Yadav (Migration)

Case •

[2019] AATA 900

•

5 February 2019

Yadav (Migration) [2019] AATA 900 (5 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Roshni Yadav
Mr Vijay Singh Yadav
Ms Ahana Yadav

CASE NUMBER:  1720047

HOME AFFAIRS REFERENCE(S):           BCC2017/2307752

MEMBER:Antonio Dronjic

DATE:5 February 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 05 February 2019 at 10:47am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – work only in occupation listed in most recently approved nomination – hairdresser – carried out work as a beauty therapist – consideration of discretion – purpose of a Subclass 457 visa – ceased employment with sponsor – extent of non-compliance – degree of hardship – 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 30 August 2017 made by a delegate of the Minister for Immigration and Border Protection 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)(b) of the Act. The delegate found that the applicant had not worked only in the occupation listed in the applicant’s most recently approved nomination, namely as a hairdresser, but has carried out work as a beauty therapist. The delegate found that the applicant had breached condition 8107 of Schedule 8 to the Migration Regulations 1994 (the Regulations) which is attached to the applicant’s visa by specifically breaching condition 8107(3)(a)(i).

  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 to the cancellation of the applicant’s visa

  4. The primary decision record of 30 August 2017 provided by the applicants to the Tribunal with the review applications sets out the reasons for the delegates’ decision to cancel the applicant’s visa. The Tribunal summarises those reasons and findings as follows:

    ·On 26 October 2016, the applicant was granted a Subclass 457 Business (Long Stay) visa for the period of four years;

    ·The standard business sponsor who nominated the applicant in the most recently approved nomination for the visa (26 October 2016) was Hairway Fountain Gate Pty Ltd. The occupation listed for the applicant in the most recently approved nomination was hairdresser;

    ·The Department conducted a site visit at the business premises on 8 May 2017. The officers of the Department were given access to computer to computer systems and have obtained work records for sample weeks taken in November 2016, February, March, April and May 2017. The records indicated that the nominee, Ms Yadav was performing a role of a beauty therapist and that she fulfilled the services such as waxing, eyebrow threading and piercing on a number of occasions. In particular, during the period from 1st to 7th November 2016, she has undertaken 61 beauty therapist tasks; during the period from 1st to 7th February 2017, she has undertaken 72 beauty therapist tasks; during the period from 1st to 7th March 2017, she has undertaken 79 beauty therapist tasks; during the period from 1st to 7th April 2017, she has undertaken 91 beauty therapist tasks and during the period from 30th April to 7th May 2017, she has undertaken 58 beauty therapist tasks.

    ·A notice of intention to consider cancellation (NOICC) was issued on 1 August 2017;

    ·On 4 August 2017, the applicant responded in writing to the NOICC stating that she was not aware that most of the hairdressing services were entered as beauty services in the computer records and that she can provide letters from her customers that will confirm she worked as a hairdresser. She further claimed that the cancellation will cause hardship to her and her family.

    ·On 30 August 2017, the delegate proceeded to cancel the applicant’s visa.

  5. The applicants applied to the Tribunal on 31 August 2017 for review of the visa cancellation and with the application submitted a copy of the primary decision record.

  6. On 22 November 2018, the Tribunal requested that the Department provide documents that led to the delegate’s decision to cancel the applicant's visa particularly the site visit report of 8 May 2017 and a copy of the Departmental decision to bar the sponsoring business.

  7. On 23 November 2018, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 30 January 2019.

  8. On 27 November 2018, the Department provided the following documents to the Tribunal:

    ·Copy of the Notice of Intention to Take Action (NOITA) against the sponsoring business dated 26 May 2017;

    ·Printout of the computer records obtained by the Department during the site visit for sample weeks taken in November 2016, February, March, April and May 2017 (titled Sales Breakdown by staff person);

    ·A copy of hand written notes taken by the Departmental officers during the site visit;

    ·A copy Notice of Decision to bar the sponsoring employer from sponsoring more people until the end date of the existing sponsorship dated 27 June 2017; and

    ·Copy of notes taken during the telephone conference with Saanjiv Bansal, the director of Hairway Fountain Gate Pty Ltd dated 26 May 2017.

