Wijayasinghe (Migration)

[2019] AATA 2912

Wijayasinghe (Migration) [2019] AATA 2912 (31 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rasika Niroshana Wijayasinghe
Mrs Deepika Priyadarshani Kumari Samarakoon Samarakoon Mudiyanselage
Miss Shiny Chanara Wijayasinghe

CASE NUMBER:  1810983

HOME AFFAIRS REFERENCE(S):           BCC2017/3893338

MEMBER:Amanda Mendes Da Costa

DATE:31 May 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 other applicants.

Statement made on 31 May 2019 at 10:10am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – genuine position – Accountant (General) – site visit – office premises non-existent – illegitimate scheme creating positions that did not genuinely exist – consideration of discretion – untruthful to the Department – knowing participation in a scheme to circumvent Australia’s migration laws – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), r 2.43

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 13 April 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).

2. The delegate cancelled the visa under s.116(1)(g) as they were satisfied that a prescribed ground for cancelling the visa applied to the applicant on the basis that pursuant to r.2.43(1)(kb)(iii) the position associated with the nominated occupation for the applicant was not genuine. 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.

4. The applicants appeared before the Tribunal on 5 December 2018 to give evidence and present arguments.  

5. Although the applicants were represented in relation to the review by their registered migration agent, he did not attend the hearing.  The applicants advised the Tribunal that they were prepared to proceed with the hearing in the absence of their agent.

6. 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

7. 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)(g). 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?

8. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(kb)(iii) is relevant.

9. The Tribunal notes that the standard business sponsor who nominated the applicant in the most recently approved nomination for his visa was Business Repair Pty Ltd (the sponsor) whose nomination was approved on 24 March 2015 for the applicant to be employed in the occupation of Accountant (General) ANZSCO Code 2211111.

10. In the nomination application (for the Subclass 457 visa) lodged by the sponsor on 24 December 2014, the sponsor declared that the street address where the applicant would be employed was Level 1, 2 Adelaide Street, Cremorne, Victoria, 3121.

11. On 2 June 2015 the applicant was granted a subclass 457 visa, to work with the sponsor in the nominated position.

12. On 21 June 2016 the sponsor lodged a nomination application to nominate the applicant for permanent appointment in association with his subclass 186 visa application.  In the sponsor’s nomination application, it declared that its head office address and the address where the applicant would be employed was Level 2, 1 Riverside Quay, Southbank, Victoria.

13. On 17 August 2017, Departmental officers visited the premises at Level 2, 1 Riverside Quay, Southbank.  The officers observed that the premises were a residential building with no general public access to level 2.  The assistant manager of the building advised that there were no businesses registered to operate from the building.  On 25 August 2017 the building manager advised the Department that no businesses were operating from that building.

14. Departmental officers visited premises at Level 1, 257 Chapel Street, Prahran, Victoria, on 24 August 2017.  This was the address the sponsor provided to the Australian Securities and Investment Commission on 30 March 2017 as its principal place of business.  The Departmental officers noted during their visit that the entire first floor was available for lease.

15. The Tribunal notes that during its investigation of the sponsor, Departmental officers were unable to locate any office for the sponsor or the location where any of its 14 full time staff were working.

16. On 11 October 2017 the Department wrote to the applicant, advising that officers of the Department recently concluded a monitoring audit of his sponsor and as a result of an adverse finding against the company, its role as a standard business sponsor had been cancelled and it had barred from making future applications for approval as a sponsor or from sponsoring more people under its existing approval until 10 October 2022.  The Department further advised the applicant that this bar may prevent Business Repair Pty Ltd from sponsoring the applicant under any further temporary or permanent visa programme.  The Department informed the applicant that as Business Repairs Pty Ltd was no longer his sponsor; his visa may also be cancelled.  

17. On 29 November 2017 the Department notified the applicant of its intention to cancel his visa (NOICC) and invited him to respond in writing.

