Singh (Migration)

Singh (Migration) [2019] AATA 6133 (16 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Jagjit Singh
Mrs Mandeep Kaur
CASE NUMBER:  1823568
HOME AFFAIRS REFERENCE(S):          BCC2018/2240051
MEMBER:Alison Mercer
DATE:16 October 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 16 October 2019 at 12:11pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ceased employment for more than 60 days – sponsoring employer’s financial difficulties and sale of business – new employer’s position nominations failed – temporary visa would have expired by date of tribunal hearing in any case – application for permanent residency not part of subclass 457 visa program – discretion to cancel visa – factors for and against cancellation – continuing work with another employer – pending permanent residence and position nomination applications – established life in Australia – financial hardship and prospects for Australian-born child if returned to home country – best interests of the child – decision under review affirmed for first applicant, no jurisdiction for second applicant
LEGISLATION
Migration Act 1958 (Cth), ss 48, 116(1)(b), 140, 348
Migration Regulations 1994 (Cth), Schedule 8, condition 8107(3)(b)
CASES
Grewal v Minister for Home Affairs [2019] FCCA 533
Rani v MIMA (1997) 80 FCR 379
Tien v MIMA (1998) 89 FCR 80
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 9 August 2018 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(b), which provides that the Minister may cancel a visa if he or she is satisfied that its holder had not complied with a condition of the visa. Specifically, the delegate found that the applicant had breached condition 8107 of his subclass 457 visa. This condition states that (amongst other things) if the holder ceases employment, the period during which the employment has ceased does not exceed 60 consecutive days. The delegate found that the applicant ceased employment with his subclass 457 visa employer, Hoshiarpuria Pty Ltd, on 28 February 2018, and thus by the time of the applicant’s decision, the period of his having ceased employment exceeded 60 days. The delegate found that a ground for cancellation was therefore made out, and found that the reasons for cancellation outweighed those against cancellation.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.
The Tribunal received a review application from the applicant on 15 August 2018. It was accompanied by a copy of the delegate’s decision and an authority by which he appointed a registered migration agent, Mr Thomas Cherian, as his representative and authorised recipient for correspondence.
The applicant appeared before the Tribunal on 6 September 2019 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
The Tribunal considers it appropriate to set out the history of the matter in some detail before considering whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.
Departmental history
Visa grant
The Department’s records indicate that the applicant applied for a subclass 457 visa on 2 December 2016 on the basis of his nomination as a Cook (ANZSCO code 351411) made by an approved standard business sponsor, Hoshiarpuria Pty Ltd. The applicant was granted a subclass 457 visa on 29 August 2017, which was valid until 28 February 2019.
Notice of Intention to Consider Cancellation
On 31 July 2018, the Department sent a Notice of Intention to Consider Cancellation (NOICC) to the applicant. He was advised that it appeared that he had not complied with condition 8107(3)(b), as Departmental records indicated that he had ceased employment with his sponsor, Hoshiarpuria Pty Ltd, effective 28 February 2018. Therefore, a ground for cancellation was made out. The applicant was invited to respond.
Applicant’s response
On 6 August 2018, the applicant provided a response in which he indicated that (in summary):
·he came to Australia on a student visa in mid-2013. On completion of his Certificate III and IV in Commercial Cookery, he was employed as a Cook by Hoshiarpuria Pty Ltd on a full time basis and was granted a subclass 457 visa on this basis;
·while the applicant was working there, the business underwent a financial crisis, and was unable to pay the applicant’s wages. In the meantime, he looked for another business who could sponsor him for his subclass 457 visa;
·he had never violated his visa conditions;
·he applied for a job with Ace Complete Party Supplies Pty Ltd in Queanbeyan, NSW, and was selected for the position. Ace Complete Party Supplies Pty Ltd lodged 2 nominations for the applicant but both were unsuccessful. The first was refused because evidence of advertising for the position was inadvertently not included. The second was refused because the Department assessed that the business was a limited service restaurant; and
·he was currently working for another employer to take over sponsorship of his subclass 457 visa and would resume work immediately. The circumstances were beyond his control and for this reason, he asked that his visa not be cancelled, as it would have significant financial and psychological effects on the applicant and his dependent wife.
Department decision
The delegate found that a ground for cancellation was made out under s.116(1)(b), as he was satisfied that the applicant breached condition 8107(3)(b) of his subclass 457 visa. The delegate then considered the discretionary factors for and against cancellation of the applicant’s visa.