  9. On 24 January 2019, the applicant wrote to the Tribunal stating inter alia that she has been working with Hairway Fountain Gate since 2013 as a beauty therapist because the owner was reluctant to have any professional hair job done by her as she did not have the required educational certificates; that after she completed Certificate III and IV in hairdressing the salon decided to sponsor her for a Subclass 457 visa which was granted on 26th October 2016; that she was working as a hairdresser until July 2018 before going on maternity leave and that to the best of her knowledge it is incorrect that she worked as a beauty therapist after she was granted a Subclass 457 visa. She further stated that she was working at a hairdressing section of the salon after completing hairdressing courses and that she has no explanation as to how her services were entered as beauty therapist.

  10. She further wrote that she always complied with her visa conditions, that her past and present behaviour with the department has been unblemished, that she volunteered for Disability Worker Exclusion Scheme through The Bridge Inc (Bridge Connect), that the visa cancellation will cause a lots of hardship to her and her family and that she had to move from Victoria to Brisbane as her children were not able to cope with the weather conditions in Victoria because of bacterial infection. With her submissions she provided:

    ·A copy of the medical certificate dated 19 February 2018 as evidence that the applicant’s daughter was diagnosed with asthma;

    ·A copy of the medical certificate dated 18 December 2017 as evidence that the applicant was in the early stages of pregnancy at that time;

    ·A copy Statutory Declaration sworn by Komal Jaura, the applicant’s co-worker, dated 23 January 2019 attesting to the applicant’s hairdressing skills and good character;

    ·A copy statement from Husna Khan, the applicant’s co-worker, attesting that the applicant worked as a hairdresser after she was granted a Subclass 457 visa;

    ·A copy statement from Kabul and Veerpal Mangat attesting that the applicant was their family hairdresser;

    ·A copy statement from Kerrylee Ancrum dated 21 January 2019 stating that she was the applicant’s regular customer who had her hair cut and styled by the applicant;

    ·A copy statement from Divya Mrock  stating that she was the applicant’s customer who had her hair cut and styled by the applicant;

    ·A copy statement from Darshna Nilaydave stating that she was the applicant’s customer and that the applicant has provided beauty as well as hair treatment on a regular basis;

    ·A copy letter from Sanjiv Bansal, the director of the sponsoring business dated 8 January 2015, stating that the applicant has been working at the sponsoring business as a Beautician;

    ·A copy of the applicant’s statement titled ‘Statement of Purpose’ dated 9 January 2015;

    ·A copy e-mail from Bridge Connect as evidence that the applicant volunteered for this organisation;

    ·A copy e-mail from the applicant sent to her employer enquiring as to why she is not in a full time employment;

    ·A copy e-mail from the employer to the applicant dated 23 December 2017 stating that the applicant has been absent from work and seeking the explanation for her absence; and

    ·Copies of the applicant’s children’s birth certificates.

  11. The applicant appeared before the Tribunal on 30 January 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

  12. Before commencement of the hearing the applicant submitted:

    ·A copy letter from the sponsoring business dated 19 December 2018 stating that the applicant worked as a hairdresser at the sponsoring business from 26 October 2016 to 15 July 2018 after which she went on maternity leave and has not since returned to work. Her employment contract expired on 26 October 2018 and has not been renewed;

    ·Copy of the applicant’s educational certificates related to hairdressing obtained in Australia;

    ·Copy of the applicant’s pay slips from Hairway Fountain Gate for the period from 22 May 2017 to 4 June 2017; and

    ·Copy e-mails exchanged between the applicant and the sponsoring business dated 22 December 2017; 7 July 2018 and 14 and 19 January 2019

  13. The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the hearing. The Tribunal explained why it does not have jurisdiction in respect of the secondary applicants. The Tribunal informed the applicant that her visa was cancelled under s.116 (1)(b) of the Act as the delegate concluded that she had not complied with the condition imposed on her visa. Specifically, the 8107 condition to which her visa was subject, prescribes in 8107(3)(a)(i) that the visa holder must work only in the occupation that was listed in the most recently approved nomination.