18. On 6 December 2017 the applicant responded to the NOICC in writing.  He stated that he had not done anything wrong and that his sponsor had failed to advise the Department of a change of office location and to prove their employee’s work.  The applicant said that he was shocked that his employer’s mistake could result in him and his family being forced to leave Australia.

19. In his response, the applicant further stated that during the sponsor’s move from its office in Southbank to a new one at 600 Lonsdale Street, Melbourne, he was carrying out his full time duties as an accountant and was working with clients and using his laptop computer to remotely access their files and systems.

20. In their decision, the delegate noted that when the Department was unable to locate the sponsor’s business at three different locations, it wrote to the sponsor seeking an explanation for the incorrect information provided about is business address.  The sponsor stated that it was in the process of establishing new offices located at 600 Lonsdale Street, Melbourne.  The delegate further noted that investigations by Departmental officers had shown that 600 Lonsdale Street, Melbourne is a residential property and accordingly the sponsor’s business could not have been located at that premises.

21. On 10 October 2017 the Department made a decision to bar the sponsor from further business sponsorship for a period of 60 months. From 10 October 2017 to 10 October 2022 for providing incorrect information about the applicant’s nominated place of work.

    Applicant’s evidence

22. The applicant is a national of Sri Lanka.  He arrived in Australia in 2009 on a student visa, having already completed a Bachelor of Commerce degree in Sri Lanka.  He completed a Masters of Accounting at Latrobe University, graduating in 2012.  In 2013 he completed a Skilled Migration Internship Program – Accounting, at the Australian Institute of Practical Accounting.

23. Whilst he was studying the applicant obtained part-time employment at the Footscray whole fruit and vegetable market.

24. Throughout 2014 the applicant was actively seeking employment as an accountant.  In late 2014 he secured an offer of employment from Business Repair Pty Ltd, a company providing general accountancy services.  He commenced employment with the company in June 2015, following the grant of his subclass 457 visa.  He was employed in the position of Accountant (General) ANZSCO Code 2211111.

25. During his employment the company’s offices were situated at Level 1, 2 Adelaide Street, Cremorne, Victoria.  Although the applicant was based at these offices, he spent most of his time visiting clients at their premises and working from them.  Apart from the applicant the company employed approximately 24 other employees and shared premises with another company, BNV Accounting.    Although BNV Accounting shared the same management as Business Repair Pty Ltd, it had different clients and focused primarily on providing insolvency advice to its clients.

26. The applicant never worked at or visited premises at Level 2, 1 Riverside Quay Southbank or Level 1, 257 Chapel Street Prahran. In June 2016 Business Repair Pty Ltd gave him a letter regarding its lodging of an application to nominate the applicant for a permanent appointment in association with his subclass 186 visa application.  The address given for the company on that letter was Level 2, 1 Riverside Quay, Southbank.  In answer to questions from the Tribunal the applicant said that he asked the Chairman of the company, Paul Whiteman about that address, given he was not aware that Business Repair Pty Ltd had any other office than the one at the Cremorne address.  Mr Whiteman told him that the company was proposing to move its office to Southbank.

27. The applicant explained that he didn’t take the matter any further with Mr Whiteman as he was relying on the company for his employment and visa, and had a family to support.

28. The applicant had not heard about the Chapel Street address until he read the NOICC, where it was mentioned.

29. For the first year of his employment by Business Repair Pty Ltd, the applicant was paid a before tax salary of $65,000 and for the second year a before tax salary of $68,000.  For the first year and a half of his employment, his salary was deposited into his bank account by his employer and at the end of the first financial year of his employment the company provided him with a PAYG payment summary and he lodged a taxation return with the Australian taxation Office (ATO).  After a year and a half into his employment with Business Repair Pty Ltd, his salary was paid to him in cash, he was not provided with any PAYG payment summaries and he lodged no further taxation returns. He was also aware that other employees were paid in cash.  His weekly salary was always paid in a timely manner, after the company commenced paying him and other employees in cash, but he did receive his full salary entitlements.

