Zaman (Migration)

[2019] AATA 6041

Zaman (Migration) [2019] AATA 6041 (17 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ashraf Uz Zaman
Mrs Tanzila Rashid Nishi

CASE NUMBER:  1907593

HOME AFFAIRS REFERENCE(S):           BCC2018/6051360

MEMBER:Danielle Galvin

DATE:17 December 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 second named applicant.

Statement made on 17 December 2019 at 4:19pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – genuine position – business traded only for a few days – consideration of discretion – purpose of visa no longer exist – observance of procedural requirements – degree of hardship – misled the Department – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 66, 116, 119, 120, 121, 127, 140, 348
Migration Regulations 1994 (Cth), r 2.43

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80
Zubair v MIMIA (2004)139 FCR 344

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 March 2019 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(g), a prescribed ground for cancelling a visa applies to the holder, on the basis that the standard business sponsor, GRAND TOTAL SERVICE PTY LTD, trading as the Lake Williams Café & Restaurant, (the sponsor), and 3 other registered businesses of the sponsor (Taste of South Asian Cousins-deregistered, Taste of South Asian Cuisine-deregistered and Red Chillies Armidale) have never or are no longer in operation and therefore the position associated with the nomination was not genuine. The primary applicant was granted his visa on 19 December 2016 to work for the sponsor in the occupation of chef for a period of 4 years expiring on 19 December 2020.

3. The delegate found in their decision to cancel the visa, a copy of which was provided to the Tribunal by the applicant, that the site of the Lake Williams Café & Restaurant only traded for a few days, if at all, before closing in March 2018. Consequently the delegate found that the visa holder could no longer satisfy cl.457.223(4)(d) of the Migration Regulations 1994 (the Regulations) as the position associated with the nominated occupation did not appear to be genuine or exist. The result was that Ashraf Uz Zaman’s Temporary Business Entry (class UC) Temporary Work (Skilled)(Subclass 457) visa was cancelled under section 116(1)(g) of the Act as a prescribed ground applies under r.2.43(1)(kb)(iii) of the Regulations.

4. Prior to the cancellation, and on 20 February 2019, the Department sent a Notice of Intention to Consider Cancellation, a copy of which was provided to the Tribunal by the applicant. In that letter the Department provided a history of events. The standard business sponsor who nominated the visa holder in the most recently approved nomination for the visa was GRAND TOTAL SERVICE PTY LTD trading as the Lake Williams Café &Restaurant (the sponsor) whose nomination was approved on 8 December 2016. The visa holder was nominated to work as a Chef (ANZSCO Code 351311) at the Lake Williams Café & Restaurant at 53 Bombala St. Nimmitabel NSW 2631.

5. According to the delegate, the leasing agent for the property confirmed to the Department that the premises were leased by the sponsor in 2016. However, the business only traded there for a few days and the lease was terminated for non-payment of rent. On 4 December 2017 a subsequent entry application was made for the visa holder’s spouse to be included as a secondary applicant on his 457 visa. According to the delegate, the sponsor provided a document in support of this application dated 29 November 2017 signed by the purported director of the Lake Williams Café& Restaurant. The department appears not to have been advised that the business only traded for a few days. The business appears to no longer be a registered business of the sponsor. The sponsor has 3 other registered business names but they do not appear to be operating if they ever did. The conclusion was that the position associated with the nominated occupation is not genuine and therefore r.2.43(1)(kb)(iii) applies and the visa may be cancelled under s.116(1)(g). The applicant did not respond to the notification.

6. 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 and primary 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 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 the second named applicant.

7. On 30 July 2019 the Tribunal, in writing, invited the applicant to comment on and respond to information that the position associated with the nominated occupation may not be genuine as the businesses registered to the sponsor have not or do not operate.

8. The Tribunal has received the following documents in addition to the application:

   ·Melbourne Shortstay apartments Pty Ltd full time employment contract signed and dated 11/10/18 employing the second named applicant, Tanzila Rashid Nishi;

   ·Visa application;

   ·First aid statement;

   ·Certificate of achievement in commercial cookery 15/2/16;

   ·Statement of results dated 11/2/16;

   ·Certificate in commercial cookery dated 1/2/16;

   ·ANZ account summary;

   ·Overseas student enrolment in graduate diploma in early childhood development by Ms Nishi;

   ·RMIT invoice for Ms Nishi;

   ·Employment contract with Melbourne Shortstay apartments with applicant dated 12/5/19 but not signed by employer;

   ·(the first) Submission by the applicants’ agent dated 13 August 2019.

9. The agent’s submission conceded that “the conduct which enlivened the decision to exercise powers under section116(1)(g) is made out, however, the applicant wishes to attend a hearing at the AAT to give oral evidence of the hardship that he will face should the decision be taken to affirm the decision to cancel the visa.” The submission claims that the primary applicant did not receive the earlier mail from the Department. The submission claims that the employment relationship came to an end with Grand Total Pty Ltd when the sponsoring business was deregistered and it is claimed that this was beyond the control of the primary applicant. Further, it is submitted that whilst the primary applicant “has breached conditions attached to his Subclass 457 visa..…Following cancellation of his Subclass 457 visa on 21 March 2019, Mr Zaman secured a Bridging E visa on the 4^th of April 2019. Mr Zaman has not breached the conditions of the Bridging Visa E.”

10. The submission referred to the financial outlay by the secondary applicant in relation to tuition fees for an RMIT course of $10,800 and a further amount to be paid during the review period. The agent submitted that the second-named applicant’s course is due to be completed on 31 December 2019 and if the Department decision was affirmed the applicants would suffer “serious financial hardship”. “Financial hardship will also lead to psychological distress”. The Tribunal notes that this claim was made repeatedly. It is further alleged that the career ambitions of the applicants will not be fulfilled if the Department decision is affirmed and both will therefore suffer psychological hardship. The Tribunal notes that the only evidence submitted in support of these contentions were the various bank statements of the applicants, historic records of the second-named applicant’s mental health together with a recent letter from a psychologist from RMIT, created following the hearing. For the reasons explained in this decision the Tribunal has given minimal weight to these claims.

11. The applicants appeared before the Tribunal on 29 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Tanzila Rashid Nishi, the wife of the primary applicant and secondary applicant. The applicants had been married on 14 August 2015.

12. The applicants were represented in relation to the review by their registered migration agent.

13. At the hearing the primary applicant stated that he had come to Australia to study in 2014 on a student visa. He arrived in Melbourne and then travelled to Sydney to work as a cook for Grill King working part time having transferred his studies to Sydney. In Sydney he studied a Bachelor of Business at Kings Own Institute, however, he did not complete these studies. He had decided to become a cook or chef and became qualified in February 2016. He alleged that, through a friend, he was introduced to Mahmudul Hassan, the manager of the sponsor. The primary applicant secured the nomination of the sponsor to pursue employment as a chef.

14. The primary applicant stated that he undertook some training at 2 different sites in the Summer of 2015. However, when he attended the Café site in November 2016, Mr Hassan advised him that it was being renovated. Thereafter he had difficulty contacting Mr Hassan once his visa was approved. He met with Mr Hassan in May or June 2017. The primary applicant stated that he was not paid for the training he undertook. The primary applicant did not commence paid work with the sponsor. The primary applicant did not advise the Department of these circumstances and arguably was complicate in misleading the Department when an application was made for a secondary visa for his wife on 4 December 2017. The delegate noted that the application attached a document dated 29 November 2017 signed by the director of the Lake Williams Café and Restaurant.

15. Following this period the primary applicant claims that he was not working and was staying with friends. Ultimately he met with Mr Hassan in May or June 2017 and went to a site in Nelson Bay for approximately one week. However, work was not forthcoming. He stated that he avoided contacting the Department at this time as he was concerned about the status of his visa.

16. The primary applicant believes that he was misled about the opportunity to work with the sponsor. He earned money from time to time as a labourer and a cleaner and was paid in cash. His wife stayed in Melbourne whilst he pursued the sponsor for work. He claimed that the migration agent who prepared the documents in relation to the visa application and sponsorship application was a “Mr Hugo”. The primary applicant claimed to have paid Mr Hugo to prepare the documentation for his wife’s visa application. Despite the fact that work had not commenced with the sponsor the application in relation to the secondary visa applicant was pursued as if the sponsorship was genuine.

