomination application. Details of the fresh nomination were included in the applicant’s recent information and are referred to below.
The Tribunal asked the applicant a number of questions at the hearing concerning the applicant’s understanding of the reasons for the cancellation and the applicants work history since cancellation in October 2016. The hearing was conducted in the English language and the Tribunal asked the applicant to confirm at the end of the hearing whether he had understood the process, the questions, or had any further comments he might wish to make. The applicant then deferred to oral submissions made by his representative, which the Tribunal accepts as accurate, fair and reasonable.
Chronology
As a starting point, the Tribunal notes the detailed chronology contained in the formal written submission from the representative dated 25 October 2018, and finds it useful to summarise the following points:
·     the applicant completed his primary and secondary school education in India, but had no work experience before coming to Australia;
·     the applicant arrived in Australia as a student on 25 June 2008.
·     from 2008 until 2011, the applicant completed a certificate in Hospitality Management at Bankstown in Sydney;
·     from 2011 until 2013, the applicant completed an Advanced Diploma in Management at Parramatta in Sydney;
·     while studying, the applicant had worked part-time at Woolworths;
·     in 2014, the applicant commenced a Diploma of Accounting which he did not complete. Instead, the applicant commenced employment with the sponsor, obtained in December 2015 and subject to the grant of his 457 visa;
·     the Department first approved a sponsorship application for the sponsor (Nanotek Technologies Pty Ltd t/as Indian Harbour Restaurant) on 18 March 2015, which expired on 18 March 2016;
·     a second sponsorship application was approved on 4 May 2016, due to expire on 4 May 2021;
·     the applicant was employed by the sponsor and a 457 visa issued on 12 February 2016;
·     following monitoring by the Department, the decision was made on 20 October 2016 to cancel the approval of the sponsor as a standard business sponsor under section 140 M (1) (a) of the Act;
·     as at the date of this review, the regulatory authority, ASIC, has published by extract from its database that a strike off action is in progress against the sponsor;
·     the applicant was advised by his then agent in October 2016 that the cancellation of the sponsorship may lead to the cancellation of the applicant’s visa;
·     between October 2016 and July 2017, the applicant sought assistance from friends in the Indian community, including other work opportunities;
·     on 15 June 2017, the Department sent a notice of intention to consider cancellation of the applicant’s 457 visa, by email to the applicant;
·     in July 2017 the applicant instructed his then agent to reply concerning the applicant’s attempts to find another employer; the Department however did not receive any communication from the agent and indeed the Department had no information before it about the applicant at all;
·     on 5 July 2017, the Department made a decision that a ground for cancellation of the applicant’s visa was made out, as the sponsor was then cancelled or barred under section 140M of the Act; the decision found that the applicant had not responded to the notice addressed to him and there was no evidence before the Department that a new sponsor nomination had been approved;
·     on 5 July 2017 the applicant’s 457 visa was cancelled; the fact is there was little or no evidence for the Department to consider to give weight to the exercise of the discretion not to cancel the visa;
·     the applicant found a new representative and lodged this review in the Tribunal on 7 July 2017;
·     the Tribunal wrote to the applicant on 10 July 2017, 17 July 2017 and again on 9 July 2018;
·     The applicant did not respond to the Tribunal’s correspondence.
·     On 8 August 2018 the applicant requested the adjournment referred to above, then made a written submission on 24 August 2018, appointed another representative on 26 September 2018, and then provided further documents by email on 25 October 2018 at 5.06pm for the hearing on 26 October 2018;
·     The documents provided on 25 October 2018, included a letter from the previous representative, Juris Lawyers, dated 30 June 2017, which document was not included in the DIBP file[5] and which corroborated at hearing the applicant’s submission that he had attempted (through the agent) to respond to the Tribunal’s notice in July 2017.
·     The documents also included confirmation of the lodgement of a nomination application in respect of the applicant on 21 September 2018, by Global Australia Services Pty Ltd (Global) trading as Tamarin Indian restaurant at Bathurst in New South Wales.
