Singh (Migration)

[2020] AATA 5273

Singh (Migration) [2020] AATA 5273 (25 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Balwinder Singh

CASE NUMBER:  1917910

HOME AFFAIRS REFERENCE(S):          BCC2019/2385419

MEMBER:Karen Synon

DATE:25 September 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 25 September 2020 at 8:03pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – employment with sponsor ceased over 60 days – occupation of Chef – sponsor ceased trading and changed hands – no new sponsorship – financial hardship – withdrawal of previous partner visa application – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 140, 359
Migration Regulations 1994, Schedule 8, Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 25 June 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) of the Act on the basis that the applicant had not complied with condition 8107(3)(b).

3. The applicant applied for review of the decision to cancel his visa on 4 July 2019 and provided to the Tribunal a copy of the primary decision and the notification of cancellation.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Invitation to comment and provide information

5. On 24 February 2020, in accordance with the provisions of s.359A and s.359(2), the Tribunal wrote to the applicant in the following, relevant terms:

   ·     The particulars of the information are:

   o    On 19 October 2017 the Department approved a nomination lodged [by] Karan International Pty Ltd for a ‘Chef’ in your favour (‘the approved nomination’);

   o    On 11 September 2018 the Department granted you a Temporary Business Entry (Class UC) subclass 457 visa that was subject to mandatory conditions 8107 and 8501…

   o    On 8 October 2018 the Department received advice from your former sponsor Karan International Pty Ltd stating that you had ceased employment with your sponsor.

   o   On 22 May 2019 the Department issued you with a Notice of Intention to Consider Cancellation (‘NOICC’) on the basis that the standard business sponsor who nominated you in your most recently approved nomination for the visa, Karan International Pty Ltd, on 8 October 2018 notified the department that you ceased employment with it.  This information suggested that you appeared to have ceased employment for a period exceeding 60 consecutive days and have therefore not complied with paragraph 3(b) of condition 8107.

   o   The occupation listed in the approved nomination was not an occupation specified in the relevant instrument and, therefore, as the holder of your subclass 457 visa you can only lawfully work for either Karan International Pty Ltd or an associated entity.

   o    The Department also invited you to indicate why you thought the ground for cancellation did not exist and to put forward any reasons why you felt your visa should not be cancelled.

   You responded to the NOICC on 7 June 2019.

   This information is relevant to the review for the following reasons:

   ·The Tribunal may find that your occupation, ‘Chef’ is not a specified occupation for the purposes of paragraph 8107(3A);

   ·Consequently, the Tribunal may find that you must meet the requirements of paragraph 8107(3)(b);

   ·Given the information before it, the Tribunal may find that during the period you held your subclass 457 visa you had ceased your employment for more than 60 consecutive days;

   ·As a result, the Tribunal may find that you did not comply with paragraph 8107(3)(b) of your subclass 457 visa and that, therefore, there is a ground for cancellation of your visa under paragraph 116(1)(b) of the Act (attached); and

   ·Unless the Tribunal is satisfied that it should exercise its discretion not to cancel your subclass 457 visa;

   ·Then, if the Tribunal makes these findings it would have no option other than to affirm the decision under review.

   You are invited to give comments on or respond to the above information in writing.

   Subsection 359(2) of the Act allows the Tribunal to invite a person to give it information that is relevant to the review of a decision.  Accordingly, the Tribunal now invites you to give the following information which, if required, will assist it in considering the exercise of its discretion regarding the cancellation of your subclass 457 visa:

   o    reason and extent of your breach of visa condition 8107;

   o    the degree of hardship that may be caused to you;

   o    the circumstances in which the ground of cancellation arose;

   o    your past and present conduct towards the department;

   o    any mitigating, compassionate and compelling factors;

   o    whether any international obligations would be breached as a result of the cancellation;

   o    the impact on any victims of family violence; or

   o    any other relevant matters you feel the Tribunal should take into account.

6. A response or comments and the information were invited by 10 March 2020.  On 9 March 2020 the applicant requested an extension of time on the basis that:

   I am suffering with very bad ear enfection (sic) and I saw this email few days before . It’s very hard to explain for me in short time. its my humble request give me 28 days more than I’ll explain properly. What had happened with me.

