Zalavadia (Migration)

[2023] AATA 2820

Zalavadia (Migration) [2023] AATA 2820 (18 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Maulik Lavajibhai Zalavadia

Mrs Vandanaben Maulik Zalavadia

REPRESENTATIVE:  Mr Jitesh R Parekh (MARN: 0639447)

CASE NUMBER:  2210566

HOME AFFAIRS REFERENCE(S):          BCC2020/1931058

MEMBER:Andrew McLean Williams

DATE:18 August 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the first-named Applicant’s Subclass 187 -  Regional Sponsored Migration Scheme visa.

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

Statement made on 18 August 2023 at 4:37pm

CATCHWORDS

MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – position of Web Administrator – working for the sponsoring employer in the nominated position – genuine effort to commence the employment – fraudulent offer of employment – false business address – home based work – genuine position – financial hardship – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 48, 137Q, 140, 189, 198, 348
Migration Regulations 1994, r 2.50; Schedule 2, cl 187.213; Schedule 4, PIC 4013

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made on 14 July 2022 by a Delegate of the Minister for Home Affairs thereby cancelling the first-named Applicant’s Subclass 187 - Regional Sponsored Migration Scheme (‘RSMS’) visa, pursuant to s.137Q of the Migration Act 1958 (Cth) (‘the Act’).

2. The visa was cancelled on the basis of the Delegate having concluded that the Applicant had not worked for the sponsoring employer Infotech Electro Solutions as a web administrator, at the nominated business address at Kings Beach for a minimum period of two years, as required by the conditions pertaining to the granting of the visa.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is that with respect to the first-named Applicant (‘the Applicant’).

5. The secondary visa, as held by the Applicant’s wife Ms Vandanaben Maulik Zalavadia was automatically cancelled, in consequence of the cancellation of the primary visa held by her husband, the first-named Applicant.  In other words, the secondary visa was cancelled not by any decision per se, but instead by reason of the automatic operation of s.137T(1) of the Act. As no ‘decision’ was involved in the secondary visa holder’s visa cancellation, the Tribunal has no jurisdiction with respect to the secondary Applicant.

6. The Applicants each appeared before the Tribunal on 12 July 2023 and each of them gave evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages. 

7. On 17 July 2023 the Tribunal wrote to the Applicant requesting that he provide further evidence by no later than 31 July 2023 (‘the requested information’).  All of the requested information was provided to the Tribunal by the Applicant by 18 July 2023, and the requested information has now also been taken into consideration by the Tribunal in the preparation of these reasons.

8. The Applicants were represented in relation to the conduct of this review by their authorised representative, Mr Jitesh Parekh (MARN 0639447).  Mr Parekh provided a written submission to the Tribunal dated 30 June 2023.  Mr Parekh also accompanied the Applicants during their appearance before the Tribunal on 12 July 2023.

9. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should now be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. Under s.137Q, the Minister has the power to cancel a regional sponsored employment visa on specified grounds. ‘Regional sponsored employment visa’ means a visa of a kind included in a class of visas that has the words ‘Employer Nomination’ in its title and is prescribed by the regulations for the purposes of the definition in s.137Q(3). The visa held by the Applicant is one that is now subject to cancellation powers exercisable under s.137Q.

Does the ground for cancellation exist?

1. Under s.137Q(1), the Minister ‘may’ cancel the visa if satisfied that the visa holder has not commenced the employment referred to in the relevant employer nomination within the period prescribed by the regulations, and the person does not satisfy the Minister that they have made a genuine effort to commence that employment within that period. The relevant periods are specified in reg 2.50AA.

2. On 4 February 2017, Tonio Lawyers lodged an on-line application for a Regional Sponsored Migration Scheme (‘RSMS’) employment nomination on behalf of one Dhimant Rajendrakumar Patel, which nominated the Applicant for the sponsored employment position of Web Administrator employed by the Trustee for Infotech Solutions Family Trust, trading as Infotech Electro Solutions (hereinafter ‘Infotech Electro Solutions’).  On the same day, Tonio Lawyers also lodged an application for an RSMS visa on the Applicant’s behalf, for the Applicant to work in the web administrator role that had been nominated by Infotech Electro Solutions. 

