VISUVANATHAN (Migration)

[2019] AATA 895

VISUVANATHAN (Migration) [2019] AATA 895 (7 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr CHANDRASEKARAN VISUVANATHAN
Miss Megarubine Sekar
Miss Kavinitha Chandrasekaran

CASE NUMBER:  1806476

HOME AFFAIRS REFERENCE(S):           BCC2017/4375626

MEMBER:Alan McMurran

DATE:7 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 07 February 2019 at 12:28pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Business (Long Stay)) – ground for cancellation – ceased employment for more than 90 days – consideration of discretion – underpayment of wages – long hours of work – no formal action against the sponsor – abandoned employment voluntarily – purpose of a Subclass 457 visa – substantial breach over lengthy period – not subject of current approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 March 2018 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 457 (Business (Long Stay)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the visa was subject to work condition 8107 which was not complied with as the applicant had ceased employment with his sponsor for a period exceeding 90 consecutive days and no longer met the requirements of condition 8107 (3)(b). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. 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 other applicants’ visas were 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 those other visas 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 them.

   Background

4. The applicants appeared before the Tribunal on 23 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, Mrs Sekar. The hearing was conducted with the assistance of an interpreter in the Tamil (Tamil Nadu) and English languages. The Tribunal explained the process to the applicants and that it would be necessary to consider all material on the Department’s file, the applicant’s Tribunal file and the submissions made at the hearing, before making a decision.

5. The applicant is a 33 year old citizen of India and was sponsored to work in the skilled occupation of a restaurant manager (ANZSCO 141111). The applicant is married with a 3 year old child. The applicant’s brother and parents are in India.

6. The applicant first travelled to Australia on a tourist visa in August 2014.The applicant obtained sponsorship and a 457 visa for one year from 26 February 2015. This was renewed for four years on 20 July 2016. The sponsor was the same in both cases, a café restaurant Samosa King Australia Pty Ltd trading at Doonside in Sydney as the Samosa King (the sponsor). The applicant worked at the restaurant for the sponsor from March 2015 until July  2017 on a salary of $54,400 per annum. Prior to that the applicant had been working in Singapore for approximately 18 months in the food industry.

7. The applicant returned to India on 27 April 2017 for his brother’s wedding and remained there for three months until returning to Australia on 17 July 2017. The applicant was then in dispute with the sponsor over claims for underpayment of wages and did not return to work at the restaurant. On 15 September 2017, the applicant received another offer of employment from Haven Function Centre and Restaurant which was not a visa sponsored position and the applicant did not take up the offer.

8. The applicant’s dispute with the sponsor over wage payments remains unresolved. According to his tax records, the applicant was paid less than half his agreed and contracted salary entitlements by the sponsor. The applicant explained that the sponsor’s accountant had lodged the applicant’s tax returns for 2015 and 2016. Those returns initially showed the applicant had received the agreed salary and owed PAYG tax which had not been paid. The sponsor’s accountant subsequently amended the applicant’s tax returns for 2015 and 2016, so as to reduce the salary actually paid and the applicant’s tax liability. The applicant says he was unaware of the lodgement of amended returns by the accountant until after he returned from India in July 2017.

9. The applicant explained that although he was in dispute about his work conditions and wages, he was reluctant to take the matter further than by simply arguing with the sponsor, for fear that he would lose his visa sponsorship. He sought no advice and took no action against the sponsor.

10. In an email to the Tribunal on 26 October 2018[1], the applicant says:

    “I do agree that I have ceased working long time ago but it’s because of my employer under paid wages and asked work long hours without pay bills threaten to withdrawn my sponsorship”.[sic]

    [1] Tribunal file at f 71

11. The applicant was asked why he sought no advice at the time. The applicant said he had contacted the ATO who told him the matter had been dealt with by the accountant. The applicant said he had raised the issue many times with his employer, who informed him that trading was not good and they did not have funds to pay all his wages. The sponsor informed him it would be sorted out when he came back from India in July 2017.

12. The applicant approached the sponsor in about March 2017 about taking leave. The applicant said he wished to go to India for his brother’s wedding and wanted an extended period of up to 2 months for leave, before returning to Australia. The applicant said this was agreed by the employer who asked him to return by the end of June 2017. The applicant did not return until the end of July 2017, as he said he had been ill in India and was unable to return before then. He said he had informed the employer by telephone from India about his absence due to illness.