30. In answer to a question from the Tribunal, the applicant said that no explanation was given to him by his employer for the cash payments, but he spoke to the company’s senior accountant, Andrew Dunner, about the matter.  Mr Dunner treated the matter “as a joke” and told him not to worry as he was still getting paid the same amount of money.  The applicant considered that he had been used by his employer and couldn’t say anything about the situation as he was dependent on his employer for employment and a visa and had a wife and young child to support.

31. In late 2017 and after receiving the NOICC from the Department, the applicant resigned his employment with Business Repair Pty Ltd.  He spoke to Mr Whiteman and Mr Dunner about his resignation.  They told him that the Department’s findings regarding the company’s address and the lack of genuineness of his position were based on a misunderstanding and that they wanted to fix things up.   The applicant thought they had clearly done something wrong and was totally disappointed in them. 

32. Following the hearing the applicants provided the Tribunal with the applicant’s bank statements for the periods 1 October 2015 to 31 December 2015 and 1 April 2016 to 30 June 2017.  In his accompanying email to the Tribunal the applicants explained that these statements showed that the applicant’s salary from Business Repair Pty Ltd for 2015, 2016 and early 2017 was deposited into his bank account.  However they noted that the salary payments were not regular because the applicant’s employer gave him his salary in cash packets as well.

33. The applicants further provided copies of the applicant’s PAYG payment summary and Australian Taxation Office Notice of assessment for the year ended 30 June 2016.  These documents show gross payments of $74,460 by Business Repair Pty Ltd to the applicant and a taxable income for him of $69,739.

34. The applicants also provided the Tribunal with a copy of a Contract of Employment between the Business Repair Pty Ltd and the applicant dated 1 June 2017 and a letter dated 19 June 2017 from Mr Andrew Dunner, General Manager, Business Repair Ltd.  The Tribunal notes that the company address on the letter is given as Level 2, Riverside Quay, Southbank, Victoria, 3006.

35. In his letter dated 19 June 2017 Mr Dunner attests to the following:

    ·the applicant is currently employed at Business Repair Pty Ltd as an accountant and commenced his employment with the company on 12 December 2014.

    ·the applicant’s duties include advising clients, managing and organising information; providing advice in relation to general accounting issues and reporting to the senior accountant on work progress;

    ·the applicant has proven himself to be an outstanding employee and Mr Dunner has no reservations in recommending him for a permanent visa.  

36. The Tribunal notes that the Contract of Employment is signed by Mr Andrew Dunner, General Manager, Business Repair Pty Ltd, but not the applicant. It purports to confirm an offer of employment as an accountant to the applicant, with a commencement date of 9 January 2017.

37. Pursuant to s.359A of the Act, the Tribunal wrote to the applicants on 14 May 2019 inviting them to comment on or respond to the following information:

    • The Tribunal has become aware of six newspaper articles retrieved from the internet and dated 17 October 2016, 7 February 2017, 3 April 2017, 16 June 2017, 28 June 2018, 28 November 2018 and an Insolvency News Online article dated 19 October 2016.  Copies of these news articles are enclosed;
    • The ABC news articles dated 16 June 2017, 28 June 2018 and 28 November 2018 included allegations that indicate a Mr Phillip Whiteman (amongst other names) in concert with a Mr Andrew Dunner and others, operated a scheme where “fake” businesses and jobs were created in Australia, allowing people from overseas to apply for and receive Subclass 457 Visas to fill these positions even though both the businesses and positions were not genuine;
    • The ABC news articles dated 16 June 2017, 28 June 2018 and 28 November 2018 allege one aspect of this scheme is that recipients of such Subclass 457 visas would arrive in Australia and pay money to Mr Whiteman or his associates, that money was then transferred to other companies controlled by Mr Whiteman or his associates and then returned in part or whole to the Subclass 457 visa holder to make it look like the visa holder was being paid a salary;
    • The insolvency News Online article states the Australian Taxation Office and other agencies executed a search warrant on Mr Whiteman controlled companies ay Level 1, 2 Adelaide Street, Cremorne in September 2016; 
    • The ABC news article dated 28 June 2018 states that the Australian Taxation Office forced five companies controlled by Mr Whiteman, into liquidation in 2017.