  14. The Tribunal further explained to the applicant that, if satisfied that a ground for cancellation is made it out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

  15. The applicant is 35 years of age and a national of India. She is married and has two underage children. In India, the applicant completed a Bachelor of Arts degree in 2011 and worked as a beauty therapist and a hairdresser for two years. Her brother and parents live in India. She has no relatives in Australia. Her husband has completed the equivalent of year 12 and managed the family farm prior to arriving in Australia. His brother is an Australian citizen and his parents reside in India.

  16. She first arrived in Australia in August 2013. Her husband was primary applicant for a student visa. He arrived in Australia in 2011. She joined him as a dependant family member. Her husband studied a Dental Technician course that was completed by 2014. In Australia, her husband was driving taxis until 2014. Currently he works as a truck driver. The family relocated from Melbourne to Brisbane in November 2018 because of her daughter’s asthma. In Australia, the applicant completed Certificate III (March 2016) and IV (August 2016) in Hairdressing.

  17. She commenced her full time employment at the sponsoring business on 26 October 2016. She worked five days per week and her annual salary was $54,000. Prior to commencing full time employment, the applicant worked as a beauty therapist for the same business on a part time basis from 2014.

  18. Her supervisor and manager at the sponsoring business was Natasha. Together with a receptionist, Natasha was taking bookings from the customers and was responsible for entering relevant data into computer records. At the time when she commenced her full time employment, the business employed 10 hairdressers and four to five beauty therapists. She reiterated that from October 2016, she worked as a hairdresser. She gave evidence that she also worked as a beauty therapist on two to three occasions every month mainly doing eyebrow threading. She stated that she was also selling various products at the hairdressing salon.

  19. When I noted that beauty therapist was not the occupation listed in the applicant’s most recently approved nomination, she stated that the employment agreement stipulated that she was required to do other work at the sponsoring business. She claims that she was never given a copy of the employment agreement. Instead the agreement was read to her by her migration agent who was also a brother of her employer (Mr Saanjiv Bansal’s brother).

  20. Despite the fact that her visa was cancelled on 30 August 2017, she continued to work for the sponsoring business until July 2018. She then ceased her employment because of pregnancy. She requested maternity leave from her employer who never replied to her e-mail enquiries. She referred to her e-mails dated 7th and 18th July 2018 submitted to the Tribunal at the commencement of the hearing. She stated that she sought 12 months of maternity leave from her employer but was ultimately given only three months.

  21. After giving birth to her son on 31 July 2018, the applicant did not return to work at Hairway Fountain Gate Pty Ltd. In November 2018, together with her family, the applicant relocated to Brisbane as the climate in Queensland was better suited her daughter’s asthma.

  22. The applicant has not been employed since July 2018. She is not sponsored or nominated by any Australian business.

    The Tribunal’s Oral Invitation to Comment on or Respond to Information:  

  23. In accordance with s.359AA of the Act, the Tribunal informed the applicant that there was information before the Tribunal obtained from the Department that would be the reason or part of a reason for affirming the decision that is under review. The information was:

    During the site visit, the Departmental officers obtained five documents headed Sales Breakdown by Sales person from a duty manager Natasha. These documents relate to five sample weeks chosen at random. According to these documents:

    From 1st to 7th November 2016 - you have provided beauty services on 61 occasions;

    From 1st to 7th February 2017 - you have provided beauty services on 72 occasions;

    From 1st to 7th March 2017 - you have provided beauty services on 79 occasions;

    From 1st to 7th April 2017 - you have provided beauty services on 91occasions; and

    From 30th April to 7th May 2017 - you have provided beauty services on 58 occasions.

    The applicant was presented with the printout of the computer records obtained by the Department during the site visit for sample weeks taken in November 2016, February, March, April and May 2017 (titled Sales Breakdown by staff person);

  24. The Tribunal explained why this information is relevant to the current review and consequences if the Tribunal relies on this information. The Tribunal clarified with the applicant that she understood the information, its relevance to the Tribunal’s decision and consequences of the Tribunal relying on the information. The Tribunal then invited the applicant to comment on or respond to the information and informed her that she could request additional time to do so.