13. On his return to Australia, the applicant said he was in continual contact with the sponsor in the period July and August 2017. The applicant explained that for the first time he saw the amended personal taxation returns lodged by the accountant in about June 2017 (while the applicant was absent overseas) and that his salary had not in fact been adjusted to the correct amount by the sponsor. The tax returns showed payments of approximately $10,279 paid in 2015 and $23,899 paid in 2016, in lieu of the declared payments for each year of $16,738 and $51,221 respectively. The applicant’s agreed annual salary at the time was $54,400. The applicant said that he had repeatedly approached the sponsor about making good his wage shortfall.

14. The applicant also confirmed that he did not continue to work at the restaurant after his return, and has not done so since he left for India on leave in April 2017. The applicant explained that he had been prepared to return to the workplace, once his salary issue had been resolved, but that he had taken no steps and sought no advice as to how to rectify the problem due to his fear of upsetting the sponsor, and the sponsor’s threat that he would have the sponsorship “withdrawn”.

15. The sponsor advised the Department by letter on 7 September 2017 that the applicant “is no longer working with us” and that the applicant “stopped working for Samosa King from 7 March 2017”.  On 23 January 2018, the Department sent the applicant a Notice informing him it was considering cancellation of the applicant’s 457 Temporary Business Entry class UC visa.

16. The applicant said that he had obtained no further employment since leaving the sponsor to go back to India for the extended holiday in April 2017. He said the first time he was aware he no longer had any employment opportunity with the sponsor was in January 2018 when he received from the Department the Notice of intention to consider cancelling his 457 visa. He explained that until that time he had held out hopes the wage issue with his employer would be resolved and he would be able to return to employment with the sponsor. He said he had not resigned and the sponsor had not served him with a termination of employment notice.

17. The Tribunal asked whether the applicant understood that it was a condition of the visa that he continue to work for the sponsor and that if for any reason his employment ceased, that any period of unemployment did not exceed 90 consecutive days. The applicant said he was aware of the work condition requiring him to stay with the sponsor, but did not fully appreciate the relevance of the 90 days included in the condition. He thought if he was able to return to work and reached agreement with the sponsor about his wages everything would be restored.

18. This explanation is not entirely consistent with the fact the applicant as early as September 2017 was seeking employment elsewhere. The applicant produced a letter dated 15 September 2017 from Haven Function Centre and Restaurant (Haven) at Liverpool in Sydney[2]. The letter offers the applicant a position as restaurant manager, “subject to employment reference check and the medicals”. The letter makes no reference to the employer applying for business sponsorship and a nomination for the applicant.

    [2] DIBP file BCC2017/4375626 at f 24

19. The Tribunal asked whether the applicant had realised this offer could not be accepted as it was not from a standard business sponsor and there was no nomination approved for the position by that employer. The Tribunal understood from the applicant’s response that he was unaware at the time that he could not accept another position from an employer who was not a standard business sponsor. According to the applicant, he had no work as at September 2017 and needed employment. This did not eventuate and he declined the offer from Haven.

20. The Tribunal asked about the proposal for an ENS 186 visa sponsorship by the sponsor in April 2017. The applicant said that he had discussed this with the sponsor before he left for India and the sponsor had agreed to lodge the nomination application. In support of that view, the applicant relied upon a contract of employment dated 3 April 2017[3] signed by him. The offer letter was not signed by the employer or anyone on behalf of the sponsor. The Tribunal asked the applicant to comment in relation to that contract on the basis that it was the same contract the applicant had signed when he commenced employment in 2015 and again in 2016 when his second 457 visa issued, and made no reference to the issue of a visa. The offer letter referred to a “probationary period” which had already been completed by the applicant in 2015 and was for the same salary ($54,400) which the applicant had signed up for in 2015. The Tribunal asked the applicant to comment on the basis that it was not in fact an offer for employment after the grant of a 186 visa, if that were to issue, and that it was simply a generic letter of employment and not related to a specific ENS application. The applicant in response conceded that was probably the case.

