Sidhu (Migration)

[2021] AATA 569

Sidhu (Migration) [2021] AATA 569 (29 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sukhdev Kaur Sidhu
Mr Inderjit Singh Toor

CASE NUMBER:  1936358

HOME AFFAIRS REFERENCE(S):          BCC2019/2491896

MEMBER:L. Hawas

DATE:  29 January 2021

PLACE OF DECISION:  Melbourne

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

The Tribunal does not have any jurisdiction with respect to the second applicant.

Statement made on 29 January 2021 at 5:42pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Hairdresser – ground for cancellation – ceased employment with sponsor – date on which employment ceased – consideration of discretion – purpose of visa grant – unsuccessful in securing a new nomination – COVID-19 related restrictions and business shutdowns – circumstances in which ground of cancellation arose – business restructure – sponsor ceased trading – beyond the applicant’s control – best interests of the child – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140

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

Introduction

1. The first applicant (hereinafter referred to as the applicant) is a 33 year old woman from India.[1] She came to Australia with her husband (the second applicant) in September 2009 on a student visa.[2] On 22 June 2016, the Department of Immigration and Border Protection granted the applicant a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa for four years to 22 June 2020.[3] By written decision dated 16 December 2019, a delegate of the Minister for the Department of Home Affairs cancelled the applicant’s visa. By this application, the applicant seeks a review of that decision. The applicant gave the Tribunal a copy of the delegate’s decision at the time she applied for this review.

   [1] The applicant was born on 6 August 1987. See delegate’s decision dated 16 December 2019 at p. 1.

   [2] Applicant’s oral evidence at the hearing on 26 November 2020.

   [3] Delegate’s decision at p. 1.

2. The delegate cancelled the applicant’s visa under s.116(1)(b) of the Migration Act 1958 (Act) on the ground that she did not comply with condition 8107(3)(b) of her visa. That condition provided that if the applicant ceased employment with her sponsoring employer the period during which the applicant ceases employment must not exceed 90 consecutive days. The delegate found that the applicant ceased employment with her sponsoring employer effective on 15 May 2018 due to the closure of the employer’s business, and that she ceased that employment for more than 90 consecutive days in breach of condition 8107(3)(b). [4] The delegate then proceeded to cancel the applicant’s visa. As a consequence, the second applicant’s visa was cancelled under s.140(1) of the Act.

   [4] Delegate’s decision at p. 2.

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

4. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision before the Tribunal is the decision cancelling the applicant’s visa. The second applicant’s visa was automatically cancelled as a consequence of the applicant’s visa cancellation. Accordingly, the second applicant’s visa was not cancelled by decision but by force of the operation of s.140(1) of the Act. The cancellation of that visa was self-executing on the cancellation of the applicant’s: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the cancellation of the second applicant’s visa under s.140(1), the Tribunal has no jurisdiction with respect to it.

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

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

Procedural matters

1. The applicant appeared before the Tribunal on 26 November 2020 to give evidence and present arguments. The hearing was held during the COVID-19 pandemic. The Tribunal exercised its discretion to hold the hearing by video conference (Microsoft Teams). The Tribunal determined it was reasonable to hold a hearing by video conference having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick. The hearing of the matter would have been delayed if it was not conducted by video conference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments at the hearing.

2. On 20 November 2020, the Tribunal received a letter from the applicant containing her written submissions. The Tribunal has considered the applicant’s written submissions.

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

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

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

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

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

   (a)The applicant was granted her 457 visa on 22 June 2016. The term of the visa was four years. Had the delegate not cancelled the visa, the term of the visa would have expired on 22 June 2020.[6] The standard business sponsor who nominated the applicant for that visa was Shree Akshar Pty Ltd (Shree Akshar);[7]

   [6] Delegate’s decision at p. 1

   [7] Delegate’s decision at p. 2 and applicant’s evidence at the hearing.