·     Evidence was also provided of the notification of approval of Global as a standard business sponsor on 21 February 2018, valid to 21 August 2019.
[5] BCC2016/3568188
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) (g).
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. Those matters of policy are a guide only for the Tribunal to consider as might be appropriate. Where a ground for cancellation exists, as those grounds do not require mandatory cancellation of the applicant’s visa under section 116 (3) of the Act, the Tribunal must proceed to consider whether, as a matter of discretion, the power to cancel the visa should be exercised.
Does the ground for cancellation exist?
s.116(1)(g) - prescribed ground
Regulation 2.43 specifies that for the purpose of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), several grounds are prescribed.
In the present case, the prescribed ground is in the Regulations, sub-regulation 2.43 (l) (iv) which states:
“(l) in the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa who is a primary sponsored person in relation to a person who is, or was, a standard business sponsor or party to a labour agreement (the sponsor) — that:….
(iv) the sponsor has been cancelled or barred under section 140M of the Act”
The Tribunal finds that the applicant is the holder of a 457 visa and is a primary sponsored person within the meaning of the sub-regulation, and was employed by an existing or former business sponsor (the sponsor) as required for the visa.
Sub-regulation 2.43 (l) as set out above provides for cancellation of the applicant’s visa where the sponsor has been cancelled or barred. The Tribunal is satisfied on the evidence that on 20 October 2016 a delegate of the Minister cancelled the sponsor’s approval as a standard business sponsor under section 140M of the Act, and barred the sponsor for a period of 2 years.
As of 5 July 2017 (the date of the delegate’s decision) the ground prescribed under regulation 2.43(1)(l)(iv) existed and the delegate had grounds to cancel the applicant’s visa. The Tribunal is satisfied and finds that the prescribed ground in s116 (1) (g) for cancellation 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.
Discretion – Should the visa be cancelled?
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’.
In exercising its discretion, the Tribunal may be guided by a number of factors such as the particular personal circumstances of the individual visa applicant, including any prospects the applicant may have and which are now disclosed to the Tribunal, and the conduct of the applicant towards the Department in the intervening period since cancellation. The Tribunal has dealt with the events since the Tribunal hearing below. As there are no prescribed discretionary grounds for consideration each case will turn on its own facts.
As regards the finding of the facts, the obligation is on the decision maker to be satisfied and not on the former visa holder to establish that certain factual grounds for exercise of the discretion do not exist.[6] In determining whether it is appropriate to cancel the visa, the Tribunal has regard to the nature of the circumstances surrounding the cancellation and the gravity of the consequences.
Applicant’s conduct and circumstances surrounding the cancellation
[6] Zhao v Minister for Immigration & Multicultural Affairs[2000] FCA 1235
The Tribunal has considered in this case the applicant’s submissions that the applicant himself is innocently a victim of circumstances in which he has not participated, other than bone fide as an employee.
The applicant has been aware since at least October 2016 of the cancellation issue, and his visa being “in jeopardy”, as set out in an email to him from his former agent[7]. He also received the notification from the Department of an intention to consider cancelling the visa in the Department’s letter dated 15 June 2017. The Tribunal finds it is satisfied the applicant was represented and had opportunity to obtain advice as to the consequences of the sponsor being cancelled or barred and cancellation of his own visa, and considerations that might be given to the changed circumstances.
[7] Tribunal file f 129
A significant period has elapsed continuing for over two years since the applicant lost his employment. The elapsed period must have some weight in consideration of whether the applicant’s visa might be cancelled. The significant delay shows a lack of positive steps taken by the applicant to rectify his visa status. The applicant was aware of the need to meet his visa obligations but the Tribunal finds that he chose to remain silent about his activity once the visa was cancelled.
Until just prior to the hearing in October 2018, the applicant has not communicated with the Department or the Tribunal either to provide information or respond to the notice advising him of the intention to cancel the visa. The applicant corresponded only when the Tribunal hearing was imminent. This delay whether intentional or not must carry some weight against the applicant in consideration of the cancellation.