    [3] T file at f 24

21. The Tribunal put to the applicant that the sponsor had denied lodging an application for approval nominating him for a 186 visa for the position of restaurant manager[4]. The Tribunal further noted that the sponsor’s representative had said the application had been lodged which was acknowledged by the Department for processing on 3 April 2017. The representative had then terminated his appointment in September 2017 without the application proceeding any further and the Department’s file shows that the sponsor did not proceed with the application. The sponsor had replied to the Department’s request on 11 February 2018[5] stating “We have not lodged any Employer Nomination Scheme – subclass Visa 186 on 03 April 2017 for (the applicant)” and “(the applicant) had ceased the employment on 07 March 2017 by himself and did not come back”. The applicant responded that he did not know what had happened to the ENS nomination application.

    [4] DIBP file at f 30

    [5] Ibid at f 30

22. The Department file revealed that on 13 February 2018, the Department noted the sponsor “has confirmed that this client ceased working for them on 7 March 2017, and they are unaware of an ENS nomination lodged for this client”.[6] The “client” referred to was the applicant. The applicant said in response that he had not followed up that application and that he had assumed it was being pursued by the sponsor.

    [6] T file 1806476 at f 51

23. The Tribunal put to the applicant this was not probable because of the dispute between the applicant and the sponsor over his employment, and the fact the applicant had not worked for the sponsor since April 2017. The applicant however insisted that it was the case as he had signed the employment contract letter dated 3 April 2017 with the full expectation the ENS nomination would proceed, and was in fact being proceeded with by the sponsor notwithstanding their dispute. The applicant confirmed when asked by the Tribunal that he had never heard anything further about the ENS nomination and application after April 2017 and he himself had not followed it up.

24. The Tribunal asked the applicant why so much time had elapsed from September 2017 when he had considered another employment offer, without any other steps having been taken by him to find employment. The applicant said he had not really understood until January 2018 when he received the Department’s Notice of intended cancellation, that he needed to find another job.

25. At that time, the applicant said he then understood he had no employment with the sponsor, which had been terminated and no ongoing ENS application by the sponsor. The applicant said he did not know how to deal with the problem other than to blame the sponsor for his troubles, and made no attempt at other employment until he received advice from a representative in about September 2018. He said he was advised that the visa would be cancelled unless he could find another sponsor. The applicant said he appreciates the need to find an employer who could sponsor him and asked the Tribunal for an extension of time for up to 2 months or longer to enable him to do so. The Tribunal agreed to allow the applicant a period of 7 days to provide reasons why an extension of time should be granted and to seek advice in the meantime. The applicant was requested to respond to the Tribunal by 31 January 2019.

26. The applicant was asked to comment in relation to whether he agreed there were grounds arising for cancellation based on a breach of the visa condition 8107 that he had ceased his employment for a period in excess of 90 days. The applicant conceded this was the case, although caused by his sponsor, and was asked to comment in relation to whether or not the Tribunal should exercise its discretion not to cancel the visa. These aspects are referred to below in consideration of the exercise of discretion. The applicant submitted that the visa should not be cancelled.

27. On conclusion of the hearing, as indicated above, the Tribunal agreed to provide the applicant a short period to make submissions as to why a further extension of time should be granted, and about any further nomination and /or job opportunity.

28. The applicant responded with a Statutory Declaration made 31 January 2019. The submission asks for “appropriate time” to allow the applicant to be successfully nominated by Limbaj Pty Ltd, for a second time, and then to apply for a 482 visa, if the nomination is successful. No specific time period was proposed. A statutory declaration was also provided by Nehir Thaker dated 31 January 2019, on behalf of the proposed nominator, Limbaj Pty Ltd. It proposes that a further nomination is being made for the applicant for the position of restaurant manager and has offered a contract to the applicant. It also asks the Tribunal for some time to allow the nominator to complete their job search inquiries “to satisfy both the department and ourselves that a search for a candidate has been deemed appropriate.”

29. On 4 February, the Tribunal received an email from the applicant with attachments, being proposed advertisements for a job application to meet LMT requirements for a 482 visa nomination application. There were no other details of the proposed nomination application.

30. 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

31. 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?

    S.116 (1)(b) - non-compliance with conditions

32. 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 requires that the visa holder must work only in the occupation listed in the most recently approved nomination and if the holder ceases employment, the period during which the holder ceases employment has not exceed 90 consecutive days.