The delegate found that the applicant was granted a subclass 457 visa for the purposes of filling labour market shortages for an Australian employer, but this purpose ceased on 28 February 2018 when the applicant ceased work for that employer. Moreover, the applicant did not secure a new sponsor within the allocated period of 60 consecutive days. It was not in line with the purpose of the visa that an applicant should remain in Australia beyond that 60 day period to look to secure new employment, when he could do so from overseas.
Also, the Department’s records indicated that the applicant made a subclass 187 (Regional Sponsored Migration Scheme) (Direct Entry stream) visa application on 28 December 2017, which indicated that the applicant wished to obtain permanent residence in Australia, which again was not part of the purpose of the subclass 457 visa program.
The delegate noted that if he did cancel the applicant’s subclass 457 visa, this would not affect the applicant’s ability to be granted the subclass 187 visa (provided he met the substantive criteria for that visa). Moreover, the applicant did not require the subclass 457 visa to remain lawfully in Australia as if his subclass 457 visa was cancelled, he would be eligible to apply for a bridging visa E to remain lawfully in Australia until the outcome of his subclass 187 visa application was known.
The delegate acknowledged that there was no evidence of any other non-compliance by the applicant but noted that it had been approximately 5 months since he ceased work for his original sponsor. While it was also acknowledged that the business problems of the original sponsor were not within the applicant’s control, he had 60 days to find a new sponsor and employer but had not done so.
The delegate acknowledged that cancellation of the visas would cause some financial and psychological harm to the applicants, particularly if the applicant changed from his present bridging visa A to a bridging visa E without automatic work rights, but he noted that the applicant could apply for work rights if he could demonstrate he would suffer financial hardship without them.
The delegate noted that s.48 of the Act would prevent the applicants from making most further visa applications in Australia but gave this consideration little weight as he found they could apply for visas from overseas without being affected by the limitation in Public Interest Criterion 4013 (PIC 4013), and that the limitation in s.48 was an intended consequence of the cancellation power.
The delegate acknowledged that the applicant had been cooperative with the Department, and that his wife was subject to consequential visa cancellation, but did not give these factors significant weight in favour of not cancelling the visa. He further found that the circumstances of the applicants’ case were not such that would engage Australia’s international obligations and would not breach Australia’s non-refoulement obligations or its obligations under the Convention on the Rights of the Child (CROC).
In relation to any other relevant factor, the delegate acknowledged again that the applicant had a pending permanent residence application but noted that a decision on this application was not imminent and the outcome was unknown. He gave this factor little weight in favour of not cancelling the visa.
In conclusion, the delegate concluded that the ground for cancelling the visa outweighed those for not cancelling.
Tribunal history
Tribunal hearing
The applicant confirmed that he originally came to Australia in 2013 as a student, completed studies in Commercial Cookery and Hospitality, and was then nominated for a subclass 457 visa in 2016 by Hoshiarpuria Pty Ltd, which operated an Indian restaurant in suburban Melbourne. He was granted a subclass 457 visa on 29 August 2017 (valid until 28 February 2019) and worked there as a Cook until he was given notice on 25 February 2018 by the owner. The applicant said that he was told by the owner that he (the owner) was selling business and that the applicant’s last day would be 28 February 2018. The applicant said that he and his employer were aware that the Department had to be notified of this. The applicant said that he consulted a migration agent, who advised him that he had 90 days to find another sponsor to lodge a nomination of him. He found another, employer, Ace Complete Party Supplies Pty Ltd (‘Ace’) and a new nomination of him was lodged by Ace for the position of Cook on 1 March 2018. However, this nomination was refused by the Department on 25 May 2018 as evidence showing that the position had been advertised was accidentally left out by the agent. The applicant noted that during this time (that is, from 1 March 2018 to 25 May 2018), he believed the nomination would be successful, and if it had been, he would have been the subject of another approved nomination within 90 days, as required by the Department. He confirmed that he understood that he had 90 days (not 60) to find another employer to sponsor and nominate him.
The applicant clarified that he in fact had a pending subclass 187 (Regional Sponsored Migration Scheme) visa application for permanent residence, with an associated nomination made by Ace, both of which had been lodged in December 2017, while he was still working with Hoshiarpuria Pty Ltd. The applicant confirmed that the subclass 187 visa application and nomination are currently pending with the Department, but noted that in both cases, the Department had recently requested additional documents, which led him to believe (based on the advice of his migration agent) that he and his employer, Ace, would be likely to receive decisions in 4 to 6 weeks.
