Vaidh (Migration)

[2020] AATA 2350

Vaidh (Migration) [2020] AATA 2350 (9 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ronakkumar Vaidh

CASE NUMBER:  1911617

DIBP REFERENCE(S):  BCC2018/6164381

MEMBER:John Cipolla

DATE:9 June 2020      

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 186 -  Employer Nomination Scheme (Temporary Residence Transition) visa.

Statement made on 9 June 2020 at 1.32pm

CATCHWORDS

MIGRATION – cancellation – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – incomplete and incorrect information in previous visa application – owned and operated own business –business registered with view to future venture – provided services to friends and community groups for token payment – worked other than in nominated profession – selected closest option from dropdown list on ATO form – work duties compared to ANZSIC listing – integration into community – permanent resident wife close to obtaining citizenship and Australian citizen child – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 101(b), 107, 109

CASE

Greig v Commissioner of Taxation [2018] FCA 1084

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 May 2019 to cancel the applicant’s Subclass 186 Employer Nomination (Permanent) visa under s.109 of the Migration Act 1958 (the Act).

2. On 05 July 2016 the applicant was granted a Subclass 186 Employer Nomination Scheme (Temporary Residence Transition) visa. On 08 May 2019 the delegate cancelled the applicant’s visa under s101(a) of the Migration Act on the basis that the applicant had not fully answered all questions on his visa application and had provided incorrect answers on his application (101(b)). The delegate determined that the applicant had owned and operated his own photography business from June 2010 and had failed to disclose this fact in his UC 457 Temporary Work (Skilled) visa application form, and that he had not worked in his nominated profession of Graphic Pre-Press Trades Worker (ANZSCO 392211), instead he had worked as a Graphic Designer (ANZSCO 232411) as stated on his income tax returns and various online profiles. This information was put to the applicant in two Notices of Intention to Consider Cancellation (NOICC) as information which could form part of the reason for cancelling the applicant’s Subclass 186 visa and the applicant was invited to comment. The NOICC’S were dated 20 February 2019 and 22 March 2019 and the second NOICC was issued as the delegate determined that there had been an error in the first.

3. The applicant responded to the NOICC on 05 March 2019 and 05 April 2019. In response the applicant stated that he had registered his business with a view to a future business venture following the obtainment of permanent residence.  The applicant stated that the nature of the photography work he had undertaken was provided to friends and community groups and that any income he had derived in the periods prior to or during the period he held his 457 visa could only be classified as small gifts or tokens of appreciation.  The applicant also indicated that he had registered for GST and lodged a BAS for FY16 on the advice of his accountant in order to claim a deduction on his camera under capital purchases, not on the basis that he were operating a fully-fledged business, and that the online marketing platforms such as Facebook were minimally utilised during the period in question supporting this assertion.

4. With respect to his nominated profession, the applicant represented his position as Graphic Designer (ANZSCO 232411) on ATO forms as he could not find the appropriate code for use in their dropdown box and this was most closest option, and his profession was listed as Graphic Designer (ANZSCO 232411) on online platforms as he believed the market had little understanding of the capabilities of a Graphic Pre-press Trades Worker. The applicant also provided an overview of the technical tasks he performed as a function of his role as a Graphic Pre-press Trades worker whilst working for the sponsor and reiterated that his use of photographic equipment in his job corresponded exactly with the nominated role and not that of a Graphic Designer as suggested by the Department.

5. On 08 May 2019 the delegate cancelled the visa. The delegate determined that the applicant had received payment for services in his business not in the capacity of a reward or small gift, but as a function of a “business like activity” such as would be received by an employee or contractor which would render the payment taxable. This in turn would support the inference that the applicant was in fact concurrently operating a business at the time of employment in his purported nominated profession as a Graphic Pre-press Trades Worker (ANZSCO 392211). Had this information been included on the 186 application form, the delegate concluded that the application would have been refused due to non-compliance with condition 8107 which requires that the holder not engage in alternate employment other than with affiliates of the sponsoring entity. The delegate also concluded that when the applicant lodged his income tax return the applicant could have used either the Graphic Reproduction Tradesperson (ANZSCO 392211), which has the equivalent occupation code to the nominated position, or the Occupation Not Listed code. As a result of this failure, the delegate determined that the applicant had had in fact disclosed his true profession at the time, namely, Graphic Designer on his ATO lodgements which was in conflict with the answer provided by the applicant on his Subclass 186 application.