3. The RSMS nomination was approved by the Department on 27 September 2016.  The Applicant was then granted a RSMS Visa on 7 March 2017, thus enabling the Applicant to commence work for Infotech Electro Solutions, yet on the terms specified in the conditions attaching to the visa. Pursuant to the requirements of the conditions attaching to the of visa, the Applicant was required to work for Infotech Electro Solutions for a period of at least two (2) years, at the business address that had been specified as part of the approved nomination. According to the Applicant’s signed employment contract with Infotech Electro Solutions (dated 2 December 2015) the Applicant’s employment position was to be situated at Unit 3, 47 Verney Street, Kings Beach, Queensland. Departmental records indicate that the Applicant arrived in Australia on 5 April 2017, meaning that he was required to commence his employment with Infotech Electro Solutions at the nominated address at Kings Beach before 5 October 2017.

4. On 24 January 2020, field enquiries were undertaken by officers from Australian Border Force (‘ABF’), by means of a site visit to the nominated business address at 3/47 Verney Street, Kings Beach.

5. The ABF officers observed the address to be a residential address rather than any form of business address.  The ABF Officers then spoke with the owner-occupier, who was a lady aged in her 70s.  That lady advised the ABF Officers that she had purchased the property at 3/47 Verney Road in September 2004, and had thereafter occupied the address continuously, and that she had never heard of Infotech Electro Solutions. Nor had she ever leased or sub-leased any part of 3/47 Verney Street to Infotech Electro Solutions, or to any other entity, as the address was exclusively used by her, continuously since 2004 as her domestic residence.

6. According to records held online by the Australian Securities and Investment Commission (‘ASIC’), the Trustee for Infotech Solutions Family Trust, trading as Infotech Electro Solutions, (ABN 90 823 937 3625), had been registered with ASIC on 10 November 2015. ASIC also lists the organisational representative for Infotech Electro Solutions as one Dhimant Patel, and the ASIC register lists the business address for Infotech Electro Solutions as 3/47 Verney Street, Kings Beach QLD 4551.

7. The foregoing information was enough for the Department to suspect that Infotech Electro Solutions had never operated from the Verney Street Kings Beach address specified on the ASIC register, and suggested that the regional employment sponsorship arrangement was not genuine.  Other information discovered by the Department and now covered by a non-disclosure certificate revealed that the offer of employment and contract letter sent to the Applicant by Infotech Electro Solutions had been signed fraudulently, by means of the affixation of a signature misappropriated from a third party who was not in any way associated with Infotech Electro Solutions.

8. On 26 November 2021 the Department wrote to the Applicant and gave notice of its intention to consider cancellation (‘NOICC’) of the Applicants visa, pursuant to s.137Q.

9. On 20 December 2021, 24 December 2021, 30 December 2021, and 7 January 2022, the Applicant’s former representative responded to the NOICC making representations and providing evidence and reasons as to why the Delegate should not proceed to cancel the Applicant’s Visa under section 137Q in the manner that had been foreshadowed. The Applicant maintained that he did work for Infotech Electro Solutions, albeit as a ‘work from home’ employee, at the direction of his employer.

10. On 14 July 2022, and for reasons given at that time, a Delegate of the Minister proceeded to cancel the Applicants Subclass 187 Visa. It is this decision that the Applicant now seeks to have reviewed before the Tribunal.

11. During the Tribunal hearing on 12 July 2023 and in the submissions received by the Tribunal prior to the hearing, the Applicant submitted that his visa should not be cancelled. A summary of the reasons for that is as follows:

• The Applicant found the advertisement for the position as a web administrator with Infotech Electro Solutions on-line.  He had an interview via Skype with “Dan”, even before he had left India, after which he was offered the job as a web administrator working for Infotech Electro Solutions;

• The Applicant flew to Australia with his wife, where they were met at the airport by Dan, who drove them back to the Sunshine Coast.

• Shortly after settling in on the Sunshine Coast, the Applicant contacted Dan and enquired when he would be starting his employment.  Dan asked the Applicant to meet him on the street, in Birtinya.  At the meeting in Birtinya the Applicant was informed that his work would be home-based, and he was to access the work tasks by means of the Infotech Electro Solutions portal.  All subsequent dealings with Infotech Electro Solutions were to be via the portal.  The Applicant never worked in the office and always worked alone. The Applicant was told by Dan he had to keep living on the Sunshine Coast for two years in order to comply with the conditions of his visa

• In addition to his employed role with Infotech Electro Solutions the Applicant also helped his wife with her work, as a cleaner.  The Applicant also did some free-lance work, including web design and maintenance, graphic design, digital marketing, and web hosting.

• After the Applicant had worked for Infotech Electro Solutions for one month more the minimum required period of two years, he left their employ and looked for alternative, better paid employment.  The Applicant found work in Brisbane.

• The Applicant claims that he did work for the nominated employer, albeit he did not work at the specified address at Verney Street at Kings Beach because at the commencement of his employment he was directed by his employer to work from home, via a portal.  As the Applicant no longer works for Infotech Electro Solutions he no longer has access to the portal, and is thus unable to demonstrate any of the work that he claims to have performed for Infotech Electro Solutions during the period of his employment.  The Applicant submits that he was powerless to control the employee and that he merely did as he was instructed by his employer.

1. The Applicant has not been able to obtain or provide any evidence in the form of either a statutory declaration or affidavit from a representative of his claimed former employer Infotech Electro Solutions.

2. As further evidence of his claimed employment, the Applicant has submitted:

• copies of his tax returns for the years 2017 – 2019, when he claims that he worked for Infotech Electro Solutions.  These do show income receive from Infotech Electro Solutions, as well as tax payments to the ATO from the Applicant as a PAYE employee.  It is noted by the Tribunal that only $5,510 was paid as superannuation to Sunsuper by Infotech Electro Solutions, morew than eleven months after the Applicant left his claimed employment with that entity, and in circumstances in which p[ayslips produced to the Tribunal indicate that $459.17 was deducted each month from the Applicant’s pay for more than two years for payment into Sunsuper;

• Copies of his bank statements (CBA account ending in 3811) showing monthly deposits of $3,867.33, which the Applicant alleges were his net salary payments;

• Copies of residential tenancy agreements that show the Applicant and his wife were residing at addresses on the Sunshine Coast during the period of the RSMS visa;

• A bundle of payslips that the Applicant claims that he received from Infotech Electro Solutions; and

• A tax invoice, dated 16 March 2017 from the ‘Regatta One’ Business Centre, addressed to Infotech Electro Solutions charging $154 for acting as the ‘virtual mail’ and registered office for Infotech Electro Solutions for the period 1 April 2017 - 30 June 2017, indicating that the invoiced amount had been paid, via a previously credited amount.

1. In the absence of specific evidence from the employer, the Tribunal is not prepared to accept the tax returns as proof of actual employment, on the basis these may have been prepared so as to create evidence of employment.  In the circumstances as presented in this case the Tribunal requires strong corroborative evidence of employment before the provenance of any document can be accepted.  In an of themselves these tax lodgements do not show the genuineness of the Applicant’s claimed employment.

2. The Tribunal has examined and considered the Applicant’s bank accounts for the account ending in 3811.  After the hearing the Tribunal also requested and received from the Applicant further bank statements from another CBA bank account, ending in 3838.  Alleged salary payments into account 3811 did not occur in accordance with any regular pattern, as might be expected in the case of payments from an employer.  These also occurred monthly, rather than weekly, as specified in the employment contract.   The accompanying credit reference for the EFT salary deposits indicates only “Transfer from CBA Netbank”, without any indication that the payment was, in fact, from a business account connected with Infotech Electro Solutions.  In the absence of acceptable evidence that these payments were received by the Applicant from Infotech Electro Solutions, the Tribunal is not prepared to accept the bank statements as evidence of genuine employment, nor of the transfers in the sum of $3,867.33 to represent wage or salary payments.

3. At the Tribunal hearing the Tribunal requested that the Applicant provide bank statements for another CBA account ending in 3838, on the basis that the bank statements for the account ending in 3811 revealed prolific monthly transfers between these two accounts.  The requested bank statements were subsequently provided, yet revealed no more than the fact of the transfers between the two CBA accounts held in the name of the Applicant.

4. The Tribunal accepts that the Applicant resided on the Sunshine Coast at all relevant times and accepts the veracity of the residential tenancy agreements now submitted by the Applicant in support of that.

5. The payslips submitted to the Tribunal nominate the Applicant’s manager as ‘Dhimant’ which does match the organisational representative listed with ASIC for Infotech Electro Solutions, yet these payslips indicate that the business address for Infotech Electro Solutions was at 2 Innovation Parkway at Birtinya.  The Tribunal further notes from ‘Exhibit 1’ – as submitted by the Applicant during the proceedings that these payslips were not received by the Applicant contemporaneously with the alleged monthly salary deposits to his nominated bank account, and that these were sent to him in batches, attached to e-mails dated 22 August 2017; 17 March 2018; 18 March 2018; and 25 April 2019.  There are also e-mails back to the un-named sender at ‘[email protected]’ from the Applicant requesting that some of the details in the payslips be altered, before the amended payslips were then re-sent to the Applicant, as “I need to give it tomorrow”.  These emails suggest that the payslips were not contemporaneously generated at the time of salary transfer and were created subsequently in order to create proof of salary payment.   

6. Given the generic nature of the format for these payslips, and given the circumstances of their creation; and in the absence of specific evidence from the employer attesting to the fact of actual employment and of actual payment to the Applicant from the employer and not from any other source, the Tribunal is not prepared to accept the provenance of the payslips and does not accept these as acceptable proof of genuine employment.

7. Finally, the Tribunal regards the tax invoice dated 16 March 2017 from ‘Regatta One’ Business Centre, addressed to Infotech Electro Solutions as equivocal evidence regarding the question whether the Applicant was in genuine employment.

8. The Applicant claims that he did work for Infotech Electro Solutions as a web administrator, albeit that he worked from home, as he had been directed to do that at the commencement of his employment in Australia.  Yet when asked by the Tribunal to cite examples of the websites that were worked on by him on behalf Infotech Electro Solutions, the Applicant struggled to recall any examples and gave what the Tribunal now assesses as unsatisfactory and deflective evidence in circumstances in which the Applicant should have been able to be expected to recall far more of the detail of the employment tasks that he claims were performed by him.

9. In the absence of satisfactory corroborative evidence of actual employment of the Applicant by Infotech Electro Solutions the Tribunal is unable to be satisfied that the employed position was genuine.  The Tribunal notes that in addition to his claimed employment as a website administrator the Applicant also undertook freelance work of his own outside of the claimed employment, and that the Applicant also assisted his wife with her employment, as a cleaner.  In all the circumstances the Tribunal concludes that the Applicant’s employment position was not genuine.

10. For these reasons, the Tribunal is satisfied that the ground for cancellation under s.137Q exists. As the power to cancel under s.137Q is discretionary, the Tribunal must next proceed to consider whether the visa should be cancelled.

Should the visa be cancelled?

1. There are no mandatory matters specified in either the Act or the Regulations that must be considered in relation to the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including the various matters raised by the Applicant, as well as the matters in the Department’s Procedures Advice Manual ‘PAM3: Act - Visa cancellation instructions - Regional sponsored employment visas’ (‘the PAM3’).

2. Section 3.2 of the PAM3 sets out guidelines for assessing genuine effort.  For cancellation to occur, the Delegate needs to be satisfied as to whether the visa holder has made a genuine effort to commence the employment, or to complete the two-year period of employment required by the granting of the visa. 

3. When assessing that issue, factors that need to be considered include the possibility of the visa holder having colluded with the employer as part of an arrangement to help the visa holder enter or remain in Australia.  In the circumstances as they appear in this matter, and notwithstanding the evidence given by the Applicant, which is not assessed by the Tribunal as having been credible evidence, the Tribunal considers that the Applicant did willingly participate in an arrangement designed to facilitate the Applicant entering and remaining in Australia, and that the Applicant never worked for Infotech Electro Solutions at the nominated business address or from home via a portal, as now claimed by the Applicant. 

1. As such the Tribunal does not consider that the Applicant failed to commence employment within the six month period indicated in section 3.2 of the PAM3 ‘for reasons that were beyond his control’.  Rather, it appears to the Tribunal as being more probable that the nomination application was lodged on behalf the Applicant based on deliberately misleading information with the intention of facilitating a positive visa grant outcome for the Applicant, rather than in order to fill any genuine position vacancy in a regional part of Australia. 

2. Accordingly, the Tribunal concludes that the Applicant did not make a genuine effort to commence employment with the nominating employer within the period prescribed by the regulations.

Other considerations  

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

1. The regional sponsored migration scheme was created in order to assist Australian employers to nominate skilled workers to fill full-time vacancies in circumstances where there is a genuine need for an employee in a business that is located in regional Australia, to support regional economies and communities. During his evidence before the Tribunal the Applicant states that he worked for Infotech Electro solutions is a web administrator, albeit from home rather than at the nominated business address, and that he resided on the Sunshine Coast for two years. The Applicant also states that he has his own ABN and did some freelance work on the side, and that he assisted his wife to perform cleaning work on the Sunshine Coast. The Applicant’s evidence was that after working for Infotech Electro solutions for two years and one month he and his wife then relocated to Brisbane, where they both found alternative employment. 

2. In this case the applicant’s RSMS Visa was granted based on the nomination by Infotech Electro Solutions for the Applicant to work as a web administrator for Infotech Electro Solutions based at Kings Beach Queensland, a regional location. 

3. Departmental investigations have ascertained that Infotech Electro Solutions never operated from the officially listed address, and that the offer of employment letter sent to the Applicant was fraudulently signed.  The Tribunal does not accept the applicant’s evidence when he asserts that he did work for Infotech Electro Solutions, albeit based from his home on the Sunshine Coast instead of working from the employers office location. The purpose of the Applicant’s travel to and stay in Australia does not accord with the purposes and intent of the RSMS Visa scheme, such that the Tribunal now gives this consideration very significant weight in favour of visa cancellation.

The extent of the visa holder’s compliance with any conditions subject to which the visa was granted

1. The Applicant’s RSMS visa is granted with no conditions imposed, other than for the requirement that the Applicant work for the nominated sponsor at the location specified in the nomination application, which was also linked to the grant of the applicant’s RSMS visa. No additional weight - either for or against cancellation of the visa - is now attached to this consideration by the Tribunal.

The degree of hardship that many be caused to the visa holder and any family members, in the event that the visa is cancelled

1. The Applicant is a married man, now with one young son aged approximately seven months, who was born in Australia on 31 January 2023. Both the Applicant and his wife gave evidence to the Tribunal to the effect that they are struggling financially as they are currently without work rights and are subsisting in Australia on savings. Much of their money has been expended on legal fees.  In the event the Applicant and his wife were now required to return to India they claim that they have no place to reside and that it would be difficult for them to survive, and that it would be difficult for them to find employment in India after having been in Australia for so long, having resided in Australia permanently since 5 April 2017. The Applicant and his wife state that they have invested their efforts and life savings into their aspiration to settle in Australia on a permanent basis and hope to raise their child as an Australian citizen, as well as to have one more child. In the event that the Applicant and his wife are now required to return to India they feel that they will experience social stigma and shame in India, on the basis of them returning from Australia as failures.

2. The Tribunal notes that Public Interest Criterion 4013, which prevents lodgement of a valid application, or being granted, certain visas for a period of three years following Visa cancellation, does not apply to cancellation on the grounds under present consideration. This means that cancellation will not serve to prevent the Applicant from being able to lodge a further valid application for a relevant visa to come to Australia from India, nor from his being able to be granted a new visa, providing that the applicant is able to meet all of the usual requirements that may be applicable to such visa.

3. In all the circumstances the Tribunal accepts that the Applicant and his family will experience some financial hardship in the event that they are required to return to India, however the Tribunal does not accept that the Applicant and his wife will be unable to re-establish themselves in India, given that both of them are Indian citizens, have family in India, and have prior work experience in India.  The Applicant will also return to India with the benefit of his Australian qualifications obtained whilst in Australia on a student visa as well as benefiot of the additional experience obtained by the Applicant during the operation of his web design business which he maintained whilst in Australia. The Tribunal therefore gives this consideration only minor weight in favour of the Applicant and against cancellation of the Visa.

The circumstances in which the ground for cancellation arose, such as whether there were any circumstances which were beyond the visa holder’s control

1. The circumstances surrounding a ground for cancellation arising in this case were that Australian Border Force conducted a field audit and ascertained that Infotech Electro Solutions were not conducting business from the address advised to the Department at the time that the RSMS nomination was originally approved, and that the employment offer letter sent to the Applicant had been fraudulently signed by means of the unauthorised insertion of the signature of a third party who was in no way associated with Infotech Electro Solutions. The circumstances are such to enable a conclusion that the nomination of a position for the Applicant was an artifice, solely so as to facilitate the Applicant travelling to Australia with work and residency rights.  The Applicant says that he did work for Infotech Electro Solutions, and that it is not his fault that he did not work from the approved location, and that in this regard all of these circumstances were entirely beyond his control.  Yet no acceptable credible evidence has been produced by the Applicant to show that he was employed for more than two years by Infotech Electro Solutions in the manner now asserted by him such that it appears that the Applicant may have been complicit in maintaining the façade of employment, by reason of his lodging tax returns that create the impression of employment by Infotech Electro Solutions. The Tribunal now gives this consideration further significant weight in favour of cancellation of the visa.