7. On 10 March 2020 the applicant further advised:

   And one more thing plz, I want proper hearing date and ill explain face to face what happened with my visa.  Not just only written statement.  Because I am not agreed with this cancellation.

8. On 10 March 2020 the Tribunal responded advising that it was unwilling to grant a 28 day extension without detailed medical evidence as to why he could not provide a response within the 14 days provided and that “just seeing the email" is not a sufficient reason.  The Tribunal advised that in the absence of the requested medical or other reasons the Tribunal was prepared to grant an extension of 14 days until 24 March 2020.

9. On 24 March 2020 the applicant responded thus:

   I received your email regarding my MRT.  I just wanted to say that it difficult for me to explained in written what happened with me.  Usually there is a proper hearing in front of judge.  I need that hearing.  Because i have all the proof that my owner did wrong with me.  I can not explain in written.  Before that immigration just cancel my visa without any restaurant owner and company enquiry.  So its my humble request please give me court hearing date.  I will give all proofs and explained everything in front of judge but not in written.

10. The applicant appeared before the Tribunal on 29 April 2020 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

11. The Tribunal exercised its discretion to hold the hearing by telephone.  The hearing was held during the COVID-19 pandemic.  The Tribunal determined it was reasonable to hold a hearing by telephone, 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, and the delay to the matter if the hearing was not to be conducted by telephone.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

12. The Tribunal notes that the applicant indicated, in his response to the hearing invitation, that he wanted to call two witnesses, Mandeep Kaur (his fiancée) and Sarvpreet Singh (his former employer/manager) however neither of these people answered the phone when called at the commencement of the hearing by the hearing attendant or during the hearing.  The applicant explained that his fiancée is a heavy sleeper so she may not have heard her phone.  He did not know why his former employer/manager did not answer.  The Tribunal records that it attempted to contact Mandeep Kaur three times and Sarvpreet Singh twice during the hearing.

13. At the conclusion of the hearing and because the Tribunal has been unable to take witness evidence from either of the two people nominated by the applicant, it asked him if he would like a period of seven days, until 6 May to provide any written submissions.  He said yes.

14. On 7 May 2020 the applicant relevantly wrote[1] to the Tribunal:

    As my phone hearing was done on 29 april. The respective authority told me to submit the proof regarding my sponsorship and restaurant .but due to covid- 19 my owner and my accountant are busy. I need more time at least a week . I have sponsorship and nomination as well.  All i need is more 7 days. So that i can provide you all proof regarding business closed without my acknowledge and submit my new sponsership (sic) documents to you.  I am trying hard to get this. Please accept my request and give me more time.

    [1] The applicant’s communications have not edited for spelling/grammatical errors.

15. In response on 7 May 2020 the Tribunal advised:

    The Member did not make any request for additional evidence or documents and did not tell you to "submit the proof regarding my sponsorship and restaurant".  On this matter you conceded to both the Department and the Tribunal that you had ceased working for your approved sponsor for a period in excess of 60 days.

    You made no mention in the hearing of any new sponsor and indeed said you had been unable to find a new sponsor/employer either within the required 60 days or until last week.

    You were given an opportunity to provide any comments or information in response to the 359A(2) letter, the period for which was extended at your request,  You provided no substantive response, information, submissions or evidence saying you prefer to talk at the hearing.  You were also invited to provide any evidence you wished to rely on before the scheduled hearing.  You provided no such written evidence.

    At the conclusion of the hearing, the Member offered you a period of 7 days to provide any other information.  She offered this especially in light of the fact that your fiancée did not answer her phone when we called her to provide witness evidence.  You did say she likes to sleep-in so maybe that is why she did not answer.  You might remember we tried her number several times.  At the conclusion of the hearing you were clearly informed that if no submissions were received by close of business 6 May 2020 the Member would proceed to making its decision .

    For these reasons the Member will be proceeding to a decision on the material before her and not wait a further 7 days as requested.  However, the Member is not likely to lodge this until the morning of Monday 11 May so anything you provide before then will be considered.

16. On 28 August 2020, when this decision had not been finalised, the Tribunal contacted the applicant by phone and email apologising for the delay and advising that if he had any written submissions, he wanted to make he should do so by 4 September.  No submissions were received.

17. 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

18. 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?

19. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 attached to the applicant’s visa. Condition 8107(3)(b) relevantly requires that ‘if the holder ceases employment – the period during which the holder ceases employment must not exceed 60 consecutive days’.