6. Having established that the grounds for cancellation had been made out, the delegate then assessed whether or not the visa should be cancelled in accordance with the relevant discretionary factors. Having regard to those factors the delegate determined that the applicants visa should be cancelled.

7. The applicant appeared before the Tribunal on 21 April 2020 to give evidence and present arguments.

8. The Tribunal at the commencement of the hearing went into considerable detail about the process of merits review and the prospective issues in the review.

9. After completing its preliminary comment’s the Tribunal made reference to the material that had been provided to it at review.  The applicant’s representative advised the Tribunal that a 20 page submission had been made to the Tribunal dated 14 April 2020.  The Tribunal noted that it appeared that this document had not been downloaded into the Tribunal database.  The Tribunal accessed the database and found that the submission of 14 April 2020 had been downloaded, but, had been incorrectly coded as a formal response to hearing and not as a submission and for this reason it had not been picked up.  The Tribunal determined in the circumstances that it needed to access the submission and consider it before it could proceed to the conduct of the hearing.  The Tribunal advised that if after consideration of the submission it was able to proceed to a favourable decision it would proceed on that basis and if not, a further hearing would be convened.

10. The applicant was represented in relation to the review by his registered migration agent.

11. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

13. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

14. In the present matter, the Tribunal is not satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 did not comply with the statutory requirements.

    Was there non-compliance as described in the s.107 notice?

15. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with Section 101.

16. There were 2 components of the purported non-compliance with s.101 that were articulated in the NOICC.

17. The first component was that the applicant in his application for a Subclass 457 visa, made on 23 January 2013, listed his occupation as a Graphic Pre-press Trades Worker.  This application was approved on 7 March 2013 and was valid until 7 March 2016. The applicant then applied for a Subclass 186 visa and listed his occupation as Graphic Pre-press Trades Worker and this visa was granted on 5 July 2016, however in his corresponding tax returns throughout this period the applicant listed his occupation as Graphic Designer.

18. The delegate further noted in the NOICC noted that “on 28 August 2015, Jogia Diamonds International Pty Ltd lodged an Employer Nomination Scheme/ Regional Sponsored Migration Scheme Nomination application for the occupation of Graphic Pre-press Trades Worker and listed you as the nominee. This nomination was approved on 31 May 2016.”

19. The delegate further noted that recourse to Australian Taxation Office (ATO) records showed the applicant whilst working for Jogia Diamonds listed his occupation as Graphic Designer from 2013 to 2017.The delegate concluded that “I consider this answer to be incorrect as it appears that you were working as a Graphic Designer for your sponsor, Jogia Diamonds International Pty Ltd from March 2013. ATO information also indicates you were working as a Graphic Designer for the financial years from 2013 to 2016.”

20. The applicant has explained this in his response to the NOICC. The applicant advised that he did not use an accountant or a tax agent to lodge his tax returns.  The applicant lodged them himself, using the online lodgment tools offered by the ATO. The applicant stated that when lodging his taxation returns there is a drop-down box in which an employee is able to list their occupation. The applicant explained that the ATO drop-down box did not offer an option of a Graphic Pre-press Trades Worker.  The applicant stated that the closest occupation offered in the drop-down list was Graphic Designer and he chose it on that basis. The applicant advised that he was unaware that if your occupation was not listed that you could choose the “occupation not listed option.”  Further to this the applicant stated that on his own personal Linkedin profile he listed his occupation as Graphic Designer rather than Graphic Pre-press Trades Worker as he concluded that not many people would understand that position but would more clearly understand the position of Graphic Designer.