  25. The applicant stated that she is not seeking additional time to provide her comments on or response to the information. She stated that the records are incorrect, that she did not made entries into the computer, that the receptionist and manager were doing that and that she cannot explain why they made incorrect entries. She further stated that she had to follow her employer’s directions as to what services she is required to provide to the customers. She stated that she was undertaking tasks of a beauty therapist on one to three occasions per month under the directions of her employer. She noted that one of her customers, Darshna, provided a letter stating that she was her customer and that the applicant has provided beauty as well as hair treatment on regular basis.

  26. I explained to the applicant that, based on the evidence before me, I am satisfied that the ground for cancellation in s.116 (1)(b) is made out and that I will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

  27. I indicated that I will take into consideration the evidence given at the hearing as well as submissions provided in support of the application. I asked the applicant if there is anything else that she wants to raise with the Tribunal.

  28. She stated that her children have medical conditions and she is not sure how they will be able to settle in India. She reiterated that she has done voluntary work for Bridge Connect for some five months, that she did not understand the law and that she should be given another chance as she is willing to commence employment in her occupation. She has not started employment because her son is too small. She stated that she only followed the employment agreement.

  29. 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

  30. 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?

  31. 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 was attached to the applicant’s visa.

  32. This condition, inter alia requires that the applicant must work only in the occupation listed in the most recently approved nomination for the holder. In this matter, the applicant was nominated to work as a hairdresser and the associated business nomination was approved by the Department on 26 October 2016.

  33. Based on the evidence before it, including the oral evidence from the applicant and the investigation conducted by the Department as recorded in the primary decision record, I am satisfied that the applicant worked on a number of occasions for the sponsoring business as a beauty therapist.

  1. Based on this finding, I am satisfied that the applicant was in breach of condition 8107, specifically condition 8107(3)(a)(i), of her visa. I am therefore satisfied that the ground for cancellation exists under s.116 (1)(b).

  2. As this ground does not require mandatory cancellation under s.116 (3) of the Act, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

  3. 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’.

  4. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2]

    [1]     See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

    [2]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209 Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 at [55]

  5. Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant.

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

  6. The Subclass 457 visa is for skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work for Hairway Fountain Gate Pty Ltd as a hairdresser on a temporary basis.

  7. The occupation of a hairdresser was one of a limited number of occupations listed by the Minister as an occupation that can form the basis of an approved nomination. The occupation of a beauty therapist is not on the list of occupations specified by the Minister.

  8. After her visa was cancelled, the applicant continued to work for Hairway Fountain Gate Pty Ltd until July 2018. She then ceased employment because of pregnancy. She was granted three months maternity leave by her former employer and has not since returned to work. According to the letter from the sponsoring business of 19 December 2018, the applicant’s employment contract expired on 26 October 2018 and has not been renewed. Together with her family, in November 2018 she re-located to Brisbane. She has not worked in her nominated occupation since she ceased employment at Hairway Fountain Gate Pty Ltd.  

  9. As explained at the hearing, the purpose of granting a temporary work visa is to enable an Australian business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. The Subclass 457 visa was a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation. The Tribunal finds that this purpose no longer exists. I give significant weight to this consideration.

    The reason for and extent of the breach

  10. The applicant’s visa was subject to condition 8107. I am satisfied on the evidence before me that the applicant was aware of the condition imposed on her Subclass 457 visa.

  11. The applicant stated in her evidence that, after she was granted a Subclass 457 visa and nominated to work as a hairdresser, she provided beauty therapist services on at least one to three occasions per month.

  12. According to the investigation conducted by the Department, it appears that the number of occasions the applicant provided beauty services was much higher. The applicant claims in her evidence that the computer records were not accurate but, apart from stating that she did not make entries in the computer records, she was unable to explain why.

  13. Based on the evidence before me I am satisfied that the applicant received a copy of the Subclass 457 visa grant letter from the Department which explained the conditions imposed on her visa. I am satisfied that the applicant knew that she was only allowed to work in the occupation listed in the applicant’s most recently approved nomination, namely as a hairdresser.

  14. The applicant claims that her employment agreement stipulated that she was required to do other tasks apart from hairdressing. She claims that she never received a copy of this agreement and that agreement was read to her by a migration agent. Even if I accept this evidence, the applicant knew or ought to have known that she is not allowed to work in any other occupation.