   (b)The principal of Shree Akshar was a gentleman by the name of Hinalkumar Patel (Patel). Shree Akshar owned and operated two men’s and women’s hairdressing salons; one in Tottenham and one in Dandenong, both being suburbs of Melbourne. The applicant commenced work as a hairdresser with Shree Akshar in January 2017. She worked at Shree Akshar’s Dandenong salon. The applicant had a normal relationship with Patel – he was a “good man”;[8]

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

   (c)Sometime in April or May 2018 (but more likely April 2018), Patel told the applicant that his hairdressing business was not doing well and he had to close it. He said he was looking to re-open the business later. He told the applicant that she should not return to work until he called her and asked her to return. Shortly after this time, the applicant received a “letter from the government” (which is not before the Tribunal) about Shree Akshar’s business being closed down. Subsequently, she went to the Dandenong salon and saw that it was closed – it was not trading;[9]

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

   (d)As far as the applicant can recall, her last day at work for Shree Akshar was sometime in April 2018;[10]

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

   (e)After her last day at work, the applicant called Patel on several occasions and asked him when she could return to work. Patel told the applicant that she should just wait and that he was looking to re-open his business soon. Patel never called the applicant and gave her a date to return to work. As far as the applicant knows, Patel did not re-open his hairdressing business;[11]

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

   (f)Eventually, the applicant gave up on trying to return to work with Shree Akshar. She searched for work by responding to advertisements for hairdressers and asking for work at the hairdressing salons near the area in which she lived. She was not able to find work as a hairdresser, and she was not able to locate a new sponsoring employer within 90 days of her last day at work for Shree Akshar;[12]

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

   (g)In the cancellation decision, the delegate found that – “The sponsor notified the Department that the visa holder ceased her employment with them as at 15 May 2018 as the business ceased trading”;[13]

   [13] Delegate’s decision at p.3.

   (h)The notification to which the delegate referred in the cancellation decision was contained in a letter dated 21 April 2019 that Shree Akshar’s migration agent sent to the Australian Border Force in response to a Notice of Intention to Take Action from Border Force dated 15 April 2019. From the migration agent’s letter to Border Force, it appeared that Border Force alleged (in the Notice of Intention to Take Action) that Shree Akshar no longer met the prescribed criteria under r. 2.59 of the Migration Regulations 1994 (Regulations) for approval as a standard business sponsor because the company no longer lawfully operated a business as required by the regulation. The Notice of Intention to Take Action sought comment from Shree Akshar. In its 21 April 2019 letter in response, Shree Akshar stated:

   (i)Shree Akshar closed its operations on 15 May 2018 because Patel’s son was suffering from health problems, which interfered with Patel’s ability manage the business properly; and

   (ii)“Sponsored has recently reported notification of sponsorship changes in relation to termination of employments of sponsored staff to the Department and AAT:

   a.    Sukhdev Kaur Sidhu: Her employment has been terminated due to closure of business (sic).”[14]

   [14] Letter from Shree Akshar’s migration agent to the Australian Border Force dated 21 April 2019 on the department’s file. Note that the Tribunal has not received any communication from Shree Akshar specifically in relation to this review. Any communication with the Tribunal as referred to in the 21 April 2019 letter may have been in relation to separate reviews in this Tribunal that relate to Shree Akshar – see cases 1807168 and 1813947.

   (i)Border Force then passed on to the Department for Home Affairs the letter from Shree Akshar’s migration agent dated 21 April 2019;[15]

   (j)A delegate for the minister of the Department of Home Affairs sent the applicant a notice of intention to consider cancellation of visa dated 15 November 2019. In the notice, the delegate stated that it had been advised by Shree Akshar that the applicant ceased employment with it effective 15 May 2018 due to the closure of Shree Akshar’s business, and that appeared to constitute a ground to cancel the applicant’s 457 visa under s. 116(1)(b) of the Act for breach of condition 8107(3)(b). In the notice, the department asked the applicant to comment on that ground for cancellation;[16]

   (k)The applicant responded by an undated letter. In that letter the applicant stated:

   “I wish to state that I have been greatly victimised here due to sponsor’s deception and deceit. The owner of the business had advised me that he had bought new sites for expanding and operating of the business. In reality, however, he was not honest and withheld crucial information. He did not tell the truth about the scope of the operations of the business.