In this instance, explaining his actions, the applicant gave evidence at the hearing that he thought things were in train through his agent. He had an expectation that the agent, after the applicant had received the notice, had responded to the Department, but without following up to see if that had actually occurred. Had he done so, the applicant may have become aware of the delay, and the need to take more responsible action. But in this Tribunal’s opinion, the failure to follow up with the agent and ask questions about his response to the Department and any reply, demonstrates a troubling lack of awareness and ignorance about the importance of compliance with Australia’s migration laws. In this period from December 2016 until October 2018, there is no evidence the applicant was able to procure other sponsored employment or to keep the Department informed or to instruct his agent as to what options might have been available to him at that time and to seek appropriate advice.
It is not sufficient to place all blame at the foot of the agent and when no further or other communication was attempted, and the Tribunal finds that the actions taken by the applicant following receipt of the notice of intended cancellation were inadequate. The applicant could have supplied details of all job applications, employer sponsors he was approaching and the replies, and evidence of all attempts to obtain a suitable alternative position in the same role and any time he needed and why, to do so reasonably, outside the 90 day period allowed. It was clear to the applicant he could not return to the previous employer, who was barred, so there was a level of urgency required which the Tribunal finds is not demonstrated on the facts. This must weigh against the applicant in terms of this review and the exercise of discretion.
Until the eve of the hearing on 26 October 2018, the applicant made no written submissions and provided no further information for consideration, despite being invited to do so. The Tribunal’s requests for information were contained in the Tribunal’s initial response to the application and letter dated 10 July 2017[8], and again on 17 July 2017[9], then more recently with the Tribunal’s hearing invitation sent by letter on 9 July 2018.[10] The Tribunal’s hearing invitation requested any additional documents or information be provided by 2 August 2018 and on 20 September 2018 requesting information be provided by 19 October 2018.The applicant responded formally with information by his new agent on 25 October 2018.
[8] T file f 8
[9] T file f 20
[10] T file ff 224-28

The applicant had earlier sent an email to the Tribunal about his medical condition on 24 August 2018 and pre-empting his formal responses. The email states:
“I have received and read your letter of this Monday, 20 August 2018. As the letter says about providing the evidences of my medical diagnosis, which is my blood pressure is normally very high around 150-160. My doctor has advised me to undergo a test combined 24 BP and Holter ECG from Douglas Hanley Moir pathology at 57 Dunmore Street, Wentworthville. This is only available on 29 August 2018 .I have made a booking if you want you can contact to them. This process will take 3 days .I have already sent that letter to you.
Another enquiry want clear is for 5 July 2017. When you say no response was received by me in regards of reply for cancellation of visa subclass 457. The statement I want to tell you a few things which I have documented and I’m going to send you the copies of that. For this case, I had hired a lawyer named Ejaz Khan. Whose office is Juris Australia Lawyers [address] now… Who has failed to respond to the enquiry made by immigration on my behalf. I have tried to tell immigration officer regarding this matter but they have sent me the email that the decision has been made and they are helpless on these grounds. I am happy to send you everything I have in records and feel very unwell though because of the circumstances made by my representatives by not replying at right time and has made me a sufferer.
I, hope the documents I am going to attach will help you to understand my case in better way... So, there is not a lack of communication. At last I thank you for providing me opportunity to speak for myself and feel little confident which I had already lost. Thanking you.”
The applicant attached to the email:
·    a statement (undated),
·    advice by a migration agent (Mr Khan) dated 26 June 2017 declaring the agent had been appointed;
·    letter from Juris Australia dated 30 June 2017;
·    Commonwealth Bank card receipt for $500;
·    Copy ASIC registration for Sukhi Pty Ltd;
·    direct debit payment to Juris
On 26 September 2018, the Tribunal was informed of the appointment of a new representative on behalf of the applicant.