33. In the decision to cancel the visa, the delegate found the following: –

    ·The most recently approved nomination was that with the sponsor, approved 20 July 2016;

    ·The applicant was granted a 457 visa for the purpose of working for the sponsor in the nominated occupation (restaurant manager);

    ·That employment with the sponsor terminated effective 7 March 2017;

    ·The applicant disputed the termination as he had not resigned and received no notification from the sponsor;

    ·The dispute concerned unpaid wages which claim the applicant has not pursued;

    ·The applicant left his employ before attending his brother’s wedding in India;

    ·The applicant had signed an agreement dated 3 April 2017 when an ENS application was lodged by the agent, but without the knowledge of the sponsor;

    ·The applicant produced no evidence of working for the sponsor after 7 March 2017, notwithstanding the applicant’s claims that the employment had continued and that an ENS application had been made;

    ·The applicant has not secured a new nomination;

    ·The applicant had ceased employment with the sponsor for a period exceeding 90 consecutive days, as at the date of the Notice of intention to consider cancellation on 23 January 2018, and the ground for cancelling the visa arose;

    ·In the exercise of discretion, that the grounds for cancelling the 457 visa outweighed the reasons for not cancelling.

34. The Tribunal has had regard to the information provided by the applicant. The Tribunal wrote to the applicant inviting comment and responses on 12 October 2018. The applicant sought and was granted an extension of time to respond to that invitation by 2 November 2018. A further extension of time request from the applicant made by email on 26 October 2018[7] explained that the applicant wanted “at least 4 weeks of time so could gather all necessary evidences to prove my case” (his unfair dismissal claim). That request was refused.

    [7] T file at f 71

1. The applicant provided a bundle of documents, some of which were previously provided to the Department. The applicant included bank statements for the period July 2016 to June 2017, his most recent taxation return for financial year ending 30 June 2017 (showing taxable income of $25,501), receipt for a new nomination application dated 8 November 2018 by Limbaj Pty Ltd, and a statutory declaration made 2 November 2018.

2. At the hearing, the applicant confirmed that the recent nomination application by Limbaj Pty Ltd was refused on 12 November 2018 due to insufficient supporting information of labour market testing. There was no review of that decision sought and instead the nominator has said it will make a further nomination of the applicant, as referred to above in the post-hearing submissions, after it has advertised the position. There is currently no approved nomination or nomination pending or review outstanding of the refused nomination. 

   Findings

3. The Tribunal is satisfied there is no current or outstanding application nominating the applicant for employment. The Tribunal is further satisfied on the evidence of the applicant at the hearing that he is not currently employed and that he has not returned to his employment with the sponsor following his return to Australia on 17 July 2017, after a period of extended leave.

4. The Tribunal accepts and is satisfied that the applicant has a dispute with his former sponsor about the terms and conditions of his employment and in particular for unpaid wages including superannuation. The Tribunal is also satisfied that the applicant has taken no steps to prosecute a claim against the sponsor, other than by enquiry made by the applicant to the Fair Work Ombudsman on the Internet on 10 March 2018.[8]

   [8] T file at f 170

5. The Tribunal is satisfied that the applicant’s ATO evidence discloses he was not paid the agreed salary for any of the years of employment by the sponsor in 2015, 2016 or 2017. The Tribunal is satisfied that by March 2017, the applicant’s claims for unpaid wages had not been resolved. The Tribunal finds that on the evidence, the applicant determined to travel to India for an extended period, leaving his employ, and intending to take up the issue of the unpaid wages and conditions further with the sponsor upon his return.

6. The Tribunal finds that the applicant left the employment in July 2017 and has not returned to work for the sponsor. The Tribunal is unable to determine whether the sponsor terminated the employment as stated in March 2017, or whether the applicant effectively abandoned the employment after his return in July. Regardless, on the evidence, the Tribunal is satisfied that the applicant is in breach of the visa condition 8107 on the basis that having ceased employment, the period during which the applicant has ceased employment exceeds 90 consecutive days since July 2017.

7. The Tribunal notes the discussion with the applicant at the hearing referred to in the background above, and finds it is satisfied that the applicant has remained unemployed since July 2017 and is not the subject of another approved nomination or outstanding application for approval of a nomination. Although the applicant has now found an employer willing to sponsor him, the Tribunal finds that there is no application for another sponsorship under the new TSS scheme introduced 1 March 2018, or for a 482 visa.