20. On the basis of the information before it the Tribunal finds that the applicant was granted a subclass 457 visa on 11 September 2018 to occupy the nominated position of ‘Chef’ with Karan International Pty Ltd.  This was cancelled on 25 June 2019.

21. Relevantly the following information was included in the cancellation decision (drawn from the applicant’s response to the NOICC):

    The visa holder states that when he finished his study, he started part time work in Saleem Indian restaurant in Coburg, Victoria and was paid cash.  He used this time to improve his skills in order to work towards his dream of obtaining a job in hospitality.  He states that he is a genuine person and is willing to obtain a letter from the owner of the business if proof is required for this period of work.

    The visa holder states that he then started work for Four Season Indian Restaurant in Hawthorn.  He states that he used this work experience in his Temporary Work visa application.

    The visa holder states that he loved his job so much, he started looking for full time Chef jobs.  He states that he found a job vacancy for the role of Chef at D’tandoor Restaurant which is located on 353 Burwood Rd, Hawthorn, Victoria.  He states that after a trial period he started work and then was offered to be sponsored.  He then lodged his Temporary Work visa application which was granted on 11 September 2018.  The visa holder states that he was happy that he obtained a permanent job in his chosen profession and that he was satisfied with the pay.

    He states that he then started to notice that the owner of the business was not ‘coming in the restaurant’.  The visa holder states that he asked the owner why ‘he came in after a few days’. The owner then advised him he had sold the restaurant.

    The visa holder states that he was in shock as the owner did not give him ‘any notice or clue regarding restaurant’ was for sale.  He states that he then informed the Department through his employer that he ceased employment as he did not ‘want to do any illegal activity’.  The visa holder then references an email that he has provided regarding his ceased employment that his employer then forwarded on to the Department.

    The visa holder then states that the fact that his employer ‘shut down his business’ is not his fault.  He states that this incident has spoilt his ‘whole life’ and that he is ‘mentally upset’ and is visiting the doctor every week.  He is able to provide ‘medical bills as proof’.

    He states that he has ‘applied so many jobs’ and that he has attached proof of this.  He states that he ‘got few calls from employers’ however they did ‘not seem genuine because offering (sic) underpaid wages etc’.  He did not accept these roles because he did not ‘want to do anything which is against department’.

    The visa holder states that the fact that he does not have a ‘sponsor nomination’ is out of his hands.  He states that he has applied for jobs and has recently undergone at trial with an employer who likes  his work but he needs more time.  He states that he requires ‘time till 19 of June 2019 for sponsor nomination’ and that ‘everything is almost done’.  On 20 June 2019 the visa holder notified the Department that a Sponsorship application has been lodged by a prospective employer.  To date, no nomination has been lodged.

    He states that he is aware that the Department has the authority to cancel his however based on his previous experience ‘genuineness towards his employment, he has requested an extension until 19 June 2019.

    He states that he is aware that he has breached the condition of 60 days and the fact that he has not been able to find another employer to sponsor him is out of his hands.  He states that 60 days is not long enough to find ‘new sponsorship’ that is fair and genuine’.   He also states that ‘on one side the Department encourage (sic) to find a genuine sponsorship but on other side there is a of 60 days condition which is hard to follow these days’.

22. During the hearing the applicant said he did not agree that he ceased employment with Karan International on 8 October 2018, that the Department had lied and he has proof.  He only knew that his employer had changed when, after two and a half months, he saw his pay was coming from a different company and he asked the owner who said the ABN and the company had changed.  When asked when he did cease working at the restaurant, he said he did not stop work; he was made to stop because he knows the employer has the responsibly to notify the Department of any changes of the ABN or anything else, within 28 days but the employee is also responsible.  He repeated that he noticed on his payslip that it was coming from a different employer.  However, in his case, he did not even know about the changes to the company until he noticed this on his payslip; that it was coming from a different company name.  The applicant said he does not understand how the visa was granted because he has proof that the company name was changed before the visa was granted.  Asked when he ceased work at that restaurant the applicant said it was when he sent the email that the company had changed and he stopped working there 8-10 days after that; in October 2018.