In his attached statement, the applicant complains about his previous lawyer and migration consultant (Mr Khan). The applicant said he paid fees to the lawyer following receipt of the intention to consider the cancellation notice from the Department. The applicant said his understanding was the lawyer would respond to the Department on his behalf. He said he was shocked to hear this did not happen. The applicant however, gives no explanation why he did not follow up such an important matter with Mr Khan, but rather left it to him. The applicant says he subsequently refused to pay the representative more money, and stated that he was handed a refund “when he realised that he made mistake to make fraud with me”.
The applicant further states:
“I know it’s impossible to take decision back for you as cancel my visa, but if you can please give me opportunity to stay here in Australia and I can apply for another visa I have opportunity to file RSMS visa. I have been living in Australia for last 9 years.”
The Tribunal finds it is satisfied with the statements made orally at the hearing that the applicant did attempt to respond to the Department’s notice of intention to consider cancellation in July 2017, by his then representative, as set out above. The Tribunal is satisfied the representative did not respond as he had been directed. The applicant says he intended to inform the Department that he was seeking alternative employment. The Tribunal however finds that the applicant failed to follow up with the agent or provide any details of alternative sponsored employment. Even where the agent is partly responsible and must carry some responsibility for the events as they occur, the Tribunal is satisfied that the responsibility for the conduct of the matter must rest ultimately with the applicant himself. The Tribunal understands that the applicant may have legitimate claims against the agent for not acting appropriately, or negligently, and gives some weight to that fact in considering how to exercise the discretion. Ultimately it is a balancing act as to how that issue weighs up (the agent’s conduct) against the other factors being considered, including the applicant’s own considerable delay, the lack of communication and his inability to obtain a further successful nomination.
The Tribunal has had regard to a copy of a letter provided from Juris Australia, which contains 2 pages, one dated 30 June 2017 and page 2 dated 6 July 2017. There is no information before the Tribunal that the Department received that correspondence.
That letter confirmed the applicant’s circumstances that he had no current sponsor as a result of the cancellation in respect of Nanotek Technologies Pty Ltd, and apparent refusal of a later nomination application by Sukhi Pty Ltd (“Sukhi”) in February 2017. In his 24 October 2018 submissions, the applicant provided limited background to the nomination application by Sukhi, which had been refused by the Department on 4 February, 2017. The Tribunal asked about the application at the hearing. The applicant said that after October 2016, he was looking for work from friends and he was introduced to Sukhinder, who told him he was opening a restaurant. He said Sukhinder would sponsor him and sought sponsorship approval, which was refused in February 2017. He said the new restaurant did not proceed.
There was no clear evidence about what other steps the applicant took between February 2017 and October 2017, until he obtained work rights and commenced a job at Bathurst in December 2017, working as a part-time restaurant manager for Global, until June 2018.
The agent’s letter of 25 October 2018[11] gives a helpful chronological history from February 2016 to 21 September 2018 of the applicant’s activities. Between October 2016 and July 2017, the applicant was relying on his earlier agent who he says defrauded him. The applicant appointed a new agent on 7 July 2017, who lodged this review application. While awaiting the review, Global submitted a nomination application, which was refused on 12 October 2018. It has since proposed a further nomination application under the TSS scheme, and a 482 application on behalf of the applicant was lodged on 7 February 2019.
[11] DIBP file folio 106
Consideration
The Tribunal has some empathy for the applicant. There is no information before the Tribunal that the applicant was in any way complicit or participatory in the facts leading up to the sponsor’s cancellation. At the hearing, the applicant stated that he was told by the sponsor that it was having financial difficulties, including failing to pay the rent. The applicant said that he had arguments with his employer about being paid for a holiday, after he had returned to India from 18 August 2016 to 10 September 2016 for his brother’s wedding. The applicant said that he had no forewarning however as to the extent of the “financial problems”, and arrived at work one day in October 2016 to find the door locked and the landlord’s agent in possession of the premises. These were matters out of the control of the applicant who never returned to work for the sponsor.