The applicant confirmed that Ace lodged a nomination of him as a Cook for a subclass 482 visa, but this too was rejected by the Department, as it was assessed that the position was based in a fast food or casual restaurant and thus could not be approved. This occurred on 20 July 2018, very shortly after he received the NOICC in relation to his subclass 457 visa. In response to the Tribunal’s query, the applicant said that Ace did not lodge a review of either temporary nomination. In the case of the subclass 482 nomination, his agent said that there was no point in Ace lodging a review application as the applicant’s subclass 457 visa had been cancelled.
The applicant confirmed that after his subclass 457 visa was cancelled, he was granted a bridging visa E. He applied for work rights, which the Department granted. He had now been working as a Cook for Ace in Canberra for just over a year. He told the Tribunal that he liked the work and his employers were happy with him. That business was growing. His wife and baby daughter (born June 2019) remained in Melbourne, where his wife is studying English. His wife’s mother is currently in Australia on a visitor visa to assist with the baby. The applicant said that his aim was to have his wife and daughter move to Canberra with him once their visa status was resolved.
The applicant said that he and his wife were used to life in Australia. He had been here for over 6 years. They both had good jobs: him as a full time cook at Ace, and his wife as a part -time administrative assistant for a trucking business in Melbourne. In response to the Tribunal’s query, the applicant said that his parents are in India. His father is a farmer and his mother looks after the home. His sister is also in India, living with her husband and his family. The applicant told the Tribunal that there have recently been serious floods in northern India, which has affected many farmers, including his father. Their house has not been damaged but crops and fields have been. The applicant said that he has been sending money to India to support his parents. There is little financial support they could offer him if he were to return there with his family. In response to the Tribunal’s query, the applicant conceded that he could find work as a Cook in India but said that he would earn much less and/or have to work much longer hours there than he does in Australia, and his and his family’s quality of life would be worse. He reiterated that he and his wife love Australia, and they see greater opportunities for their daughter here than in India.
In response to the Tribunal’s query, the applicant said that he had no other fears or concerns regarding returning to India.
In response to the Tribunal’s query, the applicant said that his wife’s family are in India, apart from her mother (who is visiting) and her brother (who is here studying).
The applicant confirmed that he did not breach the terms of any of his student visas, or his bridging visa E before he was granted permission to work. Before that, he was unemployed for 5 months and had to rely on financial assistance from friends.
The Tribunal discussed with the applicant the fact that its preliminary view was that the applicant had breached condition 8107(3) of his subclass 457 visa due to the time that had elapsed after he ceased work for his original employer (it noted that it appeared that this was 60 days, not 90 as advised by his agent, but undertook to check), regardless of whether the cessation of employment was within his control or not. This meant that the Tribunal had to weigh up a range of discretionary factors to determine whether it was more appropriate to cancel the subclass 457 visas, or reinstate them. It noted that a major factor which appeared to militate against setting aside the Department’s cancellation decision was the fact that, had the applicant’s subclass 457 visa not been cancelled on 9 August 2018, it would have ceased on 28 February 2019 in any case. That is, at the time of the Tribunal’s consideration, there was no subclass 457 visa to reinstate. The applicant acknowledged this, but stated that he had been advised that if the cancellation was set aside, he would hold a bridging visa A (not E), and that this would allow him to apply for a bridging visa B to return to India to visit his parents. He said that he very much wanted to be able to do this, if possible.
Does the ground for cancellation exist?
Section 116(1)(b) - non-compliance with conditions
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. This condition (as it was at the time that the applicant’s visa was granted on 2 December 2016) requires as follows (Tribunal’s emphasis in bold font):
8107
(1) If the visa is not a visa mentioned in subclause (3) or (4), and was granted to enable the holder to be employed in Australia, the holder must not:
(a) cease to be employed by the employer in relation to which the visa was granted; or
(b) work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or
(c) engage in work for another person or on the holder’s own account while undertaking the employment in relation to which the visa was granted.
(2) If the visa is not a visa mentioned in subclause (3) or (4), and subclause (1) does not apply, the holder must not:
(a) cease to undertake the activity in relation to which the visa was granted; or
(b) engage in an activity inconsistent with the activity in relation to which the visa was granted; or
(c) engage in work for another person or on the holder’s own account inconsistent with the activity in relation to which the visa was granted.