38. The Tribunal advised the applicants that the above information was relevant to the review because the Tribunal may form the view that:

    ·Business Repairs Pty Ltd was not a genuine business;

    ·The identity of the director of Business Repairs Pty Ltd, who the first named applicant identified as Mr Paul Whiteman is one of the names used by Mr Phillip Whiteman;

    ·Business Repairs Pty Ltd was part of a scheme conducted by Mr Phillip Whiteman and Mr Andrew Dunner and others where companies were created or used that were not operating as legitimate businesses and one of the purposes of some of those companies was to create employment positions that did not genuinely exist for the purpose of assisting people from overseas to obtain Subclass 457 visas to which they were not genuinely entitled;

    ·The position offered to the first named applicant by Business Repairs Pty Ltd was not a genuine position;

    ·The first named applicant did not genuinely work as a full-time accountant for Business Repairs Pty Ltd or anyone else at Level 1, 2 Adelaide Street, Cremorne.; and

    ·The first named applicant has intentionally misled the Department and the Tribunal in claiming to have genuinely worked as a full-time accountant at these premises between June 2015 and late 2017.

39. The Tribunal further advised the applicants that the consequences of the Tribunal relying on this information are that the Tribunal may find that as the nominated position of accountant with Business Repairs Pty Ltd was not a genuine position, which means that the prescribed ground for the cancellation of the first named applicant’s Subclass 457 visa under r.2.43(1)(kb)(ii) is made out and therefore his Subclass 457 visa may be cancelled under s.116(1)(g) of the Act.

40. The Tribunal also advised the applicants that as the cancellation of the applicant’s visa is not mandatory under s.116(1)(g), the Tribunal must decide whether to exercise its discretion to cancel the visa.  Accordingly, if the Tribunal found that the above information was relied on, the Tribunal may find that the first named applicant was involved, knowingly or otherwise, in an alleged scheme operated by Mr Phillip Whiteman and Mr Andrew Dunner and others, to circumvent Australia’s migration laws, and the named applicant made false claims of having worked full time as an accountant between June 2015 and late 2017. 

41. The Tribunal informed the applicants that it may find that the discretionary considerations the Tribunal considers when deciding whether his Subclass 457 visa should be cancelled or not, overall weigh in favour of, rather than against, the cancellation of the applicant’s  Subclass 457 visa.

42. The Tribunal advised the applicant’s that their written comments or response should be provided to it by 28 May 2019.

43. On 28 May 2019 the Tribunal provided the Tribunal with the following written response:

    ·Business Repair Pty Ltd was a genuinely operated company where he commenced employment in 2015.  He was not aware of the changes in the company which occurred later, given he worked for the group of companies owned by the owners of Business Repair Pty Ltd.

    ·He understood that the owner of Business Repair Pty Ltd was Paul Whiteman.

    ·He is a qualified accountant with Bachelor of Commerce (obtained in Sri Lanka) and a Master’s degree in Accounting from La Trobe University.  He had completed a professional year with three month’s work experience and had three years accounting experience in Sri Lanka.  With this experience the applicant had applied for a position with Business Repair Pty Ltd which was advertised in a newspaper article and after two interviews he obtained the position of accountant with Business repair Pty Ltd.  When he obtained the position he had a student visa and the company sponsored him to work on a fill-time basis.

    ·He had been in Australia since 2009 without breaking any immigration rules or criminal offending.  He denied misleading the Department or the Tribunal and had been placed in his current situation by the wrong doing of his former employer.

    ·He had a four year old daughter who was born in Australia and he and his wife wanted to give her a better education than that available to her in Sri Lanka and the family wished to stay in Australia.