It is unclear to the Tribunal why it is that the applicant failed to communicate directly with the Department and to advise of his changed circumstances, including moving to Bathurst and then his relocation back to Sydney. Although he did receive some advice from his then representatives, he also sought assistance from the Indian community which may have created further confusion for the applicant and a lack of diligence in dealing with the matter with the Department and then the Tribunal.
The Tribunal is satisfied otherwise that the applicant had complied with his visa obligations as at the date of his termination of employment in October 2016, and cancellation of the sponsorship in October 2016 by the Department, and that these were genuinely events beyond his control. The Tribunal places some weight on those matters in the applicant’s favour.
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The applicant states that he travelled to Australia to further his education. After arriving in Australia he enrolled in courses in hospitality management first at Bankstown and then at Parramatta in Sydney, worked part-time while studying in the period from 2008 until 2015 then commenced work with his sponsor on the 457 visa.
The applicant had commenced an accounting course in 2014 which he did not complete in preference to commencing full-time work. The applicant now states that his preference is to remain in Australia and continue to work in his chosen occupation. Other than as a matter of personal choice, the applicant has not presented any other compelling need to remain in Australia, and the Tribunal places little weight on this consideration.
Past and present behaviour of the visa holder towards the Department
The Tribunal is not aware of any matters prior to the events giving rise to the cancellation concerning the applicant and the Department. The Tribunal finds it is satisfied that up until the cancellation of the sponsorship in October 2016, the applicant himself had complied with his visa conditions.
Since October 2016, the applicant has been aware of the need for him to find suitable alternative employment by an authorized sponsor. Notwithstanding recent events referred to below, there is no evidence before the Tribunal that the applicant has been successful in that regard. The applicant kept silent for a period of two years until the eve of the Tribunal hearing in October 2018 about his activities. Whether this was due to his agent or his own behaviour or through ignorance, the applicant must bear responsibility and the Tribunal finds that his lack of communication and delay and inability to secure work with a successful nomination in play, must weigh against him in terms of the exercise of discretion.
The Tribunal accepts that the applicant desires to remain in Australia, but is mindful also of the importance of maintaining the integrity of the sponsorship system, which relies upon commitments made both by sponsors and visa-holders for nominated occupations and employment. If a business sponsor fails to meet its obligations, it is inevitable that the visa-holder will also suffer from the failure of the business sponsor, and the outcomes are interdependent in that regard. It would not be reasonable to disregard or overlook the sponsor’s failure in this instance, merely because that event may adversely affect the applicant.
Other relevant circumstances - Consideration
The Tribunal is satisfied there are no other persons in Australia who’s visa would or may be cancelled under section 140 of the Act and the Tribunal gives no weight to this consideration.
The Tribunal further finds that there is nothing adverse known about the applicant’s past or present conduct towards the Department, save for the matters referred to above in relation to the applicant’s conduct since the cancellation of the sponsorship and the visa issue arose.
The Tribunal is satisfied that the applicant will have an opportunity to depart Australia in an orderly fashion and without the risk of detention, provided he complies with his bridging visa. The Tribunal accepts that the applicant may face some hardship if the cancellation decision is affirmed.
The Tribunal notes that the applicant is a young man, has some experience now in Australia as a restaurant manager and is well qualified for the role both in Australia and in India. There is no evidence before the Tribunal that the applicant will be unable to find suitable alternative work upon departing Australia.
It was always the case that the applicant on a temporary 457 skill-shortage visa was going to have to consider returning to his country of origin when the visa expired, absent any further substantive visa opportunity or expectation. The Tribunal is not aware of any international obligation which would be breached as a result of the cancellation of the applicant’s visa.
The applicant has no relatives in Australia, is a single man and needs only to support himself. There is no reason given why he could not return to India and there is no evidence of any personal hardship which might be caused by his return. The Tribunal finds that these factors weigh against the exercise of discretion in the applicant’s favour.