(3) If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):
(a) the holder:
(i) must work only in the occupation listed in the most recently approved nomination for the holder; and
(ii) unless the circumstances in subclause (3A) apply:
(A) must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or
(B) if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor or an associated entity of the sponsor; or
(C) if the sponsor is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor; and
(aa) subject to paragraph (c), the holder must:
(i) if the holder was outside Australia when the visa was granted—commence work within 90 days after the holder’s arrival in Australia; and
(ii) if the holder was in Australia when the visa was granted—commence work within 90 days after the holder’s visa was granted; and
(b) if the holder ceases employment — the period during which the holder ceases employment must not exceed 60 consecutive days; and
(c) if the holder is required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, in the location where the holder’s position is situated—the holder:
(i) must hold the licence, registration or membership while the holder is performing the occupation; and
(ii) if the holder was outside Australia when the visa was granted—the holder must hold that licence, registration or membership within 90 days after the holder’s arrival in Australia; and
(iii) if the holder was in Australia when the visa was granted—the holder must hold that licence, registration or membership within 90 days after the holder’s visa was granted; and
(iv) must notify the Department, in writing as soon as practicable if an application for the licence, registration or membership is refused; and
(v) must comply with each condition or requirement to which the licence, registration or membership is subject; and
(vi) must not engage in work that is inconsistent with the licence, registration or membership, including any conditions or requirements to which the licence, registration or membership is subject; and
(vii) must notify the Department, in writing as soon as practicable if the licence, registration or membership ceases to be in force or is revoked or cancelled.
...

The Tribunal notes that the relevant time period specified in condition 8107(3)(b) is 60 days (not 90 days).
It is not disputed that the applicant ceased employment in his nominated occupation and position of Cook with Hoshiarpuria Pty Ltd on 28 February 2018. The Department’s file records this as the date it was notified of by the employer, and the applicant confirmed this at hearing.
Nor it is disputed that more than 60 consecutive days elapsed without the applicant securing an approved nomination from a new employer and approved standard business sponsor. As he explained at hearing, he was nominated by another employer, Ace Complete Party Supplies Pty Ltd, on 2 occasions after 28 February 2018, for the purposes of his subclass 457 visa application, but both nominations were refused by the Department. The Department’s records indicate the first nomination by Ace Complete Party Supplies was refused on 24 May 2018 and the second on 20 July 2018. There is no evidence before the Tribunal that Ace Complete Party Supplies sought review of either of those decisions, and the applicant confirmed at hearing that his employer did not seek review of either decision.
Nor is there any evidence indicating that any other approved standard business sponsor has lodged a nomination in respect of the applicant for a subclass 457 visa that has been approved.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
Consideration of discretion
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
The Tribunal notes that in the recent case of Grewal v Minister for Home Affairs [2019] FCCA 533, the Federal Circuit Court of Australia held at [46] that a visa may be cancelled even if only one factor militates in favour of visa cancellation and all other factors are neutral or against cancellation.
Purpose of the visa holder’s travel to and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia
As discussed with, and acknowledged by, the applicant at hearing, the subclass 457 ((Temporary Work) Skilled) visa is a temporary visa, the purpose of which is to work for a standard business sponsor in a position approved through the nomination process. There is no other permitted purpose for holding a 457 visa.
The applicant's original approved employment has ceased. Moreover, the original cessation date of the subclass 457 visa has passed, on 28 February 2019.
The applicant has not secured another subclass 457 employer, sponsorship or nomination. Although at hearing, he described the efforts he had made to do so, he conceded that these had not been successful due to his present employer, Ace Party Suppliers Pty Ltd, having its 2 nominations of him for temporary visas refused by the Department.
At hearing, the applicant gave the following reasons as establishing that he had a compelling need to remain in Australia:
·his pending subclass 187 permanent residence application, for which he had been nominated by his current Australian employer, Ace, who were happy with his work; and
·the effect on him and his family if they were required to relocate to India; particularly, the financial hardship this would cause, and the lack of prospects for their daughter there, compared to Australia.
The Tribunal acknowledges that the applicant is currently awaiting the outcome of an onshore subclass 187 Regional Sponsored Migration Scheme permanent residence visa application, for which he was nominated by Ace. Both the visa application and nomination are currently being processed by the Department. There is no clear indication of whether they will be successful, and when a decision will be made. Although the applicant told the Tribunal that his employer was happy with his work, he did not provide any written evidence from his employer as to the effect on them if he were unable to continue in his present role, either temporarily or permanently. Nor did the applicant assert that he would be unable to be replaced as a Cook by Ace.