1. The applicant’s evidence is that the position with the sponsor was a genuine one which required him to perform the duties of a general accountant which required him to perform duties which included advising clients, and providing advice in relation to accounting issues.  When he commenced his employment in June 2015 the sponsor was operating an accounting business at Level 1, 2 Adelaide Street, Cremorne.  Throughout his employment the applicant worked at the business premises of the sponsor’s clients, accessing files remotely visa his laptop.  Therefore, he was unaware of any wrong doing by his employer although he was aware of a change in the company’s practices in the second year of his employment when it commenced paying him in cash, rather than depositing his salary in his bank account.

2. The Tribunal accepts the findings made by the Department in relation to the visits by its officers to the sponsor’s purported offices in Chapel Street Prahran, Riverside Quay, Southbank and Lonsdale Street, Melbourne and the fact that the Department was unable to locate any premises at which the sponsor and its claimed 14 full-time members of staff were operating an accounting business.

3. Based on the evidence before it the Tribunal makes the following findings:

   ·Business Repairs Pty Ltd was not a genuine business;

   ·the identity of the director of Business Repairs Pty Ltd, who the first named applicant identified as Mr Paul Whiteman is one of the names used by Mr Phillip Whiteman;

   ·Business Repairs Pty Ltd was part of a scheme conducted by Mr Phillip Whiteman and Mr Andrew Dunner and others where companies were created or used that were not operating as legitimate businesses and one of the purposes of some of those companies was to create employment positions that did not genuinely exist for the purpose of assisting people from overseas to obtain Subclass 457 visas to which they were not genuinely entitled;

   ·the position offered to the first named applicant by Business Repairs Pty Ltd was not a genuine position; and

   ·the applicant did not genuinely work as a full-time accountant for Business Repairs Pty Ltd or anyone else at Level 1, 2 Adelaide Street, Cremorne.

4. Whilst the Tribunal accepts the applicant’s qualifications and experience as an accountant prior to 2015, it does not accept that the applicant’s position with the applicant was a genuine one.  It does not consider that his explanation of his work practices as either convincing or credible.  The Tribunal considers that even if the applicant’s work was primarily based at the premises of the sponsor’s clients, he would have been required on some occasions to return to the sponsor’s office at Level 1, 2 Adelaide Street, Cremorne.  The Tribunal does not therefore accept that he would have been unaware that the sponsor did not have an office at that address.

5. The Tribunal acknowledges that the applicant has declared an income of $69,739 for the year ended 30 June 2016 and paid income tax for that year.  However, the Tribunal is not satisfied that the PAYG Summary and Income Taxation Assessment Notice necessarily indicate that such income and taxation payments were made in respect of a position of accountant with the sponsor.

6. Further, although a perusal of the applicant’s bank statements shows deposits in to the applicant’s account, which are described as Wage but no further information is provided which identifies the deposits as having been made by Business Repair Pty Ltd.

7. The Tribunal does not find the applicant to be a credible witness and does not accept his evidence that he was genuinely employed by the sponsor in the role of accountant.

8. The Tribunal is satisfied that the applicant was knowingly  involved in an alleged scheme operated by Mr Phillip Whiteman and Mr Andrew Dunner and others, to circumvent Australia’s migration laws, and the applicant has deliberately made false claims of having worked full time as an accountant for the sponsor and the Tribunal finds that the applicant has intentionally misled the Department and the Tribunal in claiming to have genuinely worked for the sponsor in that position at Level 1 Adelaide Street, Cremorne.

9. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) 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

10. 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 purpose of the visa holder’s travel to and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

11. The applicant first arrived in Australia on 15 January 2009 as the holder of a Student (subclass 573) visa.  On 2 June 2015 he was granted a temporary Work (Skilled) (subclass 457) visa for the purpose of working as an accountant.  The subclass 457 visa program is designed to enable employers to sponsor overseas workers to work in Australia on a temporary basis.  The Tribunal accepts that the applicant and his family have settled in Australia and he wishes to remain in this country.

12. The Tribunal notes that on 30 June 2017 the applicant lodged an application for an Employer Nomination (subclass 186) visa and was granted a Bridging A visa.  His subclass 186 visa application was refused by a delegate of the Minister of Home Affairs on 11 April 2017.