23. The Tribunal asked if, since October 2018, he had begun working for any other sponsor.  He said no; he tried a lot but could not find another sponsor.  He said the restaurant where he worked still exists but is run under a different management name; he thinks it is the same manager but everything else has changed.  Asked why, if it was the same manager, he was not reemployed, the applicant said they advertised the chef’s position again after some time and they hired him “but the Department had given the visa so he did not know the information about the sponsor”.  Asked to explain this more clearly the applicant said that when he saw the ad he gave them his resume and they asked him to go back, but Immigration said it had been over 60 days.

24. Noting the applicant had asked the Tribunal to take witness evidence from his former manager, it asked him what evidence he wanted this person to give.  He said he cannot guarantee what he will say but he gave his number because he was the manager at that time and he can explain what happened or whether he made a mistake.  The Tribunal said he had already provided a submission to the Department in which he acknowledged he had breached the 60-day condition and that he had told the Tribunal he ceased employment in October 2018.  The applicant said he thinks it is the responsibility of the owner to give the Department the correct information and, if not, there should be consequences for the employer and he had previously “done the fraud with him”.  He said he had asked Sarvpreet Singh to be available to give evidence.  The Tribunal attempted to telephone Sarvpreet Singh but he did not answer and no provision for a voice mail message (other than by text) was available on his number.  The Tribunal asked the applicant what he wanted the Tribunal to do in this situation.  He responded that he wanted the Tribunal to go on and make a decision.  Asked if he would like the Tribunal to try Sarvpreet Singh again (which would be the third time since he also did not answer when the hearing attendant called earlier) he said no, that was enough.

25. During the hearing the applicant repeatedly raised two issues about which he was very concerned in relation to the grant of his visa.  These are that he believes the sponsor had ceased operating before the grant of his 457 visa and this was an error by the Department because the restaurant was “doing something dodgy”.  He knows this because he found out the company name was different on his payslip and the accountant gave him the information that the company ceased two to three months earlier.  He believes this has ruined his life.

1. Secondly, based on this belief, he is of the view that the Department should have taken action against the employer and believes the Department can arrest them.  He does not understand why no action has been taken against the employer.  While the applicant repeatedly said he had proof that the sponsor had ceased operating before he was granted his 457 visa, no such proof was provided to the Tribunal.  The Tribunal records these concerns because they are clearly fiercely held by the applicant however, in the context of this cancellation review, these concerns do not mitigate the fact that the applicant is no longer employed in his approved occupation of Chef for the approved sponsor or a related entity.

2. The applicant conceded that he ceased working for Karan International Pty Ltd, albeit unwillingly, in October 2018 and that he did not re-commence employment on a 457 visa again for 60 days or more.  Indeed, he has not secured any subsequent employment for any approved Temporary Work Sponsor since he ceased working almost two years ago.  In this respect the Tribunal records the applicant’s evidence that he believes 98% of Indian, Pakistan and Greek restaurants ask for $40,000 up front for sponsorship and this is the reason he could not find a sponsor within 60 days; he was not prepared to pay this money; he would rather return to India.

3. Because the applicant ceased employment for in excess of 60 consecutive days, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

   Consideration of discretion

4. 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 Policy and operations documents.[2]

   The purpose of the applicant’s travel to and stay in Australia

   [2] Legend – Policy and Operational documents – General visa cancellation powers (s109, s116, s128, s134B and s140 – matters that should be considered (accessed 28 April 2020 and 23 September 2020).

5. The applicant came to Australia in September 2008 as a student.  At the time he arrived he intended to study in hospitality which he did completing a Certificate III, IV and Diploma in Hotel Management.  He had previously completed a Bachelor of Arts in India.  At the time he arrived he was very happy to return to India at any time.  Asked when he decided he wanted to stay in Australia, the applicant said it was in 2013 when his fiancée “forced him to stay here”.  The applicant confirmed that he has always held temporary visas here; student visas, bridging visas and the 457.

6. The applicant said that if he cannot stay in Australia he will return to India where he can start a business in hospitality based on his skills.  Asked why he did not return when his visa was cancelled last June, he said it was because the owner committed a fraud and “the Department has done a few wrong things against him because they put some allegations against me” so he wants to clear the allegations from his name and prove he is correct.  If not, he will go to the Federal Court with all the proof he has and then, once he clears his name, he will go back to India.