   Once I had got to know that owner’s trickery, I decided not to proceed with that business. All due to my hard work and perseverance, I have a new sponsor who is willing to abide by the regulations and protocols in a truthful and just manner. I will proceed with lodging a new file through the new sponsor well (sic);[17]

   (l)In her letter to the Tribunal on 20 November 2020 containing her submissions, the applicant stated:

   “Shree Akshar Pty Ltd had been my standard business sponsor who nominated me in the most recently approved nomination for the visa. This nomination was approved on 01 December 2016. I was granted the Temporary Work (Skilled) (subclass 457) visa on 22 June 2016 for the purpose of undertaking employment in the nominated occupation – Hairdresser (ANZSCO 391111) with the approved sponsor – Shree Akshar Pty Ltd. However, due to unforeseen circumstances, they closed their business and my employment with them also came to an abrupt end. The cessation of my employment was notified to the Department of the effective15 May 2018 due to closure of the business (sic).”

   (m)The applicant accepted that she knew it was a condition of her visa that she could not cease employment with Shree Akshar for more than 90 consecutive days;[18] and

   (n)The applicant has not located a new sponsoring employer who has applied to sponsor her for a visa.[19]

   [15] Email from Australian Border Force representative to General Cancellations Network in the Department of Home Affairs on 10 May 2019 attaching the letter from Shri Akshar’s migration agent dated 21 April 2019 (and attachments).

   [16] The notice of intention to consider cancellation dated 15 November 2019 is on the department’s file.

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

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

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

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

5. As set out in paragraph 11(d) above, at the hearing the applicant said that her last day at work for Shree Akshar was in April or May 2018 (more likely April) after Patel told her not to return to work until he asked her back. However, it does not necessarily follow that the applicant ceased employment with Shree Akshar on her last working day. The effect of the evidence before the Tribunal on this point (that is evidence the applicant had given the department and then the Tribunal directly) was that Patel told the applicant that he sought to restructure his business. He asked the applicant not to return to work until he had completed that restructure, opened new or different salons, and he had notified the applicant when she could return to work in the restructured or new business. On that evidence, it is not clear to the Tribunal whether by his instruction to the applicant Patel notified the applicant of termination of her employment with Shree Akshar with her employment to resume later (either with Shree Akshar or a new employer), or whether he placed the applicant on unpaid leave pending Shree Akshar re-ordering its business. On balance, the Tribunal finds that the applicant’s employment with Shree Akshar did not cease on the applicant’s last day of work in April 2018. By that time, on the evidence, Shree Akshar had not notified the applicant (nor anybody else) clearly that her employment had been terminated or had ceased, and the applicant did not say that she considered her employment to have ended on the completion of her last day at work. At that time, the status of the applicant’s employment with Shree Akshar was uncertain.

6. But come 21 April 2019, on the evidence before the Tribunal, Shree Akshar had clarified its position on the applicant’s employment. As set out in in paragraphs 11(g) to (i) above, on that date, Shree Akshar notified Border Force (who in turn notified the department) that the applicant’s employment was terminated on 15 May 2018 when Shree Akshar closed its business.

7. The applicant’s employment with Shree Akshar having ceased come 15 May 2018 is consistent with the applicant’s evidence to the Tribunal. At the hearing, the applicant said that after her last day at work, she called Patel several times and asked him for a date on which she could return. Patel never advised her of such a date and never asked her to return to work. After her last day at work, the applicant visited Shree Akshar’s Dandenong salon and saw it was closed. Eventually, she gave up trying to return to work for Shree Akshar and began looking for a new sponsoring employer. It is not clear from the applicant’s oral evidence at the hearing whether she gave up on returning to work before or after 15 May 2018 when, as far as Shree Akshar was concerned, the applicant was no longer employed. The applicant’s oral evidence on the sequence of events and their timing was vague. The evidence set out in her letter to the Tribunal on 20 November 2020 was clearer on the point. There she stated that her employment came to an end when Shree Akshar closed its business.