8. 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

9. 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’.

10. The Department procedural guidelines[9] constitute no more than an administrative advisory guide to decision makers. The “guidelines” are just that, and are not legally binding considerations. They are however a useful starting point in considering the proper exercise of discretion and what matters the Tribunal may and can take into account in relation to submissions received and other factual considerations relevant to the particular circumstances.

    [9] PAM 3

11. The applicant has been present in Australia on a 457 subclass visa designed for workers to occupy skilled positions on a temporary basis. The applicant’s purpose in Australia was to work on a temporary basis in the skilled occupation of restaurant manager. But for the visa cancellation, the applicant’s visa would have continued until 20 July 2020. The Tribunal is satisfied the applicant has worked in that occupation continuously and since the date of his first 457 visa granted on 26 February 2015 until July 2017.

12. The Tribunal further accepts that the applicant has encountered difficulties with the sponsor throughout that period. Those difficulties as recounted by the applicant relate to the hours of work and the non-payment of wages and superannuation entitlements. The Tribunal is also satisfied that notwithstanding those difficulties, the applicant has taken no action against the sponsor nor informed the Department of those issues nor sought alternative employment, other than briefly in September 2017 as referred to above with an offer from Haven which the applicant declined.

13. At the hearing, the applicant stated he had first come to Australia as a tourist and decided that there was an opportunity to obtain work here and that he wished to stay. He was referred to the sponsor by other Australian friends whom he knew. The Tribunal is satisfied however that the applicant has not demonstrated any other compelling need either to travel to or remain in Australia, other than to meet his desire to remain here to work. The applicant said that he came from an agricultural family in India and that opportunities there were very limited. He said he did not wish to return on the basis of difficulties in finding suitable employment there.

14. The Tribunal is not persuaded by that submission not to cancel the visa. The integrity of the visa program relies upon suitable workers being found for skilled occupations on a short-term basis, and not for those temporary workers remaining permanently because employment opportunities are better in Australia than in their country of origin. The Tribunal finds as a result that the applicant has not provided any compelling need to travel to or remain in Australia.

15. The Tribunal finds that the breach of the visa condition is significant. The condition allows only a 90 day consecutive period during which the applicant has ceased employment. Accepting that the applicant did not return to work after 17 July 2017, the Tribunal is satisfied that the period involved includes 232 days from 18 July 2017 to cancellation on 7 March 2018. There is no evidence of further employment since cancellation.

16. The Tribunal also finds that, despite the submissions made on 31 January 2019, there is no reasonable prospect of further employment by the applicant in the near future in the skilled occupation nominated, with no current lodged or approved nomination for a new 482 visa in place.

17. The Tribunal notes there has been no other evident non-compliance by the applicant with the visa conditions attached to his 457 visa.

18. The Tribunal also finds however that the applicant has failed to mitigate his circumstance in any meaningful way either by finding suitable alternative sponsorship and employment or seeking advice and assistance. Instead, the applicant has sought to place the entirety of his unemployment circumstance at the feet of his sponsor. The Tribunal is satisfied that at least by July 2017, if not earlier, the applicant was aware of the wage dispute with his employer who was not meeting the agreed salary entitlement, and not having resolved that dispute, there is no evidence that the applicant took any meaningful steps over what is now a significant period to comply with the visa condition 8107(3)(b).

19. The applicant said at hearing that it would be difficult for him, his wife and child to return to India. There was no suggestion however that they would not remain together. The Tribunal accepts that there is a period of dislocation and hardship occasioned by having to relocate between countries. The applicant’s wife is not working and is a full-time carer for their 3-year-old child and there is no suggestion she will lose employment. The applicant made no other submissions at hearing about hardship, or reasons why it would be difficult for him to return with his family. He said that he prefers his child to remain and be educated in Australia where the child and the family will have more opportunities. The applicant however was unable to point to any other specific difficulty or hardship which might be caused.