21. In submissions to the Tribunal reference has been made to the ANZSCO descriptors for the position of Graphic Pre-press Trades Worker.  The ANZSCO notes that the tasks for the position are as follows:

    a.operating graphic cameras and other photographic equipment to reproduce camera-ready copy onto films, plates and digital output devices

    b.using computer applications to generate images, text, layouts and impositions for print and other visual media displays

    c.operating plate making equipment to reproduce images from film to printing plates, digital output devices and presses

    d.operating computer screen-based equipment for scanning, colour separation, colour correction, masking, creative design, combining, imposing, retouching, and other processes used to transfer copy to film and produce film for plate, digital output and cylinder productions

    e.carrying out digital and chemical proofing from digital systems, and negative and positive films

    f.evaluating printed proofs, checking and correcting them for quality

    g.preparing and exposing carbon tissue for laying on cylinders by transfer method, and developing images

22. The submission notes that having regard to the above position description the only tasks that the applicant did not perform in his role as a Graphic Pre-press Trades Worker with Jogia Diamonds were the tasks associated with physically printed media as the applicant’s role was a digitally based one.

23. The evidence that has been provided to the Tribunal at review includes testimony from the applicant’s colleagues at Jogia Diamonds along with photographs of the applicant’s physical work environment.  This evidence confirms that the applicant was not working as a Graphic Designer for Jogia Diamonds and that during the time of his employment he was engaged in the tasks of Graphic Pre-press Trades Worker. Indeed, the testimony from work colleagues indicates that the applicant’s role was concerned with the capturing and editing of images for use on the Jogia Diamonds website.  The evidence further indicates that the applicant was not engaged in the tasks of a Graphic Designer whilst he was employed by Jogia Diamonds.  Evidence before the Tribunal indicates that the applicant did not have the requisite skill set to engage in the tasks of a Graphic Designer. This is corroborated by the fact that after the applicant was made redundant by Jogia Diamonds he obtained a position with another business as a Graphic Designer but did not work beyond his probation period because he lacked the requisite skill set.

24. The Tribunal finds that this ground particularised in the NOICC has not been made out.  The evidence indicates that the applicant has been working in the role of Graphic Pre-press Trades Worker and that he was not working in the role of Graphic Designer.  This has been corroborated by colleagues, by the applicant, by his former employer and the applicant has given a plausible explanation for his selection of Graphic Designer in his ATO tax returns during the period he was employed by Jogia Diamonds and did not constitute incorrect information.

25. The second component of the NOICC referred to another instance of the provision of incorrect/incomplete information. The delegate in the NOICC noted the following:

    On page 9 of the application form, at the question which asked 'Give details of employment undertaken in the last 10 years,' you provided the following details:

    Position: General Cleaner

    Employer name: Airlite Cleaning

    Country: AUSTRALIA
    Date from: 01 Aug 2009
    Date to: 01 Aug 2010
    Description of duties: General Cleaner

    Is this employment related to the nominated position? No

    Position: General Cleaner

    Employer name: Fremantle Hospital
    Country: AUSTRALIA

    Date from: 01 Aug 2010

    Date to: 01 Dec 2013

    Description of duties: General Cleaner

    Is this employment related to the nominated position? No

    Position: Graphic Pre-Press Trades Worker

    Employer name: Jogia Diamonds International Pty Ltd
    Country: AUSTRALIA
    Date from: 01 Mar 2013

    Date to: 31 Aug 2015

    Description of duties: Graphic Pre-Press Trades Worker

    Is this employment related to the nominated position? Yes

    I consider this answer to be incomplete because it appears that you have been operating a business as an individual/sole trader (ABN: 83 362 003 399, trading as 'RV Productions') since 1 June 2010 to present and you worked as a photographer at RV Productions on a casual basis. Your Linkedln account indicates that you have been working as a photographer for RV Productions from March 2011 to present, and the information provided at interview on 21 May 2018 indicates you were paid for photography services in 2015 or 2016.