8. Accordingly, on the evidence before the Tribunal, it finds that come 15 May 2018, the applicant’s employment with Shree Akshar had ceased. For the purpose of this review, it is not necessary to identify the precise date when the applicant’s employment with Shree Akshar ceased. The Tribunal is prepared to take the date as being the latest date the applicant’s employment could have ceased, which on the evidence before it is 15 May 2018. The applicant did not resume employment with Shree Akshar (or any other employer) within 90 consecutive days following her employment ceasing. On those grounds, the Tribunal finds that the applicant breached condition 8107(3)(b) of her visa and that the ground to cancel her visa under s. 116(1)(b) of the Act has been made out.

9. The Tribunal considers the applicant’s breach of condition 8107(3)(b) of her visa to be serious. After ceasing work with Shree Akshar, she was not able to secure another application to nominate her for a visa. The Tribunal returns to that below. 

Consideration of the discretion to cancel the applicant’s visa

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

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

1. At the hearing, the applicant said that:

   (a)She came to Australia on a student visa with her husband (the second applicant) in September 2009;

   (b)At first, she completed an English course before commencing study for a Diploma in Hairdressing at the Carrick Institute in Melbourne at the beginning of 2010. She graduated with her Diploma in 2013;

   (c)Then she studied for a Diploma of Management and then a Diploma of Business at the St Stephen Institute of Technology in Reservoir, being a suburb in Northern Melbourne. She graduated with the Diploma of Management in 2014 and the Diploma of Business in 2015;

   (d)Then she was granted her 457 visa on 22 June 2016;

   (d)She has two infant children (one boy and one girl) with her husband. They were born in Australia. But they are currently living in India with the second applicant’s parents. The applicant took them to India in 2015 and they have lived there ever since;

   (e)She chose not to include her children as secondary applicants for 457 visa. She hoped to obtain permanent residency in Australia after working here on a 457 visa for two years. She hoped then to bring her children to Australia as permanent residents;

   (f)She wants to remain in Australia to locate a new employer that will sponsor her for a visa, which search has to date been unsuccessful. She wants to remain in Australia to work as a hairdresser. Ultimately, she wants to obtain permanent residency in Australia for herself and her family. The family will have a better future in Australia than in India. She is doing what she can to remain in Australia in the hope she will ultimately obtain permanent residency; and

   (g)If she must return to India with her husband, they could live there with their children without too much difficulty. But she would prefer for the family to live in Australia given the higher standard of living and the improved future career opportunities, especially for the children.     

1. In her letter to the department in response to the notice of intention to consider cancellation of her visa, the applicant stated that she had located a new sponsor, and that she would proceed to “lodge a new file through the new sponsor as well”.[20] The Tribunal understands that statement to mean that the applicant would be arranging for a new employer to sponsor her for a visa. A new employer is yet to apply to sponsor the applicant.

   [20] See paragraph 11(k) above.

2. In her letter to the Tribunal on 20 November 2020, the applicant referred to the COVID-19 pandemic, the resulting restrictions and business shutdowns, and the effect on her. The applicant stated that the COVID-19 pandemic hampered her search for a new sponsoring employer. She stated that the effects of the pandemic and the consequent interference with her ability to locate work has left her “emotionally disturbed and financially constrained”. Presumably, the applicant was referring to the recent COVID-19 related restrictions and business shutdowns in Victoria. The applicant also stated that she has extensive qualifications and experience in hairdressing. The effect of her submission was that she wants to remain in Australia where she can deploy those qualifications and experience and Australian employers can benefit from them.

3. In the cancellation decision, the delegate stated that the applicant lodged an application for a Student (subclass 500) visa on 15 May 2019, which was refused on 26 July 2019. Subsequently, the applicant applied to this Tribunal for a review of that decision.[21] At the hearing, the applicant said that after ceasing work for Shree Akshar, on advice, she applied for a student visa and the application was refused. The applicant said that she applied to this Tribunal for a review of the decision to refuse her a student visa, and after a hearing before the Tribunal, the review did not succeed. The applicant’s evidence on this matter was vague.

   [21] Delegate’s decision at p. 3.