The visa holder’s behaviour in relation to the Department, now and on previous occasions

1. Throughout his dealings with the Department after receipt of the NOICC, and also now, when before the Tribunal, the Applicant continues to maintain that he did commence employment with the nominated employer.  On the evidence before the Tribunal that claim is not accepted. 

2. In all other respects there is no information before the Tribunal to suggest that the Applicant has engaged in any behaviours of concern. The Tribunal gives this consideration some further weight in favour of cancelling the visa.

Whether there are other persons in Australia whose visas would, or may, be cancelled under s.137T of the Act

1. The Applicant’s wife Ms Vandanaben Maulik Zalavadia holds her visa as a member of the Applicant’s family unit. In the event that a decision made by the Tribunal upholding the cancellation of the Applicant’s visa, her secondary visa will also be subject to cancellation because of the effect of section 137T of the Act. The Tribunal now gives this consideration some weight against cancellation of the visa.

Whether there are mandatory legal consequences to the cancellation decision

1. In the event that the Applicant’s visa is cancelled, both the Applicant and his wife will become unlawful non—citizens in Australia, and may become subject to detention under section 189 and removal from Australia under section 198, if they do not voluntarily depart Australia beforehand.  As both the Applicant and his wife are citizens of India, it would be open for them to return to India so as to entirely avoid the risk of immigration detention or otherwise mitigate the amount of time that they may potentially be required to spend in immigration detention.

2. Both the Applicant and his wife would become subject to the bar under section 48 of the Act, thus limiting the Applicant’s options in terms of applying for further visas from onshore within Australia however, the Applicant will not be affected by public interest criteria 4013 (‘PIC 4013’) and therefore will not be prevented from applying from overseas for a new visa once the Applicant has established his eligibility for that visa.

3. The Tribunal now attaches some weight against cancellation of the visa to this consideration, albeit in circumstances wherein PIC 4013 does not apply, the amount of weight that now attaches against visa cancellation is only minimal.

Australia’s international obligations under the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC)

1. The Applicant and his wife have now had a son who was born on 31 January 2023, in Brisbane.  In the circumstances, Australia’s international obligations under the Convention on the Rights of the Child (CRC) as well as under the ICCPR do become relevant considerations.

2. The best interests of any infant child are primarily served by that child maintaining a close and immediate connection with his or her biological parents. In the circumstances where both the child’s parents are Indian citizens who may be subject to return to India, the best interests of that child suggest that the child should also relocate to India, so as to maintain that connection. 

3. The Tribunal acknowledges that both the Applicant and his wife hold strong aspirations to raise their current son and another planned child in Australia and for their children to be educated, and to eventually establish careers after exposure to the better opportunities and advantages of an upbringing in this country.  In that context, the Tribunal now attaches weight in favour of a decision not to cancel the Visa to this consideration.

Whether the cancellation would lead to removal in breach of Australia’s non-refoulment obligations.

1. Both the Applicant and his wife are citizens of India the applicant has not applied to protection and there is no information before the tribunal is to suggest that if the applicant is removed from Australia and return to India that this would result in him suffering either persecution or the risk of significant harm. In the circumstances the tribunal is satisfied that the applicant and his wife are able to be removed from Australia without Australia thereby falling foul of Australia’s non-refoulement obligations. Some further weight in favour of Visa cancellation attaches because of this consideration

Any other relevant matters (community connections)

1. Both the Applicant and his wife have lived continuously in Australia since 2017 and have a son who was born in Australia on 31 January 2023. The Tribunal notes various letters of support for both the Applicant and for his wife, and accepts that each of them have now established links and connections with the local Australian community.  The Tribunal has considered the likely impact on these links and connections that would be caused by cancellation of the Applicant’s visa, and now gives this consideration some further weight in favour of a decision not to cancel the visa.

2. Considering the circumstances as a whole, those considerations weighing in favour of visa cancellation now outweigh those considerations in support of not cancelling the Applicant’s visa.  Accordingly, the Tribunal concludes that the visa should be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the first-named Applicant’s Subclass 187 -  Regional Sponsored Migration Scheme visa.

2. The Tribunal has no jurisdiction with respect to the secondary Applicant, Ms Vandanaben Maulik Zalavadia.

Andrew McLean Williams

Member