  15. The applicant gave evidence that she previously worked for the sponsoring business as a beauty therapist and had several regular customers asking her to provide beauty services. I also accept that she felt obliged to follow her employer’s instructions if she was asked to provide beauty services.

  16. Based on the work reference letter dated 19 December 2018 provided by her former employer and letters from her customers, I accept that the applicant also worked as a hairdresser after she was granted a Subclass 457 visa.  

  17. I consider the non-compliance to be significant, as the temporary business entry scheme is predicated upon a visa holder being employed by an approved business sponsor in an approved nominated position.

    Circumstances in which ground of cancellation arose

  18. While I acknowledge that the applicant felt compelled to follow her employer’s directions, I find that the circumstances in which the ground for cancellation arose under s.116 (1)(b) ( breach of condition 8107) were brought about by the applicant, and were not beyond her control.

    Past and present conduct of the visa holder towards the Department

  19. There is no evidence before me that the applicant previously breached visa conditions. I am satisfied that she has been co-operative with the Department.

    Degree of hardship that may be caused;

  20. The applicant claims that the visa cancellation will cause a significant hardship to her and her family, that her children have medical conditions and she is not sure how they will be able to settle in India.

  21. I have taken into consideration the applicant’s evidence that in India, she completed a Bachelor of Arts degree and worked as a beauty therapist and a hairdresser for two years. Her brother and parents live in India and she has no relatives in Australia. Her husband has completed the equivalent of year 12 and managed the family farm prior to arriving in Australia.

  22. I accept that the applicant and her family have established ties to the Australian community. Considering her family composition, formal education completed in India and Australia and her work experience gained in Australia, I am satisfied that the applicant and her family will be able to re-establish themselves in India.

  23. Balanced against any potential hardship to the applicant and her family that may result from the visa cancellation, is the fact that the applicant came to Australia on a temporary visa which created no expectation of remaining in Australia permanently. The purpose of a Subclass 457 visa is not to enable settlement in Australia on an indefinite basis. Nor is the purpose to provide better climate conditions for the applicant’s children’s medical conditions.

  24. I am satisfied that the applicant is not prevented by public interest criterion 4013 from re-applying for a temporary work visa once she finds a new employer who is approved as a standard business sponsor and has the approved business nomination in relation to the applicant.

    Whether there are mandatory legal consequences, such as whether cancellation would
    result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the
    Act which prevent the person from making a valid visa application without the Minister’s
    Intervention

  25. The applicant is currently on a Bridging visa as a result of the current review process. In the absence of another successful visa application being made by the applicant, or granted by the Minister, the applicant will not have a visa status which will allow her to remain in Australia. If that is the case she has the opportunity to depart Australia. Whilst her failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

  26. The Tribunal is mindful that s.48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s.116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 of the Regulations prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

    Whether there would be consequential cancellations under s.140

  27. Whilst the applicant’s husband’s and daughter’s visas were also cancelled as a consequence of this cancellation, the Tribunal notes that the consequence will not result in separation of the applicant from her husband and daughter.

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

  28. In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).  

  29. Based on the evidence before me, I am not satisfied that Australia would be in breach of its international obligations pursuant to any of these international agreements. The Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s visa.

    The impact on any victims of family violence

  30. There is no evidence before the Tribunal regarding this matter.

    Other relevant matters

  31. I acknowledge that the applicant has undertaken voluntary work for Bridge Connect for the period of five months.

  32. I further acknowledge the applicant’s claim that she did not understand the law and she should be given another chance as she is willing to commence employment in her occupation.

  33. Having regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.

    DECISION

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

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

    Antonio Dronjic
    Member



Key Legal Topics

Areas of Law

  • Immigration

  • Administrative Law

  • Statutory Interpretation

Legal Concepts

  • Judicial Review

  • Jurisdiction

  • Procedural Fairness

  • Breach

  • Statutory Construction

  • Remedies

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

8

Statutory Material Cited

0

Rani & Ors v MIMA [1997] FCA 1493
Newall v MIMA [1999] FCA 1624
Rani & Ors v MIMA [1997] FCA 1493