4. The Tribunal’s records reveal that the applicants to this application (as well as the applicants’ two children) applied to this Tribunal for a review of a decision of a delegate of the Minister for Home Affairs made on 15 July 2019 to refuse to grant them Student (Temporary) (Class TU) visas. The applicants applied for those visas on 15 May 2019. By written decision of this Tribunal (differently constituted) dated 22 October 2020, the Tribunal affirmed the delegate’s decision not to grant those visas.[22]

   [22] Decision in Tribunal case No. 1920493 dated 22 October 2020.

5. A 457 visa is a temporary visa that provides for skilled people (and their immediate families) to come to Australia to work for an approved employer for up to four years. The visa operated on the premise that it would not undermine job opportunities for Australians. The 457 scheme allowed visa holders to fill roles where there was a genuine skills shortage or, in effect, where a suitably qualified Australian worker is not available.[23]

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

   The applicant’s stay in Australia on her 457 visa was for the purpose of working for Shree Akshar as a hairdresser to fill a need that employer had for a hairdresser, which it could not fill with a suitably qualified Australian worker. When the applicant ceased her employment with Shree Akshar on 15 May 2018, given condition 8107(3)(b) of her visa, she effectively had 90 days to locate another sponsoring employer in order to remain within the conditions of her visa. The applicant was not able to locate another sponsoring employer within 90 days, after which she fell into breach of condition 8107(3)(b). From that point, the applicant’s continued stay in Australia on her 457 visa was in tension with the purpose of that visa.

6. Despite searching for a new sponsoring employer after her employment with Shree Akshar ceased on or 15 May 2018, the applicant has not to date been able to secure a new nomination. Although condition 8107(3)(b) of the applicant’s 457 visa contemplated that she would have some time (90 days) to locate a new sponsoring employer after her employment ceased, it did not contemplate the applicant remaining in Australia for such an extended period – now well over two years – to search for work. That purpose (extended search for work) is not consistent with the purpose of the applicant’s visa.

7. The applicant’s wish to remain in Australia even longer now to locate a new sponsoring employer ultimately counts against her in this review. Again, that is not consistent with the purpose of her 457 visa. The applicant has now had a reasonable opportunity to locate a new sponsoring employer in Australia.

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

   (a)The seriousness of the applicant’s breach of condition 8107(3)(b) of her visa – the applicant ceased employment with Shree Akshar on 15 May 2018 and has not to date secured a new nomination application;

   (b)The applicant has now had a reasonable opportunity to secure a new nomination but has not been successful; and

   (c)The applicant’s wish to remain in Australia further to search for a new sponsoring employer is not consistent with the purpose of her 457 visa.

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

10. The Tribunal has considered the applicant’s claim that her search for a new sponsoring employer was hampered by the COVID-19 pandemic and the resulting business shutdowns and interruptions in Victoria. The Tribunal accepts that those matters hampered the applicant’s search for a new employer and it weighs that against exercising its discretion to cancel the applicant’s visa. But the weight the Tribunal places on that matter is limited. The COVID-19 induced business shutdowns and interruptions did not commence until about March 2020. By that time, the applicant had been in Australia searching for a new sponsoring employer after ceasing her employment with Shree Akshar on 15 May 2018 for a little less than two years without success. The applicant had a reasonable opportunity to locate a new sponsoring employer without interference from COVID-19.

11. Given the applicant applied for a student visa after she ceased employment with Shri Akshar that was refused, and this Tribunal affirmed that refusal, it could be inferred that the applicant wishes to remain in Australia to study. Remaining in Australia for that purpose is not consistent with the purpose of her 457 visa. Ordinarily, that would weigh in favour of cancelling the applicant’s visa. But for the purpose of this review, the Tribunal does not infer that the applicant wishes to remain in Australia to study, and it does not weigh that in favour of exercising its discretion to cancel the applicant’s 457 visa. In this review, the applicant did not tell the Tribunal that she wished to remain in Australia to study. Her evidence to the Tribunal at the hearing about her student visa application (and application for review) was put in the context of her battle to remain in Australia. The effect of her evidence was that she applied for the student visa and pursued a review because a student visa would allow her to remain in Australia, at least in the short to medium term. The Tribunal considers those matters to be neutral to this review.  