As noted by the delegate, and conceded by the applicant, even if the applicant’s subclass 457 visa is cancelled, he will be able to remain in Australia as the holder of a bridging visa E with work rights until the determination of his subclass 187 visa application.
As discussed at hearing, in the Tribunal’s view, the subclass 457 visa was a temporary visa the purpose of which is to enable Australian employers to fill skills shortages, and it is and was not a guaranteed pathway to permanent residence or long term temporary residence (the same remains true of its successor, the subclass 482 visa). The Tribunal does not consider the wish of the applicant to remain here for a longer time, or perhaps permanently, to be a strong reason in and of itself not to cancel the applicant’s subclass 457 visa, given that it is a temporary visa at best, and is inextricably linked to him being successfully sponsored and nominated for employment by an Australian employer.
The fact that the applicant is not fulfilling the purpose of the subclass 457 visa is a strong factor in favour of cancelling the visas. To the extent that he is fulfilling the purpose of the subclass 187 visa for which he has applied, as noted above, cancellation of his subclass 457 visa will not prevent him being able to remain here until that application is decided.
The Tribunal gives these factors little weight in favour of not cancelling the subclass 457 visa.
Extent of the applicant’s compliance with his visa conditions
There is no evidence before the Tribunal to suggest that the applicant has not complied with the conditions of his bridging visas, or of any other conditions relating to his subclass 457 visa apart from condition 8107.
The Tribunal gives this factor some weight in favour of not cancelling the visa.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
As noted above, the applicant indicated that he and his wife would suffer hardship if they had to depart Australia and return to India as they would be going into an economically uncertain future and would be leaving their lives in Australia. The applicant and his wife expressed particular concern about the effect on their daughter, who they considered would have better opportunities in Australia.
The Tribunal accepts that the applicant and his family would suffer some financial, psychological and/or emotional hardship if they had to depart Australia (noting that, as set out above, they hold bridging visa Es permitting them to remain until the outcome of their subclass 187 visas applications is known), but does not consider that the degree of financial, psychological and emotional hardship that they would face would be insurmountable as they would returning to family in India and the Tribunal is not satisfied that the applicant would not be able to find any employment there to support himself, although it accepts that this might not be at the level that he and his family has experienced in Australia.
Given that the applicant’s daughter is an infant (born June 2019), the Tribunal does not accept that she will face significant barriers to integrate into Indian society, particularly since she would be relocating there with her parents.
The Tribunal therefore gives these factors little weight as a factor weighing against cancellation of the visa.
Circumstances in which the cancellation arose
The Tribunal accepts that the cancellation arose after the applicant’s original sponsoring employer encountered financial difficulties and elected to terminate his employment. It further accepts that this is a circumstance beyond the applicant’s control, and it accepts his evidence at hearing of his efforts to secure another nomination by another Australian employer within his understanding of the period in which he had to do so. It further accepts that the failure of the 2 nominations by Ace, the employer the applicant secured within 60 days of ceasing with his original employer, was also outside the applicant’s control.
It gives these factors some weight in favour of not cancelling the visa.
Past and present conduct by the applicant towards the Department
The Tribunal accepts that, although the applicant did not advise the Department that he had ceased work with his nominating employer (as the employer did so), the applicant has been generally cooperative with the Department and this weighs against cancellation of his visa.
If breach relates to breach of r.2.43(1)(la)…
This factor is not applicable in the present case.
Whether there are mandatory legal consequences, such as whether cancellation would result in the applicant becoming unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention
While the Tribunal accepts that cancellation of a visa would normally result in a person becoming unlawful and subject to detention, the Tribunal is satisfied that the applicant has applied for, and been granted, a bridging visa which is valid until the outcome of the Tribunal review or determination of his subclass 187 visa application, whichever is the later. Accordingly, it does not accept that indefinite detention is a possible consequence of cancellation, as a bridging visa would continue to be available to the applicant if he needed this to make arrangements to depart, to lodge a judicial review application, in the event that the Tribunal review is unsuccessful, or lodge another Tribunal review application if his subclass 187 visa application is unsuccessful.
The Tribunal accepts that, if the visa cancellation is affirmed, the applicant will be subject to s.48 of the Act, which significantly limits what future onshore applications he may be able to make (though in the Tribunal’s view, it does not affect his ability to apply for, or be granted, a visa offshore in future, including a subclass 187 RSMS visa, which the applicant is currently awaiting).
The Tribunal therefore gives the above factors little weight in favour of not cancelling the visas.