26. The delegate concluded in the NOICC that based on the evidence “I consider that you have not complied with subsection 101(b) of the Migration Act as it appears that you have provided incorrect answers to questions on the application form for an Employer Nomination Scheme (subclass 186) visa and in information provided in support of the application, in regards to your employment history.”

27. The applicant in his response to the NOICC and in a statutory declaration provided to the Tribunal dated 13 April 2020 indicates the following.

28. The applicant advised that he is a Hindu and he is also a member of the Bochasanwasi Akshar Purushottam Sanstha (BAPS) and its philosophy.  The applicant advised that he had volunteered for BAPS since he was a child and had been volunteering for the BAPS community since relocating to Perth from India.

29. The applicant advised that he registered an ABN in June 2010. However, the applicant did not operate a business after obtaining the ABN and worked as a cleaner whilst holding a student visa.  This is quantified in ASIC records. The applicant studied a Certificate III in Printing and Graphic Arts and completed a Diploma of Digital Media.  The applicant advised that these courses provided him with skills in animation as well as shooting and editing. The applicant advised that whilst he was studying, he undertook volunteering with BAPS, taking photographs of BAPS events.  The applicant advised that his skills as a photographer began to get noticed, and it was this hobby that led to a connection to Jogia Diamonds and his eventual employment and sponsorship with them a Graphic Pre-press Trades Worker. 

30. The applicant stated that as a result of his volunteering with BAPS as an event photographer he was approached by members of the BAPS community in Perth to take photos for weddings and birthdays and baby showers.  The demand on the applicant’s time on weekends began to become compromised as a consequence of this and to dissuade members of the BAPS community approaching him for his photography services he set up a webpage and Facebook page called RV Productions.  The applicant advised that he added a fee structure to these pages and when approached by community members to undertake free photography, referred people to these pages, which acted as a deterrent for them seeking his services. The applicant advised that he had hoped, once he obtained his permanent residency, that this may lead to him pursuing photography to create a potential second income stream.  These pages were created on 15 February 2015.  The applicant noted he was granted permanent residence on 5 July 2016. The applicant stated that just prior to the grant of permanent residence he helped 3 people with events which he posted on his Facebook page, one a friend’s baby shower and the other being 2 friend’s weddings. The applicant advised that he began to think that he would possibly move in the future to professional photography and on 16 May 2016 he purchased a professional camera to use at BAPS events that could also be used in the future.

31. The applicant advised that after the grant of permanent residence on 5 July 2016 he spoke to a fellow BAPS devotee who was an accountant and he advised the applicant how he could reactivate his ABN and how he apply for the GST on his professional camera purchase, retroactively.  The applicant registered for GST on 3 August 2016, after the grant of permanent residence and this was retroactively applied by the ATO to 1 April 2016.

32. The applicant’s representative in a submission dated 14 April 2020 noted that the applicant commenced to take up photography as a hobby in 2012 when he began to voluntarily take photos of BAPS events. The submission notes that when the Subclass 186 visa application was made the applicant’s photography was still only a hobby.  It was not until the reactivation of his ABN and registering for GST on 3 August 2016, after the grant of permanent residence, that the applicant took significant steps towards turning his hobby into a business.

1. The submission notes that over the period from March 2015 through to August 2016 the applicant only made 9 posts about his photography activities and posted 5 cover photos for his page.  The submission posits that this was consistent with a hobby rather than a sustained effort to work in business.

2. The submission also makes reference to the question of whether a person’s activities fall into the category of business or recreation. The submission notes that the courts have found that there is no single test or list of factors that must be considered but rather a decision should be based on an overall impression of the activity. The submission makes reference to the case of Greig v Commissioner of Taxation [2018] FCA 1084 which looked at the major factors that were relevant to the consideration of whether particular activities amounted to the carrying on of a business. This included whether the activity was with regard to a profit-making purpose, or whether the activity is better described as a hobby or recreation. Further to this the nature, size and scale of activity, the commercial character of any transactions, the repetition and regularity of the activities and whether they involve substantial effort over a sustained period of time, whether the activities are organised in a sophisticated, systematic and business like manner including the existence of a business plan and whether detailed business records have been kept. 

3. The representative submitting that applying the test in Greig that the applicants engagement with photography over the period in question, namely prior to the grant of permanent residence fell within the ambit of a hobby or recreation and that the applicants activity could not be classified as determinative of the carrying on of a business.  The representative asserts that it follows, that the applicant with regard to his work history in his Subclass 186 visa application did not provide incorrect or incomplete answers.    

4. The evidence that the delegate relied upon to find that the applicant provided incomplete information with regard to his work history is recourse to the applicant’s Linkedin profile and the registration of an ABN by the applicant on 1 June 2010.

5. That evidence is countered by the following evidence which the Tribunal places greater weight on. Confirmation that the applicant was working for Jogia Diamonds as a Graphic Pre-press Trades Worker from 2013 until he was made redundant by Jogia in January 2018.  This employment is quantified in ATO tax returns. Indeed, the delegate in the decision record notes that ATO information indicates that the applicant was working as a Graphic Designer for his sponsor Jogia Diamonds from March 2013 to 2016.  As has been discussed the applicant when lodging his annual tax returns, which he did without the assistance of a tax agent or accountant, selected Graphic Designer, the occupation that most closely approximated his role of Graphic Pre-press Trades Worker as this occupation was not available from the ATO drop-down box.  Further to this the applicant did not know that there was an option for an occupation that was not listed in the drop-down box.  The Tribunal places greater weight on the evidence from the ATO pertaining to the applicant’s occupation and statements from his previous employer confirming this over the information contained in the applicants Linkedin profile or his Facebook page.

6. The Tribunal finds that having regard to the applicants photographing of BAPS events and the 3 instances where he took photos for a wedding and baby showers for friends and a work colleague is best characterised as pursuit of a hobby and recreation and not, as has been characterised by the delegate, a fully fledged business operated by the applicant over an extended period of time should have been disclosable in his employment history in his Subclass 186 application.

7. The Tribunal concludes that the ground relied upon by the delegate, namely that the applicant provided an incomplete work history is not correct.  The applicant based on the evidence before the Tribunal, indicates that the applicant did provide a complete disclosure of his employment history to date in his application for a Subclass 186 visa.

8. Based on the evidence before the Tribunal the Tribunal finds that the applicant had not provided incorrect or incomplete information to the Department in his Subclass 457 or Subclass 186 visa application and the Tribunal finds that there was no non-compliance with Section 101 of the Migration Act by the applicant in the way described in the s.107 notice.

9. In the event that the Tribunal was to make a finding that there had been non-compliance by the applicant as particularised in the NOICC, this would be a case in which the Tribunal would exercise discretion and set the cancellation aside.

10. The applicant’s representative provided comprehensive submissions addressing the exercise of discretion dated 14 April 2020. The submission notes the following:

    What is the correct information?

    Mr Vaidh took photographs and videos for several friends and family as well as BAPS events while he held his Subclass 457 visa and while waiting for his Subclass 186 Visa to be granted. On two occasions he received some remuneration for capturing weddings of people he knew.

    What was the likely effect on a decision to grant a visa of the correct information?

    If Mr Vaidh had listed this activity as work on his application form, this would not necessarily have impacted his Subclass 186 Visa application. Performing work outside of his nominated employment would have been a breach of his Subclass 457 Visa conditions, however compliance with previous visa conditions is not a criterion for grant of a Subclass 186 Visa.

    The circumstances in which the non-compliance occurred.

    Mr Vaidh had no intention to run a business during the time before his Subclass 186 Visa was granted and did not consider himself to be working when undertaking activities as a photographer or videographer. He saw no reason to include these activities in his employment history and the alleged non-compliance was therefore inadvertent. Further, the question on the application form does not ask about business history or work history, but rather employment history. There was no employment relationship involved in relation to Mr Vaidh’s activities – if his activities constituted a business then he was a sole trader performing work under his own name. It is therefore ambiguous whether work performed for one’s own business is required to be included as ‘employment’ in the employment history section of the visa application form.

    The present circumstances of the visa holder.

