1603301 (Migration)

[2016] AATA 4030

1603301 (Migration) [2016] AATA 4030 (27 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr HUNG-CHUN TSAI

CASE NUMBER:  1603301

DIBP REFERENCE(S):  BCC2016/475286

MEMBER:Dione Dimitriadis

DATE:27 June 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

Statement made on 27 June 2016 at 4:08pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 March 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 457 (Business (Long Stay)) 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 had not complied with condition 8107. The delegate was satisfied that the grounds for cancelling the visa outweighed the grounds for not cancelling 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. The applicant appeared before the Tribunal on 23 June 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Chin-Tsan Chen. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. 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

6. The applicant was granted a Subclass 457 visa on 16 October 2012.

7. Information in the delegate’s decision record is that the applicant ceased employment with the sponsoring employer (the sponsor), Daiso Japan (Australia) Pty Ltd, on 31 July 2015. The sponsor advised the Department of Immigration (the Department), in writing, that the applicant ceased employment with the sponsor effective on 31 July 2015. The delegate stated that the standard business sponsor who nominated the applicant in the most recently approved nomination for the visa is Daiso Japan (Australia) Pty Ltd whose nomination was approved on 16 October 2012.

8. Information in the delegate’s decision record is that the applicant was granted a visa to work in a skilled occupation for the sponsor, but he ceased working for the sponsor on 31 July 2015.

9. On 26 February 2016 the Department issued a Notice of Intention to Consider Cancellation (NOICC) under s.116 of the Migration Act 1958 to the applicant. The NOICC stated that the Department received written notification from the sponsor that the applicant ceased employment with the sponsor on 31 July 2015. The NOICC informed the applicant that this indicates that he is in breach of paragraph 8107(3)(b) of condition 8107 which was attached to his visa, because it appears that he has ceased employment with the sponsor for a period exceeding 90 consecutive days. The NOICC invited the applicant to comment on the ground(s) for cancellation identified in the letter and to give reasons why his visa should not be cancelled.

10. On 3 March 2016 the Department received a response from the applicant’s former representative who stated that the applicant believes that the ground for cancellation does not exist and his visa should not be cancelled. The applicant left the sponsor on 31 July 2015. He found another sponsor, E.Tel Communications Pty Ltd, and his 457 nomination was lodged on 19 October 2015. The nomination was refused on 18 February 2016 and a new nomination was lodged on 19 February 2016. The representative referred to the Department’s Policy (PAM 3) including that before a visa holder can change employer or occupation, a new nomination in relation to the visa holder must be lodged and approved, unless they are in an occupation specified in an instrument made under r.2.72(1)(d)(ii) or (iii). The representative stated that when the applicant ceased employment with the sponsor on 31 July 2015 he had 90 days to find another sponsor. The applicant believes that the ground for cancellation does not exist. The representative stated that the Department was too slow in processing the nomination application so the 90 days was exceeded.

11. On 10 March 2016 the delegate made a decision to cancel the applicant’s visa. The delegate found that the applicant had not complied with condition 8107 and was satisfied that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa.

12. At the time of lodging the application for review on 12 March 2016 the applicant provided a copy of the delegate’s decision record.

13. On 22 April 2016 the Tribunal wrote to the applicant and invited him to a hearing on 23 June 2016. The Tribunal requested the applicant to provide to the Tribunal any additional documents or information, on which he wished to rely during the hearing, by 16 June 2016. The applicant did not provided any evidence or other information to the Tribunal before the hearing.

14. The applicant provided to the Tribunal at the hearing on 23 June 2016 a letter from himself and a letter from Chin-Tsen Chen.

15. In the letter dated 23 June 2016, the applicant stated that he came to Australia on 5 September 2016 on a working visa under the sponsorship of the Daiso Japan Australia. In 2014 the company was sold and renamed Merico Plus in September 2014 and it underwent a massive change in management and laid off employees. The applicant stated that he became a “victim of the layoffs and left the company in July 2015.” The applicant claimed that, if this management situation did not occur, considering his period of stay in Australia on a working visa, he was eligible for a permanent visa. Eighty one days after his dismissal from the sponsor, he found a new employer to complete the application process. The applicant stated that, while he waited, he studied English from 11 January 2016 for ten weeks to improve his English language ability. On 18 February 2016, the application was refused and E.Tel submitted another application and paid the fee on 19 February 2016. The applicant stated that his visa was cancelled on 10 March 2016. The applicant was so upset that it turned his life upside down and was beyond his expectations and control. The applicant stated that he has not received a response about the second application. He believes that he has not been reasonably treated in the case and his visa should not be cancelled as E.Tel applied since 19 October 2015 “for his working visa”.