7. A 457 visa is a temporary one designed to allow employers to fill gaps in the Australian workforce and it creates no expectation that an applicant will be able to remain in Australia on a permanent basis.  The purpose of the applicant’s stay in Australia, when granted the 457 visa was to work full time as a Chef for Karan International Pty Ltd and he was granted a temporary visa for that purpose.  This purpose no longer exists.  The applicant’s evidence is that he has not worked as a Chef since October 2018, almost two years ago.  As over 18 months have passed since the applicant ceased employment with Karan International Pty Ltd and he has not, since then, been the subject of an approved nomination, the Tribunal has formed the view that the purpose of the applicant’s further stay in Australia is no longer viable and he has no compelling need to stay in Australia.  This weighs against the applicant.

   The extent of compliance with visa conditions

8. There is no evidence before the Tribunal that the applicant has not otherwise complied with the conditions of his Temporary Work Skilled 457 visa and, as such, accords some weigh in the applicant’s favour.

   The degree of hardship that may be caused by the visa cancellation

9. The applicant did not provide any evidence to the Tribunal of any emotional or psychological hardship should he need to depart Australia.  Despite him raising no issues and saying he was happy to return to India he also told the Tribunal that he has an Indian fiancée who is studying in Australia although he declined to say when they planned to marry.  However, as his fiancée is on a temporary student visa, the applicant would not be in a position where he would have to leave a person who is an Australian citizen or permanent resident.  As there is no evidence before it of any emotional or psychological hardship that may result from the visa cancellation the Tribunal gives this little weight.

10. The Tribunal accepts that the applicant may experience some financial hardship in returning to India.  Asked specifically about any hardship he would face in returning to India, he said there would be problems and mainly financial hardship but if the Department has decided that they will not give him a visa then he does not think about it too much and will see what happens when he goes there.

11. The applicant said that while he had a good relationship with his family before 2013, after he married an Australian in 2013, his family has been against him and his uncle was not happy because he did not want her to be entitled to a share of the family’s assets.  His family now does not consider him part of the family and he will have no inheritance.  However, the applicant also said that if he does have to go back to India, he can ask for the properties to which he is legally entitled.

12. While accepting that the applicant may experience some financial hardship, he has clearly indicated he is happy to return to India and will be able to ask for the properties to which he is legally entitled.  Further, the applicant has always been in Australia on temporary visas and should not have had any reliable expectation of permanency.  That he has chosen to stay here for such a long period was his decision.  In this regard the Tribunal notes the applicant’s evidence that he has not been able to work in Australia for over a year, since his visa was cancelled in June 2019, because he has no work rights and has not been able to find employment in his skilled occupation.  Given the applicant has been able to stay in Australia for over a year with no income the Tribunal gives any financial hardship he may experience on his return to India little weight.

    The circumstances in which the ground for cancellation arose

13. The ground for cancellation arose because the applicant's sponsor sold his business being the restaurant where the applicant was employed as a Chef.  In this respect, the Tribunal notes that the applicant did not voluntarily cease working with his former sponsor, Karan International Pty Ltd.  The Tribunal accords some weight in the applicant’s favour that he ceased working for his employer, through no fault of his own.

    The applicant’s past and present behaviour towards the Department

14. The cancellation decision records that the applicant has a “pattern of behavior [where he] appears to use Australia’s visa system to extend his stay here despite the visa he has lodged not suiting his intention”.  Earlier in the decision the delegate noted “I find some of the visa holder’s previous behaviour does raise some concerns regarding his intended purpose of stay in Australia.  For example, after twice being notified that the Department was aware of information that the relationship was contrived, the visa holder withdrew the Partner visa application on 22 March 2013”.  The applicant feels very strongly that the Department behaved wrongly in considering his partner visa and, for example, asserted that four years after it was lodged went to his parents’ house and asked for his wife’s date of birth, but his parents would not even know their own dates of birth.  They also enquired of people in other villages, 10 or 20 kilometers away about his relationship.  He does not think this is correct and does not know why they did not come to him, where he was living, and ask him about his relationship.  The applicant said he did not withdraw his partner application because he was scared of what they were saying but because the Department caused a lot of distress in his relationship over four or five years and this eventually led to their divorce.  The applicant asserted that the Department did this because he was Indian; they would not do it to an Australian.