    Mr Vaidh has lived in Australia for over ten years. He was in the process of applying for Australian citizenship before his visa was cancelled. He considers Australia his home and is well-integrated into the Australian community: see annexure ‘A’, paragraph 27.

    The subsequent behaviour of the visa holder concerning obligations under Subdivision C of Division 3 of Part 2 of the Act.

    Mr Vaidh has provided consistent, honest and comprehensive information in relation to his obligations under Subdivision C of Division 3 of Part 2 of the Act. Any other instances of non-compliance by the visa holder known to the Minister 50. If Mr Vaidh’s photography and videography activities were ‘work’, then as noted above he was in breach of condition 8107 of his Subclass 457 visa. However, the breach was inadvertent and minor as he did not believe his activities to be employment, and his activity was very infrequent.

    The time that has elapsed since the non-compliance.

    The alleged non-compliance occurred on 1 September 2015, close to five years ago. This is a significant period of time to have elapsed, during which Mr Vaidh has solidified his ties to Australia as a permanent resident.

    Any breaches of the law since the non-compliance.

    There is no evidence that Mr Vaidh has breached any laws since the alleged non-compliance. Any contributions made by the holder to the community. Mr Vaidh continues to volunteer regularly to capture BAPS events, and makes regular donations to causes including drought, flood and bushfire appeals, as well as contributing to tree plantation, clean-up days and food can collection: see Annexure ‘A’, paragraph 28.

    Other relevant matters for consideration.

    Mr Vaidh’s wife, Priyankaben Ronakkumar VAIDH (Ms Vaidh), held a visa as a member of Mr Vaidh’s family unit and this visa was consequentially cancelled upon cancellation of Mr Vaidh’s visa. If Mr Vaidh’s visa is reinstated, Ms Vaidh will also be able to regain her visa status. She has also lived in Australia for a considerable period of time and has built a life in Australia with Mr Vaidh.

    Ms Vaidh’s citizenship application had been approved and she was close to attending a citizenship ceremony when her visa was cancelled.

    It would be extremely difficult for Mr and Ms Vaidh to return to India after so much time living in Australia, with over three years as permanent residents who had a reasonable expectation that they would be able to live in Australia indefinitely.

    Australia is a signatory to the United Nations Convention on the Rights of the Child (CROC). Article 3 of the CROC states:

    In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 58. Mr Vaidh’s daughter Bhakti is an Australian citizen. If he and Priyanka are unable to remain in Australia, Bhakti will leave with them and will be denied the right to live in and form a bond with the country of her citizenship. It is in Bhakti’s best interests that she be able to stay with her family in Australia.

11. The evidence before the Tribunal indicates that the applicant has lived in Australia for 10 years. The evidence before the Tribunal indicates that the applicant during this period has complied with the conditions attached to the visas that he has held.

12. Evidence has been provided to the Tribunal at review pertaining to the applicant’s successful integration into the Australian community.

13. The evidence indicates that the applicant has been cooperative in his dealings with the Department and has given a consistent thread of evidence with regard to the purported non-compliance with s.101 of the Act.

14. The alleged non-compliance dates back to September 2015, almost 5 years ago.

15. There is no evidence of any breach of law since the applicant has resided in Australia.

16. The consequential cancellation of the applicant’s wife’s visa will have a detrimental impact on her, as she has resided in Australia for an extended period of time, and, has spent over three years in Australia whilst holding permanent residence status. Prior to the cancellation of the applicant’s visa, the applicant’s wife was awaiting the conferral of Australian citizenship.

17. The applicant’s daughter is an Australian citizen and having regard to the UN Convention on the Rights of the Child (CROC) which requires that the best interests of the child will be a primary consideration, the Tribunal would apportion significant weight to this consideration in favour of not cancelling the applicant’s visa.

18. Cumulatively having regard to all of these considerations the Tribunal would set the cancellation of the applicant’s visa aside.

    DECISION

19. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 186 -  Employer Nomination Scheme (Temporary Residence Transition) visa.

    John Cipolla
    Senior Member