20. The Tribunal notes that the circumstances giving rise to the cancellation are in part the responsibility of the sponsor, who the applicant maintains has failed to pay his proper entitlements. That may be true, but the applicant himself has failed to resolve that issue or take steps which were available to him such as bringing a claim against the employer while still employed and under the Fair Work Act, which provides remedies for financial compensation as well as reinstatement. The applicant could have sought advice but elected not to do so and the Tribunal is not persuaded by the submission that the employer threatened to withdraw the sponsorship, when there is no evidence which supports that claim and the evidence points more to the fact that the applicant abandoned the employment voluntarily because he was unable to compel the sponsor to pay his lawful entitlements.

21. The Tribunal finds that there is no other fact or circumstance relating to the past or present behaviour of the visa holder which might weigh against him in favour of cancelling the visa.

22. Upon cancellation, the applicant’s wife and child will be the subject of consequential cancellations under section 140. This however is an inevitable consequence of cancellation where the weight of factors is in favour of cancellation rather than not. The Tribunal has taken this into consideration, having heard from Mrs Sekar at the hearing. She confirmed the parties will face difficulties returning to India, but again there was no suggestion they would not remain together as a family. The Tribunal notes the applicant is still young and both he and Mrs Sekar are experienced and qualified. Mrs Sekar is an engineering technologist, and although the Tribunal accepts that finding employment might be difficult, there is no evidence that either party will be unable to do so.

23. The applicant currently holds a Bridging Visa (BVE 050) which entitles him to remain in Australia while he completes his affairs and / or awaits the outcome of this review application, and the BVE rectifies his current status so that he is not unlawful.

24. If the applicant’s visa remains cancelled, and if he does not hold any other visa, the applicant will not become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The BVE 050 will provide him an opportunity to depart in a lawful fashion and without detention.

25. As the applicant is considering making an application for a Skilled visa, subject yet to a further nomination, he may be eligible to apply for an extension of his Bridging visa. There is no suggestion that the applicant will be indefinitely detained. The applicant however will have to go offshore pursuant to section 48 of the Act if he intends to make a further substantive application. In that regard, the applicant will be subject to the relevant public interest criterion, including the possibility of a three-year bar before making a further application.

26. The Tribunal has had regard to the fact the family includes a 3-year-old child. There is no suggestion that the family will not remain together as an integral unit and which is clearly in the best interests of the young child.

27. The interests of the child are paramount and regarded by the Tribunal as a primary consideration. In weighing up the exercise of discretion, the Tribunal has considered whether it would be better for the child to remain in Australia either with the mother, or with another person, or in some other situation which has not been proposed. The applicant has made no suggestions in that regard, and the Tribunal notes that the applicant has both his brother and parents still residing in India to whom he may return and with whom the family may reside.

28. There is no information available to the Tribunal that the family circumstances are such there would be any danger caused to the child or circumstance which might be seen as adverse to the child’s interests, other than the submission that the child might have a more successful and better future with opportunities in Australia. The Tribunal is not persuaded that submission should outweigh the reasons to cancel the visa.

29. The Tribunal has taken into account and carefully considered the matters discussed at hearing, noting the applicants were not assisted by any representation on the day, but have had the opportunity for advice from the representative beforehand and since the hearing.

30. The exercise of the discretion must be carefully weighed and the Tribunal has endeavoured to take account of all the matters raised and submissions made concerning the applicant’s present circumstances.

31. Matters which weigh in the applicant’s favour include the claimed behaviour by the sponsor and the loss of employment, the lack of advice sought or obtained by the applicant initially, the dislocation and inconvenience caused by relocation, and the fact the applicant has otherwise complied with all his visa conditions and persevered in that regard for the period from 2015 until 2017.

32. Matters weighing against the exercise of discretion in favour of the applicant include the substantial breach of the condition over a very lengthy period where the applicant has remained unemployed, the failure of the applicant to mitigate the circumstances by seeking alternative sponsorship and/or other employment, or by taking any action to which he may be entitled against the sponsor, and the refusal of the very recent nomination application by Limbaj Pty Ltd in November 2018 so that the applicant is not subject to a current approved nomination or any review in respect of an application to refuse a nomination.

33. Weighing up all the factors, the Tribunal is not persuaded and finds this is not a case where its discretion should be exercised so as not to cancel the visa. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

34. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

35. The Tribunal has no jurisdiction with respect to the other applicants.

    Alan McMurran
    Member