Whether there would be consequential cancellations pursuant to s.140 of the Act
The Tribunal is satisfied that the applicant’s wife would be subject to consequential cancellation of her subclass 457 visa pursuant to s.140 of the Act if the decision to cancel the applicant’s subclass 457 visa is affirmed.
The Tribunal has considered the effect of cancellation on the applicant’s wife elsewhere in this decision and therefore considers the above factor to be neutral in its consideration of whether or not to cancel her visas.
Whether any international obligations would be breached as a result of the cancellation
The applicant did not raise any international obligations that he believed would be breached as the result of the cancellation. Nevertheless, the Tribunal has considered these as follows.
UN Convention on the Rights of the Child (CROC)
Australia is a signatory to the CROC. Article 3 of the CROC requires that, in all actions concerning children, the best interests of the child should be taken into account as a primary consideration. Article 6.2 provides that parties should ensure to the maximum extent possible the survival and development of the child.
The Tribunal has considered whether, as Australia is a signatory to the CROC, it would not be in Australia’s interests to act contrary to its provisions; therefore, not doing so would be a compelling circumstance that affects Australia. As noted above, Article 3 of that Convention requires that, in all actions concerning children, the best interests of the child should be taken into account as a primary consideration. Article 6.2 provides that parties should ensure to the maximum extent possible the survival and development of the child. Article 9.1 provides that parties should ensure that a child should not be separated from his or her parents against their will, except when competent authorities determine that such a separation is necessary for the best interests of the child. Article 27 provides that states recognise the right of every child to a standard of living adequate for the child’s physical, mental, spiritual and social development, and that the parents or others responsible for the child have primary responsibility for this. Article 28 provides that states recognise the right of a child to education.
The Tribunal is satisfied that the applicant’s daughter will not be separated from her parents as, if the visas are cancelled and their subclass 187 visa applications are unsuccessful, the family would return to India together.
The Tribunal accepts that the applicant and his wife are concerned that their standards of living will be lower in India, and their daughter may have fewer opportunities than she would if they remained in Australia.
However, the Tribunal is not satisfied that the change to their standard of living would be below adequate if the family returned to India. The Tribunal is not satisfied that the applicant’s daughter’s survival or basic standards of living, her ability to develop and her access to education would be jeopardised if she left Australia to the degree that it would breach the articles of the CROC set out above.
UN Convention on Refugees, International Covenant on International Civil and Political Rights (ICCPR)
The Tribunal is not satisfied that the situation of the applicants invokes any international obligation under the above treaties to which Australia is a signatory.
Accordingly, there is nothing before the Tribunal to indicate that cancellation would result in Australia breaching any of its international obligations, and the Tribunal therefore gives no weight to this consideration.
Any other relevant matter
The Tribunal considers that a stay in Australia on a temporary visa such as the 457 visa is, as the length of visa grant suggests, a temporary stay, which by its nature will come to an end. The natural consequence of a temporary stay is a departure from Australia, which is something which should be anticipated by the holder of a temporary visa.
Significantly, from the Tribunal’s point of view, the applicant’s subclass 457 visa would have expired on 28 February 2019 (had it not been cancelled earlier) – a date that is now more than 6 months ago as at the time of the Tribunal’s decision. Thus, the value of setting aside the Department’s cancellation is redundant, since there no longer a visa to reinstate. As noted above, the Tribunal considers that the applicant is entitled to remain in Australia until the outcome of his subclass 187 visa application as the holder of a bridging visa E, regardless of whether the subclass 457 visa is cancelled or not.
As discussed above, the Tribunal has some sympathy for the applicant’s circumstances, in that it accepts he has sought to establish a life here with his wife over approximately 6 years, that the circumstances that led to the cancellation of his visa do appear to have been outside his control.
The Tribunal also notes that the applicant has been advised that if his subclass 457 visa had not been cancelled, he would be entitled to a bridging visa A, which would entitle him to apply for a bridging visa B which would enable him to travel to India to visit his family there, whom he has not seen for several years. While the Tribunal acknowledges that the applicant misses his family in India, it does not consider the granting of temporary travel rights to him to visit them to be a factor in favour of not cancelling his subclass 457 visa, which would otherwise have expired, particularly when there appears nothing to prevent his family in India from visiting the applicant in Australia.
Therefore, after careful consideration of the above factors individually and cumulatively, the Tribunal concludes that the factors in favour of cancellation outweigh those against.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled
DECISION
The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
The Tribunal has no jurisdiction with respect to the second named applicant.
Alison Mercer
Member

[2019] AATA 6133

16 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction