YOTMADEE (Migration)

[2018] AATA 5272

YOTMADEE (Migration) [2018] AATA 5272 (30 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Suchanya Yotmadee
Mr Monton Yotmadee

CASE NUMBER:  1818462

HOME AFFAIRS REFERENCE(S):           BCC2018/1399165

MEMBER:Jennifer Cripps Watts

DATE:30 November 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 30 November 2018 at 9:22am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment for more than 90 days – consideration of discretion – underpaid by sponsor – given fewer shifts at a lower skill level of dishwasher – bullying in the workplace – effort to resolve workplace problems before resigning – cognisant of risk to visa status by leaving employment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
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 18 June 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)(b) on the basis that the applicant was non-compliant with condition 8107(3)(b) of schedule 8 to the Migration Regulations 1994 (the Regulations) because she ceased employment with her sponsor and the period during which the applicant ceased employment was more than 90 days.  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 applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

4. The applicant appeared before the Tribunal on 27 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an NAATI level 3 interpreter in the Thai and English languages.  The applicant asked whether she was understanding the interpreter clearly and confirmed that she was.

5. The applicants were represented in relation to the review by their registered migration agent, Mr Aphichart Saengthun, Migration Agent Registration Number 0106983.

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)(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.

   Background

8. The Tribunal has had regard to the delegate’s decision, a copy of which was provided by the applicant when she lodged her review application.  It included the following:

   a.The applicant was granted a Subclass 457 visa on 7 July 2016 valid until 7 July 2020, sponsored by I Beleaf Pty Ltd (the sponsor) in the position of Café or Restaurant Manager (ANZSCO 141111).  It was a requirement under condition 8107 that she work for the sponsor or an associated entity of the sponsor.

   b.The sponsor notified the Department that, effective 10 November 2017, the applicant ceased employment with them

   c.The applicant became non-compliant with sub-clause 8107(3)(b) of condition 8107 when she ceased employment with the sponsor

   d.On 10 May 2018, the applicant was notified, by way of a Notification Of Intention to Consider Cancellation (NOICC) letter that she was in breach of condition 8107 and invited to comment

   e.The applicant did not respond to the NOICC

   f.The delegate was satisfied that there was a ground for cancellation under s.116(1)(b) of the Act

   g.The delegate considered the discretionary matters, noting that the applicant had made no claim, nor had she provided any evidence addressing the discretionary matters, and was satisfied that the grounds for cancelling the visa outweighed the reasons for not cancelling. 

9. The applicant’s migration agent provided written submissions in which he refers to the following matters:

   a.The applicant’s visa was cancelled on 18 June 2018

   b.The NOICC was sent to [email protected] on 10 May 2018 (with an underscore)

   c.The applicant’s email address is [email protected] (with a hyphen)

   d.The NOICC was sent to the wrong address which is why the applicant did not respond to it, that is, she did not receive the NOICC

   e.The cancellation decision was sent to the right email address and the applicant did receive it

   f.The applicant was granted a Subclass 457 visa sponsored by Leaf In Berry, from 2016 to 2020, for four years

   g.10 November 2017 was the last day she worked for the sponsor

   h.The applicant left the sponsor’s employ because, essentially, she was underpaid and demoted from manager to dishwasher and offered fewer hours and was under “a lot of mental pressure”

   i.On 12 November 2017, the applicant and her husband travelled to Thailand for the funeral of Mr Yotmadee’s father

   j.On 28 November 2017, the applicant found a new employer in Toowoomba that was willing to sponsor her, she had a work trial at Toowoomba Thai and both applicants were offered sponsorship, Mr Yotmadee as a chef and Mrs Yotmadee as a Café or Restaurant Manager

   k.The applicants worked for Toowoomba Thai for two months, 10 hours a day earning $150 each and left when the sponsorship ‘did not come through’

   l.After that, the applicant had trouble finding a job and moved in with her brother in Penrith, New South Wales

   m.She lodged a complaint about her sponsor, Leaf In Berry, with the New South Wales Fair Work Ombudsman - an investigation was started and the applicant subsequently lodged a complaint for underpayment and findings in her favour were made, including compensation for underpayment

   n.In February 2018 the applicant found a new employer, Bann Phaya Thai Restaurant in Redcliff, Queensland and did a 10 day work trial and worked for another 10 days – she was paid $140 a day and ‘again the sponsorship did not happen’

   o.The applicant then found another job with Kin Senn in Sydney and they offered her sponsorship – she worked there for one month and was told she would need to work from 10:30am to 12:00am and she refused the offer

   p.The applicant applied for many jobs but was unsuccessful

   q.She received a call from Bann Phaya Thai 9 Restaurant, Scarborough, Brisbane

   r.The Department informed the applicant, by phone on 10 May 2018, that they had sent her some information – she tried to call them back and asked if anything had been sent to her email and was told, through a Thai interpreter, ‘no’

   s.On 15 May 2018, after this phone conversation, she checked her visa status online and her record indicated she still held the Subclass 457 visa with Leaf In Berry and was in the process of changing to a Subclass 482 visa with her employer, Bann Phaya Thai 9

   t.The applicant’s migration agent checked her visa status on VEVO and saw she was still holding a Subclass 457 visa

   u.On 6 June 2018, the applicant went for a work trial at Bann Phaya Thai 9 restaurant in Brisbane

   v.On 18 June 2018, the applicant received notification from the Department that her Subclass 457 visa was cancelled

   w.On 6 July 2018, the Department contacted the applicant and offered to change her to a Bridging Visa E (BVE) and on 10 July 2018 she was notified she had been granted a BVE

   x.On 5 November 2018, the applicant received notification from the Fair Work Ombudsman informing her that her calculations for underpayment were currently being finalised

   y.On 19 November 2018, the applicant found a sponsor, Chong Co Thai Restaurant at 31 Eastlake Parade, Kingston, Australian Capital Territory

10. The applicant appeared to be placing some importance on the issue of the wrong email address and the calls she made to the Department relating to information she said she did not receive.  She was asked about this at the hearing and given an opportunity to explain why she what she wanted the Tribunal to consider the matter.  She said that she thought she may have given the Department the wrong email address herself during a phone call she had with an officer of the Department, explaining that she may have said her email address had an underscore in it (rather than a hyphen).  The applicant gave what was considered by the Tribunal to be very confusing evidence about this at the hearing and the interpreter said he may have misinterpreted what the applicant said about her correct email address, that is, confusing whether she said an underscore or a hyphen.  The Tribunal accepts that the Department sent the NOICC to the wrong address.  This is discussed later.

11. The day before the hearing the applicant provided the Tribunal with a copy of a letter from the Department of Home Affairs, dated 27 November 2018, sent to [email protected], indicating acknowledgement of a nomination application by Thai By Amita Pty Ltd, showing the nominee as the applicant, Suchanya Yotmadee.  It is not included in the letter what the nominated occupation is.  However, the applicant provided a copy of the employment contract at the hearing indicating that the position is that of Restaurant Manager.  The name of the company on the employment agreement is Chong Co Kingston Pty Ltd, which is a different company to the one on the acknowledgement of nomination application.  The applicant said at the hearing that they are the same company.  The Tribunal accepts that the two companies are related entities.

12. The applicant was the subject of an earlier nomination application nominating her in the occupation of Café or Restaurant Manager, by Mungmee Enterprise Pty Ltd (Mungmee) in May 2018.  It was refused in August 2018 and, shortly after, Mungmee lodged an application for review of the decision to refuse the nomination relating to Mrs Yotmadee.  The same migration agent, Mr Saengthun, is the representative and authorised recipient for both Mungmee and Mrs Yotmadee. 

13. The review application for Mungmee is active in the Tribunal system, but has not yet been constituted to a member.  The applicant and her representative both confirmed at the hearing that there is no intention or prospect of Mungmee pursuing the nomination or of the nominee wishing or intending to work for Mungmee.  They were asked why Mungmee, on the strength of this information they provided, was continuing with the review application.  The applicant’s migration agent, Mr Saengthun, said at the hearing that he had intended and does intend to notify the Tribunal that Mungmee wishes to withdraw the application for review lodged on 21 August 2018 (Matter number 1824252).  He said specifically that the sponsor, referring to Mungmee, is not willing to continue and won’t sponsor the applicant.  To the Tribunal’s knowledge, the application has not been withdrawn at the time of this decision.

14. The applicant provided a large number of documents including bank statements, PAYG statements and her own written statements.  She was asked what she wanted the Tribunal to consider and said the documents were provided as evidence to confirm her first sponsorship.  The Tribunal has considered them and accepts that the applicant was sponsored by Leaf In Berry, that she was paid a salary and that she worked there up to November 2017.

    Does the ground for cancellation exist?

15. 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(3)(b) was attached to the applicant’s visa. This condition requires that if the holder ceases employment (working in the occupation of her most recently approved nomination), the period during which the holder ceases employment must not exceed 90 consecutive days.

16. The Tribunal has considered all relevant facts and matters.  Notwithstanding that it is accepted by the Tribunal that the NOICC dated 10 May 2018 was sent to the wrong email address and the applicant (for this reason) did not receive it, this does not alter the fact that the applicant ceased employment with the sponsor on 10 November 2017 and she did not secure a new nomination within 90 days.  The applicant was given an opportunity to explain at the hearing what she would have said if she had responded to the NOICC in May 2018.  This is discussed in greater detail later. 

17. 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

18. There are no matters specified in the Act or the 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’.

19. The Tribunal has had reference to PAM3 as a guide only when considering the discretion and has taken into account the documentary and oral evidence provided by the applicant.

    Purpose of the visa holder’s travel and stay in Australia

20. The Tribunal has had regard to the purpose of the applicant’s travel and stay in Australia and whether she has a compelling need to remain in Australia.

21. 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 purpose of the applicant’s stay in Australia was to work in the occupation of Café or Restaurant Manager (ANZSCO 141111) for the sponsor, Leaf In Berry, a Thai restaurant.  The employment agreement, dated 16 December 2015, includes that the ordinary hours of work will be 38 per week plus any reasonable additional hours and that the applicant will be paid $55,000 per annum, to be reviewed annually, and 9.5 percent employer contributed superannuation.  The start date to work in the nominated occupation covered by the employment agreement is specified as the day the Subclass 457 visa is granted.  The applicant said at the hearing that she had been working part-time for Leaf In Berry since 2015 and that it was in July 2017 that she started working there in the full-time position of Café and Restaurant Manager, after her Subclass 457 visa was granted.  

22. At the time she was granted the Subclass 457 visa from 2016 to 2020, the applicant had been residing in Australia on various temporary student and bridging visas for about seven years from 2009 to 2016.   Her husband was granted the same 457 visa on the basis of being a member of the applicant’s family unit.  He also worked at Leaf In Berry as a chef.  In the applicant’s written statement provided to the Tribunal, she said that she received advice and hoped after two years of holding the Subclass 457 visa that she would be able to apply for permanent residency.  She worked for Leaf In Berry for about one year and four months and has not managed to secure another approved nomination since she left in November 2017. It is accepted she has made attempts to secure another nomination and was the subject of a nomination application for a Subclass 482 visa by Mungmee that was refused.

23. Due to circumstances where the applicant was underpaid by the sponsor and claims to have been demoted to washing dishes, only being offered three days’ a week work and bullied in the sponsor’s workplace, she left her employment with Leaf In Berry on 10 November 2017.  She made a formal complaint to the Fair Work Ombudsman, claiming to be owed money by the sponsor.  The applicant has provided an email from an officer of the Fair Work Ombudsman, dated 5 November 2018, that indicates that they were in the final stages of calculating what the applicant was owed by her previous employer, the sponsor.  There is a more recent email that was handed up at the hearing, dated 27 November 2018, indicating that the applicant has been paid an amount by the sponsor and that the sponsor’s accountant has made an inquiry about whether the applicant has received the payment and that provisions have been made for withholding tax for the underpayment.  The applicant said at the hearing that she received around $17,000.  She said that she thought she should have also been paid an additional amount she was claiming of $10,209.  She said she has raised this with an officer of the Fair Work Ombudsman who is looking into it.  There is no evidence before the Tribunal that this aspect of her claim has been resolved.

    Degree of hardship that may be caused by the cancellation

24. The Tribunal has considered whether there are financial, psychological, emotional or other hardships that may be caused to the applicant if her visa is cancelled.

25. The applicant said at the hearing that she has works rights attached to her BVE and works on Sundays.  She said her husband works for a Thai restaurant called Thai Square as a chef, near where they live with relatives in Penrith.  The applicant refers to finances being tight.  However, there has been no claim made that the applicant will suffer psychological, emotional or other hardship if her visa is cancelled.  The Tribunal notes that the applicant is a citizen of Thailand and it is reasonable to think that she can return there with the excellent tertiary qualifications and substantial work experience in her chosen field of hospitality she has gained in Australia over the last nine or so years while living her on temporary visas to settle back into life in her home country.  Her husband, on the evidence, is a qualified chef who has previously run his own restaurant.  There was no claim made or evidence provided that they cannot return to Thailand.

26. While it is conceded that it would be disappointing and may cause some inconvenience and even a level of financial hardship, the Tribunal is not satisfied that significant overall hardship, in their circumstances, would be caused to the visa applicant and her husband if the visa is cancelled.

    Circumstance in which the ground for cancellation arose

27. The Tribunal has considered the applicant’s submissions and evidence explaining why she left her job with the sponsor on 10 November 2017, including that she subsequently lodged a Fair Work Ombudsman claim and has been successful in her claim for outstanding money owed to her by the sponsor, albeit not as much as she had hoped for, referring to the $10,000 plus she claims still to be owed to her by the sponsor.

28. It is submitted by the applicant that the circumstances in which the ground for cancellation arose were beyond her control.  Essentially, that she was being underpaid, given fewer shifts at a lower skill level of dishwasher and that she was being bullied in the sponsor’s workplace which was causing her to suffer significant psychological hardship, leaving her, she felt, with no other choice than to leave the sponsor’s employment.  The Tribunal has some concerns that the applicant may not have tried to resolve the situation with the sponsor so she could remain working there and remain compliant with the visa conditions.  The applicant said she asked to be given her job back, some time after 10 November 2017, and told the Tribunal that one of the partners of the sponsoring business said if the applicant gave them $10,000, and the other partner agreed, they would take her back.  There has been no probative evidence provided about this proposed arrangement that the applicant claims she and a partner of the business talked about not long after the applicant left her job in November 2017.  It is not in dispute that she did not return to work for the sponsor.

1. While it is accepted that the applicant has been successful with her Fair Work Ombudsman application in being paid money she was owed by the sponsor, there is little probative evidence before the Tribunal that the applicant sought to resolve the problems in the workplace before making the very significant decision to resign from her job with the sponsor on 10 November 2017.  She said at the hearing that she was aware she had only 90 days to find a new sponsor and that she tried to find one.  The Tribunal accepts that she did tried to find a new sponsor, but she was not successful, within the 90 days, or at any time since leaving her employment in November 2017.

2. The applicant and her husband travelled to Thailand on 12 November 2017 to attend the funeral of the applicant’s father-in-law.  She says that at time she had not formally left her job and that the sponsor had told her to have a think about things while she was in Thailand. 

3. It is reasonable to think, given it is a clearly stated condition of her visa, that the applicant was aware she is required to work for the sponsor in the occupation that is included in the nomination and that ceasing to work for the sponsor may have resulted in the cancellation of her visa, which in her case it did.  The Tribunal does not suggest that the decision to leave the sponsor was taken lightly and does not dispute the applicant’s claim that she was underpaid or told she would be demoted from the position of manager.  However, the Tribunal is satisfied the applicant left the employ of the sponsor in November 2017 cognisant of the risk to her visa status.  That is, that her visa could and subsequently was cancelled because she was non-compliant with a condition attached to it, condition 8107(1)(a), that she not ‘cease to be employed by the employer in relation to which the visa was granted’.

4. It is submitted that the circumstances leading to the applicant’s cancellation were beyond her control.  The Tribunal has had regard to the evidence provided by the applicant, in particular her explanation about what happened leading to her ceasing employment with the sponsor.  She had not formally left her employment, on her oral evidence, on 10 November and had been advised by the sponsor to think about things while the applicant was overseas attending the funeral of her husband’s father, whose passing away is accepted on the face of it.  The death of the applicant’s father-in-law is certainly considered by the Tribunal to have been beyond her control.  However, the Tribunal is not satisfied that any reasonable explanation or probative evidence has been provided indicating that in all the circumstances, leaving her employment was beyond her control.  On her own oral evidence, that applicant said she was given an opportunity by the sponsor to think about things while she was in Thailand in November 2017, indicating to the Tribunal that the sponsor was offering the applicant an opportunity to return to her job.  While there has been oral evidence given that the applicant had a conversation with the sponsor where she says they offered to take her back if she paid them $10,000, in the absence of corroborative evidence this claim, effectively that the applicant sought to be reinstated, is given little weight.

5. The applicant has provided information to the Tribunal that includes, in addition to the work she did with the sponsor, a history of her having commenced work with four other potential sponsors (Toowoomba Thai, Bann Phaya Thai in Redcliff, Kin Senn in Sydney and Bann Phaya Thai 9 in Brisbane).  None of them eventuated.  The applicant has now provided evidence that she has a new sponsor who has lodged an application with the Department, on 27 November 2018.  

6. Notwithstanding that the applicant’s Subclass 457 visa was granted up to 2020, she has now been without a sponsor for more than a year and seems, on the evidence, to have had multiple work trials that did not result in her securing a sponsorship nomination until the latest one with Thai by Amita  trading as or Chong Co Thai restaurant).  There is no probative evidence before the Tribunal that the application has progressed or that the applicant has had a face to face interview.  The applicant said at the hearing that she sent her resume to the new potential sponsor and that she has met with one of the business owners, Wanlop.  The Tribunal notes that it is Wanlop Techaskul who has signed the employment agreement dated 22 November 2018 and accepts this is the same person the applicant is referring to.  The applicant also said that her husband, the secondary applicant, has been offered a job as a chef by the same sponsor, but no documentary evidence was provided of this.

7. The applicant has had nearly a year to secure an approved nomination, well beyond the 90 days she had as required by condition 8107 of her visa.  The Tribunal accepts the application for nomination dated 27 November 2018 identifies Mrs Yotmadee, but it is not evidence of an approved nomination.  It was lodged only the day before the hearing and is considered, in this applicant’s circumstances, to be speculative at best. 

   Past and present behaviour of the visa holder towards the Department

8. There is no evidence before the Tribunal that the applicant has been unco-operative or purposefully uncommunicative with the Department.  It has been accepted that the lack of response to the NOICC was because the applicant did not receive the letter due to it being sent to a wrong email address.

   Would there be any consequential cancellations under s.140 of the Act?

9. If the applicant’s visa is cancelled, the visa of the secondary applicant, her husband, will also be cancelled because he will not be able to meet the criteria.  That is, he will not be a member of the family unit of, in this case, someone who holds a Subclass 457 visa.  This will not, of itself, result in the separation of the applicant from her husband.  On the evidence, they have worked together and moved around Australia together and it is reasonable to think that if the visa is cancelled that they may stay together.  There is no evidence before the Tribunal to suggest they won’t.

10. The applicant made it clear at the hearing, and the Tribunal accepts, that she and her husband have invested time into trying to establish themselves in Australia with an intention to pursue a migration outcome.  There has been no claim made, or evidence provided, that a consequential cancellation will mean the applicant and her husband will be separated or significantly disadvantaged.  Although it is accepted by the Tribunal that pursuing permanent migration while holding a Subclass 457 will no longer be available, and that the applicant will be subject to s.48 of the Act, the applicant and her husband will not be prevented from making other visa applications at such times as either or both of them is eligible to do so, either onshore or offshore, depending on their circumstances.

    Mandatory legal consequences

11. The Tribunal has considered whether cancellation would result in the visa holder being unlawful and liable 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.

12. The applicant currently holds a BVE which is valid until her matter is finalised.  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 that will allow her to remain in Australia and she will have the opportunity to depart Australia during whatever the relevant timeframe may be.  If she does not depart and does not hold a visa, this may result in detention or removal action, but it is not a necessary consequence of the cancellation decision.

13. It is acknowledged by the Tribunal that s.48 of the Act limits further application by a person whose visa has been cancelled, or whose application for a visa has been refused.  In this applicant’s circumstances relating to her visa cancellation, she may apply for certain prescribed classes of visas, but not others.  Regulation 2.12 prescribes the classes of visas, which does not include student, business or skilled visas.  There will be limits as to what visas, if any, the applicant will be eligible to apply for in Australia during any period when she is s.48 barred. 

    International and non-refoulement obligations and best interests of any children

14. The Tribunal has considered policy guidelines relating to whether Australian would be in breach of its international obligations which includes the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australian responsibilities regarding the rights of any children and the International Covenant on Civil and Political Rights.  The applicant confirmed at the hearing that she has no children.

15. On the evidence, the Tribunal is not satisfied that Australia would be in breach of its international obligations pursuant to any of the relevant international agreements.

    Family, business or other ties

16. The visa that is the subject of this review is not a permanent visa and consideration of whether the applicant has strong family, business or other ties in Australia is not applicable.

    Effect on victims of family violence

17. There is no claim or evidence before the Tribunal regarding this matter.

    Other relevant considerations

18. The applicant said at the hearing that she is of the view that the claim she has with the Fair Work Ombudsman relating to money she says she is owed is still ongoing and provided a copy of an email that suggests communication continues between the Fair Work Ombudsman and the sponsor.  The Tribunal’s view is that the applicant may continue to pursue this claim, perhaps with the assistance of her migration agent if she chooses to, regardless of her future visa situation.

19. The Tribunal explained at the beginning of the hearing what the issues were and thoroughly canvassed all relevant facts and matters with the applicant at the hearing and she was given the opportunity to give any oral evidence she wished to be considered.  The Tribunal has considered the claims and evidence individually and cumulatively and, on balance, is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa.

    DECISION

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

21. The Tribunal has no jurisdiction with respect to the second named applicant.

    Jennifer Cripps Watts
    Member