12. Under this purpose-of-the-457-visa head, the Tribunal has weighed the matters set out in paragraph 28 above heavily in favour of exercising its discretion to cancel the applicant’s 457 visa. The Tribunal has weighed the matters set out in paragraphs 29 and 30 against exercising its discretion to cancel the visa. Those matters mitigate the weight the Tribunal places on the matters in paragraph 28 above but do not outweigh them entirely.

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

The extent of compliance with visa conditions

1. Other than the applicant’s breach of condition 8107(3)(b) of her visa in issue, she has not breached any other condition of her visa. The Tribunal has weighed that against exercising its discretion to cancel the applicant’s visa.

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

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

2. The applicant claims she will suffer the following instances of hardship if her visa is cancelled and she must return to India with her husband:

   (a)She has been in Australia with her husband for about 12 years and they have become accustomed to life here. Her dream is to live in Australia as a permanent resident with her family. Australia has a better standard or living than India, and will offer the family more economic opportunities and a better long term future than will India. The applicant is especially anxious for her children to live in Australia given the opportunities for them here;[24] and

   (b)She is currently working in a restaurant at a BP roadhouse in Laverton.[25] She commenced work there in March 2020. That was her first job after ceasing employment with Shree Akshar. The second applicant is currently working casually for a refrigerated and frozen foods producer.[26]

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

   [25] This employer has not applied to nominate the applicant for a visa.

   [26] Applicant’s oral evidence at the hearing. The applicant’s bridging visa E, upon which she is currently in Australia, carries work rights.

3. The Tribunal accepts that the applicant and her family will suffer the claimed instances of hardship if her visa is cancelled and she is required to return to India with her husband (where she will be reunited with her children). The Tribunal accepts that the applicant and her husband will encounter some hardship readjusting to life in India after 12 years in Australia. The applicant and her husband would have established a network of friends in Australia and other ties to the country in that time. The Tribunal also accepts that the applicant and her husband leaving their current jobs in Australia and returning to India will visit some hardship on them because they might not be able to find jobs quickly in India, and even if they do, the jobs might not be as well remunerated. That is compounded by the current COVID-19 pandemic, which can only interfere with the applicant’s attempts to find work. The Tribunal also accepts that, in the longer term, the applicant and her husband (and their children) will have less economic opportunities in India than they will in Australia. The Tribunal weighs those matters against exercising its discretion to cancel the applicant’s visa.

4. In her written submissions to the Tribunal of 20 November 2020, the applicant referred to COVID-19 interfering with her ability to find work in Australia. As the pandemic is global and ongoing, it stands to reason that the applicant and her husband will also encounter interference from COVID-19 when searching for work in India. That could visit hardship on the applicant and her husband. The Tribunal also weighs that against cancellation.  

5. But the applicant is 33 years old. The second applicant is 43 years old.[27] The Tribunal considers that although having to re-adjust to life in India will entail some challenges for the applicant and her family, they will still be able to re-establish their lives in India. The applicant and her husband are young. That will be in their favour when seeking to re-establish their careers.  The applicant’s Australian qualifications will also assist her in establishing her career. In relation to the applicant’s children, they are still infants. They have been living in India since 2015, so they will not need to re-adjust to India. They are young enough to establish careers and lives in India.[28] In relation to COVID-19, whilst it is true that it will interfere with the applicant and her husband finding work in India, the applicant has also suffered (and will continue to suffer if she remains) interference with her job search in Australia by reason of the pandemic; it is global. Those matters mitigate the weight the Tribunal places on the applicant’s hardship claims.

   [27] According to the Tribunal’s records, the second applicant was born on 15 December 1977.

   [28] The position of the applicant’s children is referred to further in paragraph 53 to 56 below.

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

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

1. The applicant claims she ceased employment with Shree Akshar in the circumstances set out in paragraphs 11(c) to (f) and (k) above.