13. The applicant old the Tribunal that he had obtained further employment in Australia as an accountant with a large retail and wholesale business providing fruit and vegetables to businesses in the food services industry; other retailers and to customers through its own retail outlet, in Melbourne.  The applicant said that he was waiting on the outcome of this review before taking up his new position.

14. The Tribunal accepts that the applicant is a skilled accountant and if his visa is not cancelled he may have the opportunity to obtain employment in Australia as an accountant.

    The extent of compliance with visa conditions

15. The applicant told the Tribunal that he had complied with his visa conditions and had been employed as an accountant on a full-time basis by his sponsor from June 2015 to sometime in late 2017.  The applicant told the Tribunal that he had complied with his visa conditions and had been employed by his sponsor from June 2015 until sometime in late 2017.  The Tribunal does not accept that the applicant’s position as an accountant with Business Repair Pty Ltd was genuine or that he was employed in that position on a full-time basis from June 2015 to late 2017 by his sponsor, or at all.

16. Accordingly the Tribunal is not satisfied that the applicant has complied with his visa conditions.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship

17. The Tribunal accepts that the applicant would experience difficulty if the visa is cancelled and the applicant’s return to Sri Lanka.  The applicant has been living in Australia since 2009 and his daughter (the third named applicant) was born in Australia in 2014.

18. The Tribunal accepts that the applicant has invested a great deal of effort and time into his migration to Australia.

19. The Tribunal also accepts that the applicant would be required to bear the expense and emotional upheaval of relocating to Sri Lanka, obtaining employment and supporting his family until he was re-established in that country.  However, the Tribunal notes that the applicant’s wife and daughter left Australia in January 2018 and have been living in Sri Lanka and supported by family members since their departure in January 2018.

    Circumstances in which the ground of cancellation arose

20. The Tribunal is satisfied that the circumstances in which the ground of cancellation of the applicant’s visa arose are as set out in paragraphs 9 to 21 (inclusive) of this decision.

21. The Tribunal is further satisfied the applicant’s position with his sponsor was not a genuine one and that he was not employed in the nominated position of accountant with that company.  The Tribunal is further satisfied that the sponsor was not operating a business at any or the addresses given by the company to the Department.

    Past and present behaviour of the visa holder towards the Department

22. There is no information before the Tribunal which indicates any past adverse behaviour by the applicant towards the Department and the Tribunal accepts that the applicant responded to the NOICC in a timely manner.  However, the Tribunal is not satisfied that the applicant has been truthful to both it and the Department about his ‘employment’ with the sponsor and finds that he was a knowing participant in Mr Whiteman and Mr Dunner’s scheme.

    Whether there would be consequential cancellations under s.140

23. The Tribunal accepts that in the event the applicant’s visa is cancelled, the second and third named applicants would be subject to consequential cancellation under s.140 of the Act.

    Whether there are mandatory legal consequences

24. If the applicant’s visa is cancelled, he would become an unlawful non-citizen and be liable to be detained under s.189 of the Act unless granted another visa. There is no suggestion that he would be detained indefinitely because as a Sri Lankan citizen he will be able to return to Sri Lanka. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia and he may be subject to an exclusion period in relation to some future visa applications. Section 48 of the Act prevents a non-citizen who held a visa that was cancelled under s.116 from applying for any visa not prescribed for the purposes of s.48 while in the migration zone. The applicant did not suggest that non-refoulement obligations would be breached as a result of the visa cancellation, and the Tribunal has given this factor no weight in favour of or against cancellation.

    FINDING

25. The Tribunal has weighed the matters relevant to the applicant’s personal circumstances together with his knowing participation in a scheme to circumvent Australia’s migration laws and his misleading behaviour towards both the Department and the Tribunal.  After considering the circumstances as a whole, the Tribunal concludes that the applicant’s misleading and dishonest behaviour outweighs his personal circumstances and the visa should be cancelled.

    DECISION

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

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

    Amanda Mendes Da Costa
    Member