The applicant did not make any forceful submissions about hardship or the effect upon him of the cancellation decision, other than the obvious inference that it is his desire to remain in Australia and to continue to look for job opportunities for which he may become suitable. The Tribunal places little weight on these considerations. The temporary skill shortage scheme is not an opportunity simply to seek employment that might become available, but rather designed to enable existing positions to be filled in the short term, for which suitable Australians are not available.
The 457 visa program has now ceased to operate and since 1 March 2018, the temporary skill shortage subclass 482 (TSS) program has replaced it. The Tribunal is mindful that as a consequence of the visa cancellation, the applicant will no longer be able to apply under the 457 program. The 457 visa held by the applicant was due to expire on 12 August 2017, but for the cancellation. As a result, the Tribunal is satisfied that even were the cancellation revoked, the applicant would not have a visa.
There is no evidence before the Tribunal that the applicant would be eligible for a further substantive visa under the TSS program. At the time of decision, the applicant is not the subject of a further approved nomination or visa application.
Since the hearing, the applicant has provided the following further information:
·     The applicant by his agent is seeking nomination by an approved sponsor for a TSS 482 visa.
·     A TSS nomination application by Global was refused by the Department on 12 October 2018. The decision was refused on the basis the sponsor did not satisfy the labour market testing conditions under section 140 GBA of the Act.
·     The sponsor has sought to submit a further nomination application after complying with the required labour market testing provisions which are mandatory.
·     The proposed nomination application cannot be lodged until the sponsor has complied with the advertising requirements.
·     The applicant cannot apply for a 482 visa without a successful nomination on his behalf.
·     The timing in respect of a further nomination application and then visa application on behalf of the applicant is not known.
Following the hearing, the Tribunal granted an extension of time to the applicant until 14 December 2018 to enable the applicant consideration of a further nomination application.
On 14 December 2018, the applicant’s agent requested a further extension of time to enable a new nomination to be lodged “pending due to the mandatory requirement of labour market testing”. The request was to extend the time for the applicant to provide information and for the Tribunal to finalise the matter to 31 January 2019. The Tribunal granted the request.
On 31 January 2019, the applicant’s agent made a further request that time be extended until Friday, 8 February 2019 “to provide evidence of lodgement”.
The Tribunal considered the applicant’s request for a further extension of time. On 6 February 2019, a tribunal officer contacted the agent for the applicant to advise him the further request for an extension of time was refused. The Tribunal officer informed the agent that as the time for the provision of information had now passed (6 February 2019), the Tribunal would proceed to finalise the decision.
As at the time of decision, and taking into account the further extensions of time from 26 October 2018 until 6 February 2019, the Tribunal finds that those extensions of time have not resulted in a nomination approved by the Department in favour of the applicant. The timeframe for completion of any current application under consideration is not known.
The Tribunal finds it is satisfied there is no evidence before it of the likelihood of an approved nomination in favour of the applicant within a reasonable period, or evidence as to the likely outcome of a further nomination application or eligibility for an application for a 482 visa under the TSS program.
The Tribunal further considers that the history of previous applications does not assist in that consideration, as two previous applications, one by a proposed sponsor Sukhi Pty Ltd was refused on 4 February 2017 and the most recent being a nomination application by Global was refused by the Department on 12 October 2018. The Tribunal is satisfied that there is no approved nomination by an approved sponsor which is “likely to be forthcoming” in the foreseeable future.[12]
[12] See also Minister for Immigration and Border Protection v Haq [2019] FCAFC 7 (Haq’s case)
The Tribunal finds it is not required to delay its decision indefinitely and for an uncertain period, while the applicant attempts to provide evidence of a sufficient nomination application to justify further delay. The uncertainty surrounding the current 482 application lodged by the applicant after expiry of several time extensions by the Tribunal does not persuade the Tribunal that further time should be granted, some three months having already elapsed since the hearing, and a period in excess of two years elapsed since the sponsor’s cancellation.
The Tribunal finds there are no other relevant matters or circumstances for consideration.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Alan McMurran
Member

[2019] AATA 450

14 February 2019

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