2. The applicant’s employment ceased because Shree Akshar closed down its business. Plainly, that was beyond her control. The Tribunal accepts that Patel told, or represented to, the applicant that he would re-open a business that would re-employ her or employ her afresh. The Tribunal also accepts that Patel ignored the applicant’s requests to return to work; he never asked her to return or gave her a return date despite saying he would. The Tribunal does not go as far as finding that Patel victimised the applicant or engaged in deception and deceit in his dealings with her relating to her ongoing employment with Shree Akshar (as the applicant claims). The Tribunal does not have sufficient evidence before it to make such serious findings. But the Tribunal accepts that Patel engaged in some level of obfuscation and misrepresentation in what he told the applicant about her ongoing employment in April 2018. All of those circumstances, in which the applicant ceased work, were beyond her control. The Tribunal weighs all of those matters against exercising its discretion to cancel the applicant’s visa.

3. The Tribunal also accepts that the applicant promptly began searching for a new sponsoring employer after her employment with Shree Akshar ceased in May 2018. The applicant did not submit to the Tribunal any written evidence of her search for a new employer. But although the applicant was a little vague on some matters during the hearing, the Tribunal observed the applicant to be essentially an honest witness. The Tribunal is prepared to accept the applicant’s claim at face value. It weighs this claim against exercising its discretion to cancel the applicant’s visa.

Past and present behaviour towards the Department   

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

Whether there would be consequential cancellations under s. 140

1. The second applicant’s visa was cancelled consequentially because of the cancellation of the applicant’s visa. There is no evidence that the cancellation of the applicant’s visa would result in the separation of the applicant from the second applicant or the breakup of the family. The applicant’s children already live in India, so if she returns to India with her husband they will be reunited with their children. Accordingly, this consideration is neutral. In relation to any hardship on the second applicant by reason of the applicant’s visa cancellation, the Tribunal has considered that in paragraphs 35 to 40 above.

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

1. In the cancellation decision, the delegate noted that the applicant was granted a bridging visa A upon the lodgement of her application for a student visa.[29] As stated in paragraph 23 above, the application to this Tribunal to review the decision to refuse that visa has now been determined, and the applicant’s bridging visa A has ceased.[30]

   [29] Delegate’s decision at p. 4.

   [30] Department’s records in ICSE.

2. The applicant was granted a bridging visa E (subclass 050) on 10 January 2020. That was three weeks or so after the delegate cancelled the applicant’s 457 visa on 16 December 2019. That bridging visa subsequently ceased. She was then granted another bridging visa E on 4 June 2020 and then another on 21 January 2021.[31] She is currently in Australia lawfully on the last of those visas.  

   [31] Departments records in ICSE.

3. If the applicant’s current bridging visa E ceases on the Tribunal affirming the delegate’s decision to cancel the applicant’s 457 visa, in the absence of the Minister granting the applicant another visa, she will not have authority to remain in Australia. If that is the case, the applicant and her husband will have the opportunity to depart Australia. Whilst her continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision. Nevertheless, the Tribunal has weighed that possibility against its discretion to cancel the applicant’s visa.

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

5. The Tribunal agrees with the delegate’s finding that the cancellation of the applicant’s visa will not attract the application of Public Interest Criteria 4013 (PIC 4013).[32] The cancellation of the applicant’s visa will not attract the risk factors set out in that PIC 4013 necessary to invoke its application.

   [32] Delegate’s decision at p. 4.

6. The Tribunal has considered the potential impact of PIC 4014 on the applicant. That public interest criteria provides that a visa holder will be affected by a risk factor if the person left Australia as an unlawful non-citizen or the holder of certain bridging visas including a bridging visa E. The risk factor will not operate if the visa holder left Australia within 28 days after the substantive visa ceased to be in effect or while on a bridging visa granted within 28 days after the substantive visa ceased to be in effect. If it applies, PIC 4014 will effectively bar the visa-holder from obtaining another visa unless the application is made more than three years after the person left Australia or, if the application is made within three years after departure, there are compelling circumstances affecting Australia, or compassionate or compelling circumstances affecting the interests of an Australian resident, justifying the grant of a visa within three years.