17. The primary applicant stated that in the event that his visa was cancelled he would lose his current employment as a cleaner for Shortstay Apartments. He stated that he has no savings and would be left with nothing. He further stated that he has incurred debt in Australia and that the family business in Bangladesh was sold and his father has retired. He confirmed that he has 2 bank loans with the Commonwealth Bank and owes approximately $10,000 on a visa card used to pay rent. He further stated that he sent money to his father who was in hospital as he had been shot and robbed. The primary applicant stated that he incurred debt as he believed he had secure employment with the sponsor. However, the Tribunal finds this to be improbable given that he did not commence employment with the sponsor and incurred the debt over the period after which he was aware that employment was not forthcoming with the sponsor. The primary applicant did not produce evidence of payments to his family in Bangladesh. The bank statements do not reveal transfers of funds abroad. The primary applicant did not submit evidence as to why an alternative sponsor was not sought when Grand Total Pty Ltd did not provide the employment he had planned for. He gave evidence that he avoided being full and frank with the Department as to his circumstance but nonetheless allowed the arguable misrepresentation about his employment to be confirmed with the Department when seeking a visa for his wife as a member of his family unit. The primary applicant claims that he would suffer psychologically if the delegate’s decision was affirmed. However, there was no evidence submitted in support of any mental health issues at the hearing or prior to it in relation to the primary applicant. When asked by the Tribunal as to why there was no evidence of his claims in relation to his mental health the primary applicant claimed that he could not afford to pay for such services. There is no doubt that the primary applicant does not wish to have his visa cancelled as he expressed a desire to stay in Australia. However, due to a lack of evidence in support of his claims of hardship, the Tribunal places minimal weight on the submissions made in relation to his family’s financial dependency, financial or personal circumstances.

18. Mrs Nishi stated that she came to Australia to study and is currently enrolled in a course at RMIT having paid the enrolment fees on 14 August 2019.

19. The Tribunal allowed the agent for the applicants to provide a further submission and other documentation to the Tribunal by 19 November 2019. On that day the applicant’ agent provided post hearing submissions to the Tribunal attaching the following documents:

    ·Absolute Sale Deed , People’s Republic of Bangladesh;

    ·Commonwealth bank statement of primary applicant for period 11/3/19-30/6/19 showing a loan balance of $6,843.01;

    ·Death Certificate

    ·Marriage Deed;

    ·First Aid certificate of primary applicant issued for 3 years from 11/2/16;

    ·Certificate IV in commercial cookery issued 15/2/16 to primary applicant;

    ·Certificate III in commercial cookery issued 11/2/16 to primary applicant;

    ·ANZ bank statement of secondary applicant for the period 20/9/19-20/10/19 showing credit card debt of $8,263.90;

    ·Hospital records for family members;

    ·RMIT counselling service open letter from Beth Angus, clinical psychologist and student counsellor, dated 18/11/19 stating that the secondary applicant was seen at the counselling service in 2012 and 2013, according to records, for “psychological distress depressive symptoms and self-harm”. “Tanzila re-presented and met with me on 13/11/19. It is my opinion that being forced to leave her home in Melbourne would have a detrimental impact to her mental health”;

    ·Bachelor of Design (Architecture) for secondary applicant issued 14/12/17;

    ·AAMI car insurance details, the applicants being the insured;

    ·Voda phone bill of the primary applicant;

    ·Utility charges;

    ·Bundle of RMIT fees.

    ·Ms Nishi is in debt in relation to an ANZ credit card in the amount of $8,099.59 as at 21 July 2019.

20. The submission alleges that affirming the delegate’s decision will lead to financial hardship to the applicants and their extended family abroad. The submission claims that the applicants have now secured permanent employment and the primary applicant is now, due to a variety of issues, responsible for his family in Bangladesh. However, the Tribunal has not been provided with evidence of financial support for the extended family abroad. As stated the primary applicant incurred debt in the knowledge that the basis for his visa never eventuated. The primary applicant did not seek an alternative sponsor and avoided alerting the Department as he wished to remain in Australia. He was arguably complicate in misleading the Department as to his circumstances when an application was made for a secondary visa for his wife. The primary applicant set upon a path in full knowledge that the basis for his visa, to fill a skills shortage and work with an approved sponsor, did not eventuate. The Tribunal places minimal weight on these claims accordingly.