15. The Tribunal notes that the information in the cancellation decision is contradictory.  In one section the delegate records the applicant withdrew his partner visa application on 22 March 2013 after being twice notified that the Department was aware of information that the relationship was contrived and, in another section, the delegate recorded that on 21 January 2015 the decision was made to grant a Temporary Partner visa but on “14 March 2018. the Partner visa was withdrawn as per the visa holder’s request”.  Given this contradictory information the Tribunal places no weight on the circumstances surrounding the applicant’s partner visa application and subsequent withdrawal.

16. The Tribunal records the applicant was very distressed and frustrated by what he believes was the Department’s unfair treatment of him and he does understand why it would grant him a 457 visa in September 2018 if it had these concerns about his partner visa application.  The Tribunal believes this to be a reasonable concern.  So, while the Tribunal acknowledges the concerns raised in the cancellation decision, the fact that the events recorded are inconsistent and the applicant’s 457 visa was granted after the sequence of events related to his partner visa application, it accords no weight to the concerns about the applicant’s past and present conduct towards the Department recorded in the cancellation decision. There is no other information about the applicant’s past and present conduct towards the Department available to the Tribunal.

    Whether cancellation would result in the visa holder being unlawful and subject to detention

17. The applicant’s visa was cancelled on 25 June 2019 and he now holds a Bridging visa E.  There is no evidence before the Tribunal that cancellation would result in him being subject to detention, or that indefinite detention is a possible consequence of cancellation.  While the Tribunal notes that should it affirm this decision, the applicant will become an unlawful non-citizen, there is no evidence before it to indicate he would not depart Australia voluntarily.  Indeed, the applicant told the Tribunal that he has no fear or concern in returning to India.

18. Further, while s.48 of the Act means the applicant will have limited options to apply for other visas onshore, these are the intended consequences of the legislation when a visa is cancelled under these grounds.  Therefore, the Tribunal does not foresee a situation that would result in the applicant’s detention or indefinite detention.

    Whether any of Australia’s international obligations, including non-refoulement and best interests of children would be breached as a result of the visa cancellation

19. There is no evidence before the Tribunal regarding this matter.  The Tribunal asked the applicant if he holds any fear or concern in returning to India.  He said he did not and if the visa is not granted, he would be happy to return to India.  The Tribunal is of the view that if the applicant held any fears, he would have expressed this given the opportunity to do so. 

20. In relation to the Tribunal’s obligation to consider, as paramount, the best interests of any children, the Tribunal asked the applicant if any children were born of his marriage.  He said he had no children but has a stepdaughter from his marriage.  He is divorced.  The applicant provided no further information about his relationship with his stepdaughter including if he sees her regularly.  The Tribunal notes that the applicant did not ask it to take evidence from his former wife and so, in the absence of any submissions, written or oral that his stepdaughter’s interests could be affected by his departure from Australia, the Tribunal places no weight in the applicant’s favour in relation to this consideration.

    Consequential cancellations under s.140

21. This is not a relevant consideration as there are no consequential cancellations.

    The impact of cancellation on any victims of family violence, if family violence is a factor

22. No such considerations arise.

    Any other relevant matters

23. As noted above the applicant asked the Tribunal to take witness evidence from his fiancée but she did not answer the phone when called.  The applicant said she is a deep sleeper.  Asked what evidence he thought his fiancée would give, the applicant said she would tell the truth and that is why he gave her number in case the Tribunal wanted to ask her any questions.  The applicant is engaged to Mandeep Kaur who he has known for two and a half years.  She came to Australia three and a half years ago and is studying business management.  They were engaged (at the time of the hearing) a year earlier.  He declined to say when they plan to marry saying this is his personal life.  The applicant did not raise any issues or concerns about being separated from his fiancée who, in any case, is an international student in Australia.  The Tribunal therefore places no weight, in the applicant’s favour, on this consideration.

24. The Tribunal has taken into account all of the available evidence in this case.  Having considered all the circumstances the Tribunal is not persuaded that it should exercise its discretion not to cancel the visa as it is not satisfied that any of the matters raised by the applicant before this Tribunal or the Department or indeed evident on any of the material before it, either individually or cumulatively, is sufficient for the Tribunal to exercise its discretion not to cancel the visa.

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

    DECISION

26. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Karen Synon
    Member