1. Because the applicant was granted a bridging visa E on 10 January 2020, being within 28 days of 19 December 2019 when the delegate cancelled the applicant’s 457 visa, and she has been in Australia since visa cancellation on bridging visas as set out in paragraph 47 above, it appears that, as things presently stand, the applicant will not be affected by the relevant risk factors and will not be impacted by PIC 4014.  If that is correct, it has a neutral impact on this review. But the Tribunal acknowledges that, depending on what happens between the date of this decision and when the applicant leaves Australia, PIC 4014 could be invoked and the applicant could be impacted by it. The Tribunal approaches the matter on the grounds that PIC 4014 could be invoked at the time the applicant leaves Australia. In that event, the applicant will not be able to obtain a visa from offshore within three years of leaving. If she subsequently wants to return on another visa within three years of leaving, the Tribunal has considered the possibility that the applicant will not be able to make out the necessary compelling or compassionate circumstances justifying a visa grant in order to obtain a visa in those circumstances. The Tribunal has weighed those matters in the applicant’s favour; it has weighed them against exercising its discretion to cancel the applicant’s 457 visa.

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

1. The Tribunal has considered Australia’s international obligations under the United Nations Convention on the rights of the Child (CROC).

2. Article 3 of the convention provides that the best interests of the child shall be a primary consideration in any action concerning children by administrative authorities. Accordingly, in this review, the Tribunal has treated the best interests of the applicant’s children as a primary consideration even though they are not in Australia.

3. At the hearing the applicant said that she wanted ultimately to live in Australia with her husband and children as permanent residents because Australia has a better standard of living than India and the future career opportunities available here that are not available in India (especially for the children). She said that if she were required to return to India with her husband they would be reunited with their children. She said that her family (reunited again) could all live in India without too much difficulty but she preferred to live in Australia with her family for the better standard of living and future opportunities.

4. Given that evidence and given that the applicant’s children have been in India since 2015, the Tribunal considers that the cancellation of the applicant’s 457 visa will not place Australia in breach of its obligations under the CROC. If the applicant returns to India with her husband, the family will be reunited and they will be able to resume their lives together in India (despite the applicant’s preference for the family to live in Australia for the reasons she cited). Although cancellation of the applicant’s visa will mean that the children will not be able to return to Australia as permanent residents consequent upon the applicant transitioning from a 457 visa to permanent residency (as the applicant had hoped), the Tribunal does not consider that to detrimentally affect the interests of the children in a way that would place Australia in breach of its obligations under the CROC. The Tribunal considers this matter to have a neutral effect on this review.

5. Otherwise, on the evidence before the Tribunal, Australia’s international obligations are not engaged by the cancellation of the applicant’s visa.

Other relevant matters

1. The Tribunal notes that the travel restrictions currently being applied by countries around the world because of the COVID-19 pandemic might impede the applicant and her husband from returning to India. While the applicant and her family, as holders of temporary visas, are not prevented from leaving Australia they might be subject to international border restrictions in India preventing their re-entry.[33] The Tribunal has weighed the possibility that the applicant’s return to India might be complicated by international border restrictions against exercising its discretion to cancel the applicant 457 visa. But if international border restrictions are likely to complicate the applicant’s return, it is open to her and her husband to apply for bridging visas allowing them to remain in Australia while arranging their return to India.[34] That reduces the weight the Tribunal places on this consideration.

Conclusion on discretion

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

The Tribunal considers the applicant’s breach of condition 8107(3)(b) of her visa to be a substantial one. She ceased employment with Shree Akshar on 15 May 2018 and has not since been able to secure a new nomination application. The Tribunal weighs the matters set out in paragraph 28 above heavily in favour exercising its discretion to cancel the applicant’s visa.

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

But the Tribunal considers that, on balance, the matters that weigh against the Tribunal exercising its discretion to cancel the applicant’s visa (including that the applicant ceased employment with Shree Akshar in circumstances that were beyond her control) do not outweigh the matters set out in paragraph 28 above. The Tribunal concludes that the correct and preferable exercise of its discretion favours affirming the delegate’s decision to cancel the applicant’s 457 visa.

DECISION

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

2. The Tribunal does not have any jurisdiction with respect to the second applicant.

L. Hawas
Senior Member

Key Legal Topics

Areas of Law

• Immigration

• Administrative Law

Legal Concepts

• Judicial Review

• Procedural Fairness

• Statutory Construction