21. The history of the secondary applicant‘s mental health, combined with the financial burden on the primary applicant are the basis for claiming hardship if the decision was to be affirmed. The Tribunal notes the evidence submitted as to the secondary applicant’s mental state historically predated her marriage and the secondary visa application. The recent letter from the RMIT psychologist was sourced after the hearing, there being no other evidence of her mental state. The Tribunal therefore places minimal weight on these claims.

22. It is further alleged that the grounds for cancellation were as a result of reasons beyond the control of the primary applicant, being the de-registration of the business. It is also alleged that the primary applicant has cooperated with the department. The agent has not provided the date of the purported de-registration. The Tribunal has relied on the evidence of the primary applicant in relation to the circumstances of the loss of the sponsor. What was apparent at the hearing was that the employment did not cease as a result of the alleged deregistration of the business but rather never commenced. The primary applicant was therefore on notice almost immediately that the role was not available to him. The primary applicant did not notify the Department and arguably misrepresented his circumstances to the Department when seeking the secondary visa for his wife. He provided no explanation as to why an alternative sponsor was not sought. The claim that the ambitions of the applicants would not be achieved if the delegate’s decision was affirmed was supported by the second-named applicant’s desire to complete the Graduate Diploma in Education (Early Childhood) that she is currently undertaking. However, there was no further evidence submitted to the Tribunal as to the applicants’ ambitions other than to remain in Australia. There is no doubt that the applicants would be disappointed if the delegate’s decision was affirmed. However, the Tribunal has not received sufficiently persuasive evidence as to their claims of hardship. Consequently, the Tribunal places minimal weight on these claims.

23. 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

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

25. The subclass 457 visa is a temporary visa for the purposes of employing highly skilled foreign workers on a temporary basis on the basis that the role cannot be filled by an Australian citizen.

26. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(g) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

    s.116(1)(g) - prescribed ground

27. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(kb) is relevant. This ground states, in the case of the holder of a subclass 457 visa, that was granted on the basis that the applicant met the requirements of cl.457.223(4), the Minister is satisfied that (i) the holder did not have a genuine intention to perform the occupation mentioned in cl.457.223(4)(d) at the time of the grant of the visa or (ii) the holder has ceased to have a genuine intention to perform that occupation of (iii) the position associated with the nomination is not genuine.

1. The first submission by the applicants’ agent concedes that the grounds for cancellation are made out. The decision of the delegate is not disputed in relation to the grounds found to support the decision to cancel the visa. The Tribunal also finds that the position associated with the nomination was not genuine and the grounds for cancellation are made out.

2. The Tribunal has considered all the material before it and is satisfied that the ground for cancellation in s.116(1)(g) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

   Consideration of discretion

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’.

   Purpose of travel and stay in Australia

4. The visa holder/primary applicant was granted the visa for the purpose of being able to fill a skills shortage and work in Australia for an approved sponsor in a skilled occupation for which they were specifically nominated and which could not be filled from within the Australian workforce.

5. The primary applicant was granted a subclass 457 visa on 19 December 2016 to work for the approved sponsor, Grand Total Service Pty Ltd in the nominated position of a chef at the Lake Williams and Café Restaurant .Given that the primary applicant did not ultimately assume this role nor any other with any associated entities or businesses of the sponsor, the purpose for which the visa was granted no longer exists if it did at all.  The primary applicant stated that he did not inform the Department of the fact that he did not work for the sponsor as planned as he feared what might happen. The result would have been that the Department would have been on notice that the position was not genuine at an earlier time. The primary applicant was therefore aware that the purpose for the grant of the visa did not exist and chose to continue to reside in Australia on a false premise. As stated above the Tribunal has given minimal weight to the claims of the applicants as to their financial, family and psychological circumstances and therefore finds that there is insufficient evidence before the Tribunal of a need to stay in Australia on any other basis other than their desire to do so.

6. The Tribunal finds that this evidence favours the exercise of the discretion to cancel the visa.

   Circumstances of the visa cancellation

7. The cancellation process commenced when the Department sent a Notice of Intention to consider cancellation of the subclass 457 visa, under s.116 of the Act, by registered post to the primary applicant on 20 February 2019. The letter was addressed to the address sourced by the Department for the primary applicant and to an email address sourced by the Department attributed to the primary applicant. The agent’s first submission notes that the email address nominated in the subclass 457 visa application was that of his historical agent. The Tribunal notes that the primary applicant did not advise the department of his circumstances in relation to his employment nor where he was residing. The primary applicant was invited to respond within 5 working days of the receipt of the notice.

8. The second submission, of the agent, appears to suggest that there was a failure to afford procedural fairness to the applicants when notifying them of the potential cancellation and that the ultimate cancellation was not notified correctly. The primary applicant confirmed, at the hearing, that he did not inform the Department of what had occurred in relation to the sponsorship nor did he provide updated addresses to the Department in order to be contacted. He stated that he was afraid of alerting the Department and was concerned about his visa status. The primary applicant therefore consciously decided to avoid communicating with the Department.

9. It has been submitted by the agent that a breach of section 66(2)(d)(ii) of the Act occurred in relation to the notification of the Department’s decision. Section 66 relates to decisions to grant or refuse a visa and not cancellations per se. The relevance of this submission is unclear. The agent appears to submit that the notification must state the time in which the application for review may be made and refers to the Departmental notification of 21 March 2019. As the applicants have been afforded a merits review the Tribunal cannot determine the point being addressed by the agent.

10. The agent further submits that a failure to comply with section 127 (2) of the Act means that there has been no notification of the decision. Section 127 states that the Minister must notify a person if he or she decides to cancel the person’s visa. Section 127(2) sets out the required content of the notification letter, which must be in writing (r.2.45). However, the section does not specify the way in which the notification of the cancellation decision is given to a person. Pursuant to section 494A, of the Act, the Minister may give the notification to the person by any method they consider appropriate. The agent appears to suggest that the stated requirement that an application for a merits review of the Department decision be made within 7 working days of the time they were taken to have received the letter, does not comply with the wording of 127(2)(c)(ii) which requires the notification to state the time in which the application for review may be made. The agent refers to section 412(1)(b) which refers to Part 7 applications for review. This application falls under Part 5 and the relevance of the agent’s submission is unclear and arguably misconceived.

11. Section 119 of the Act prescribes the process of the notice of proposed cancellation, s.120 requires that relevant information be contained within that notice and s.121 deals with the requirements of the invitation to comment on the notice. Compliance with ss.119 to 121 is not a mandatory precursor to a decision by the Tribunal to affirm a cancellation under s.116 and the Tribunal need only fulfil the procedural requirements specific to itself ( see Zubair v MIMIA (2004)139 FCR 344)

12. The primary applicant did not respond to the notice and his visa was cancelled by notice sent by the same method to the same addresses on 21 March 2019. The primary applicant eventually became aware of the notifications by checking an email account to which it is acknowledged, the notifications were sent.

13. The primary applicant was aware that the purpose for the visa no longer existed almost immediately from the time the work was to commence and made a decision to pursue other options. He also withheld the truth of his circumstances from the Department intentionally. There is no evidence before the Tribunal that the primary applicant sought an alternative sponsor or to apply for another visa.

14. Whilst the Tribunal accepts that the primary applicant may have been misled by the sponsor as to the true nature of the position it nominated him for, the circumstances overall, including the primary applicant’s decision to not inform the Department or apply for another visa, weigh in favour of cancellation. The Tribunal finds that the de-registration of the business was not the cause of the failure to commence work with the sponsor. The reason provided by the sponsor according to the primary applicant was that the site of the position was under renovation and no other work became available to the primary applicant from the sponsor. Consequently the Tribunal finds that the circumstances in which the ground for cancellation arose, alleged by the primary applicant to be the de-registration of the business, was not beyond the primary applicant’s control as it was not the basis for the cancellation.

15. The evidence favours the exercise of the discretion to cancel the visa.

    Degree of Hardship

16. The Tribunal refers to the agent’s second submissions in relation to the anticipated hardship that the applicants would face if the visas were cancelled. In particular the agent refers to the primary applicant’s father being a victim of a shooting and robbery in Bangladesh which has prevented his return to work. It was submitted that the primary applicant is consequently, and for other family reasons, supporting his family overseas. However, the financial statements from the applicants provide no evidence of monetary transfers to Bangladesh or any evidence of financial support for the family in Bangladesh. The evidence of the sale of property by the primary applicant’s family and the ailing health of family members does not of itself indicate a financial burden has been placed on the applicants. The applicants have incurred some debt. The primary applicant has stated that he did so as he was relying on the employment with the sponsor. As previously found by the Tribunal, this claim is inconsistent with the primary applicant’s circumstances. The primary applicant incurred the debt after he was on notice that the sponsor was not providing him with employment. Whilst the Tribunal acknowledges that the applicants may experience some financial hardship if the delegate’s decision was to be affirmed, the Tribunal places minimal weight on the financial hardship anticipated if the visas were cancelled when considering all the circumstances before the Tribunal.

17. The agent further submitted that the applicants would suffer psychologically if the visas were cancelled. The Tribunal notes that the primary applicant gave evidence that he could not afford the services of a mental health professional. However, the Tribunal is not in receipt of any evidence supporting an attempt to seek assistance or a diagnosis. The agent’s submission anticipates such a circumstance only. Whilst the Tribunal acknowledges that the primary applicant wishes to reside in Australia and an affirmation of the delegate’s decision would not be the desired outcome for him, the Tribunal does not have evidence to support a conclusion that such an outcome would lead to an adverse psychological outcome for him.

18. The Tribunal has received the letter of the psychologist from RMIT referring to the condition of the secondary applicant. The Tribunal notes that there is no evidence of treatment since 2013 and the consultation was sought after the hearing before the Tribunal. This is the only evidence before the Tribunal and of itself is insufficient to persuade the Tribunal not to exercise the discretion to cancel the visa. The Tribunal notes that the secondary applicant wishes to finalise her studies which will conclude later this month. The Tribunal can find no reason why these studies will not be completed given the time anticipated for completion. The agent stated that the secondary applicant may suffer psychologically if her career ambitions were not met. The Tribunal heard no evidence as to these ambitions. The Tribunal can only speculate that she wishes to find work in the field of education.

19. The Tribunal therefore places minimal weight against cancellation on the claim of hardship to be incurred if the visas were cancelled.

    Past and present behaviour to the Department

20. It has been confirmed by the primary applicant that the basis for the visa, being the sponsorship as chef for Grand Total Services Pty Ltd did not eventuate and that he avoided communicating this to the Department in fear that he could not stay in Australia. He further misled the Department when advising the Department that he was working when applying for his wife’s secondary visa. The primary applicant therefore failed to communicate and cooperate with the Department willingly and misled the Department as to the true state of affairs. The Tribunal has considered the primary applicant’s conduct in choosing to avoid frankness with the Department historically and finds that the evidence before it favours the exercise of the discretion to cancel the visa. The primary applicant arguably and intentionally misled the Department when the secondary visa applicant made application for a secondary visa wherein the manager of the alleged sponsor signed the document indicating that the employment was genuine.

    Other cancellations

21. Pursuant to s.140 of the Act if the primary applicant had his visa cancelled it follows that his wife’s visa would also be cancelled, she being a secondary applicant. Given the Tribunal’s findings as to the conduct of the primary applicant in relation to his less than truthful communications with the Department when applying for the secondary visa, the Tribunal has insufficient evidence before it to dissuade it from finding that the expected consequence of the cancellation of the secondary visa, is a reason not to exercise its discretion to cancel the visa.

22. Pursuant to s.48 of the Act cancellation may leave the applicants with limited options to apply for other visas in Australia. However, both applicants are citizens of Bangladesh and there are no apparent obstacles to their return to Bangladesh, despite a desire not to do so.

    International obligations

23. There is no evidence before the Tribunal to suggest and the applicants do not claim that cancellation would result in Australia breaching its international obligations. There is no evidence of an entitlement to a protection visa. The applicants may be subject to detention under section 189 and removal under section 198 of the Act. However, they could temporarily retain their bridging visa in order to remain in the community lawfully to finalise their affairs prior to departure.

24. The Tribunal therefore finds that the evidence favours the exercise of the discretion to cancel the visa.

    Compliance with visa conditions

25. There is no evidence before the Tribunal that the primary applicant has not cooperated with the Department in relation to his current bridging visa. However, the agent confirmed in the submission dated 13 August 201, that the primary applicant had breached the subclass 457 visa. The evidence before the Tribunal is sufficient to favour the exercise of the discretion to cancel the visa.

    Conclusion

26. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

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

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

    Danielle Galvin
    Member