16. In a letter dated 23 June 2016, Mr Chin-Tsen Chen, the managing director of E.Tel Communications Pty Ltd (E.Tel), stated that E.Tel is a communications service provider which was established in 1999. Mr Chen stated that, in recent times, the telecommunications industry has been changing rapidly. This challenge can only be overcome with a lot of investment in IT and software development. However, their IT capabilities are always falling short of the requirement to remain competitive in the industry and struggling to keep up with ever increasing customer expectations. They require manpower skilled in IT to support their IT department and after a long search they found the applicant to be the perfect fit for their organisation. They had to sponsor him. The company is qualified to sponsor staff from overseas. However, their application to sponsor the applicant was refused by the Department because they deemed that E.Tel was not in need of an IT support person. They then compiled a more comprehensive application and their agent, who did not realise that the applicant’s visa “was expiring” (sic), lodged a new application rather than an appeal. Mr Chen stated that “this new application should be treated like an appeal on the initial rejection and not allow Mr Tsai’s current visa to expire due to human error on the part of the agent.”  

17. At the hearing the Tribunal informed the applicant that the delegate decided to cancel the visa because he was satisfied that the applicant had not complied with a condition of his visa and the reasons for cancelling the visa outweigh the reasons not to cancel the visa. The Tribunal informed the applicant that the delegate found that he had not complied with condition 8107. The Tribunal informed the applicant that condition 8107 has a number of requirements including that, if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days. The Tribunal informed the applicant that condition 8107 also requires that if the visa is, or the last substantive visa held by the applicant was, a Subclass 457 visa, the holder must work only in the occupation listed in the most recently approved nomination for the holder, and the holder must work only in a position in the business of the sponsor or an associated entity of the sponsor. The Tribunal informed the applicant that it would look at whether there are grounds for cancelling the visa, and if so, whether the visa should be cancelled.

18. The applicant stated that he has a little English. He has hearing problems. He was granted a Subclass 457 visa in 2012. He did not have to do an English test for the Subclass 457 visa in 2012.

19. The applicant stated that he is not working and he has not worked since 31 July 2015. He has not worked for E.Tel at all. He has been waiting and during that time he has enriched himself. From 11 January 2016, he studied English. The applicant stated that he could not work because he was on a bridging visa. E.Tel’s agent told him that he could not work.

20. The applicant stated that he was nominated for the position of Project Administrator by the sponsor, Daiso Japan Australia. E.Tel has nominated him for a different occupation, IT Support. The applicant stated that the tasks are similar.

21. The applicant confirmed that E.Tel applied for approval of the nomination and this was refused in February 2016 and E.Tel applied again for approval of a nomination on 19 February 2016. The applicant stated that he is still waiting for the decision on that nomination application. The Tribunal informed the applicant that the Department’s records show that this nomination application was refused on 7 June 2016 and E.Tel has applied for a third time for the nomination to be approved. 

22. The Tribunal brought to the applicant's attention that he has not worked since 31 July 2015 which is more than 90 consecutive days and it appears that he has breached condition 8107. The Tribunal informed the applicant that it would consider whether the visa should be cancelled.

23. The applicant stated that he came to Australia for work and for migration. The sponsor came to the applicant and told him that it would help him apply for the visa and help him migrate. In August 2013 the sponsor’s business was sold back to Daico company. In September 2013 the name of the company changed to Merico Plus. Because of that decision and because the turnover was not as good as expected, the financial situation got worse. The sponsor had originally said that if the applicant worked for two years they would help him apply for permanent residence and then they said to wait for one more year to apply for permanent residence. Employees then had to leave and the applicant became one of the victims on 31 July 2015.  

24. The applicant found a new employer after 81 days. The Tribunal brought to the applicant's attention that he has not worked for almost a year. The applicant stated that the law does not allow him to work. The Tribunal asked the applicant why he did not go to the Department and talk about his circumstances. The applicant stated that he was not clear about immigration information so he had to believe the information from the agent. He was waiting for a decision.

25. The applicant came to Australia on a Subclass 457 visa. He was 33 years old. The applicant quit his job as a software engineer to come to Australia.  He originally came to Australia in 2009 on a Working Holiday visa and then returned to Taiwan in 2011. He has lived most of his life in Taiwan. His parents live there, as do his three older siblings.

26. The hardship that will be caused to him if his visa remains cancelled is that he has to move himself and his things back to Taiwan. He wants to stay in Australia and continue studying. The Tribunal brought to the applicant's attention that he has only ever held temporary visas in Australia.

27. The Tribunal proceeded under s.359AA of the Act and gave the applicant particulars of information that the Tribunal considers, would be the reason, or a part of the reason, for affirming the decision under review. The information was that the nomination application lodged in February 2016 had been refused by the Department on 7 June 2016. The Tribunal informed the applicant of the relevance of the information and the consequences of the Tribunal relying on that information. The Tribunal invited the applicant to comment on or respond to the information and informed the applicant that if he wants more time to respond or to comment on the information, to tell the Tribunal and the Tribunal will consider whether to give him more time. The applicant stated that he understood. He stated that he was surprised and only realised today that the second visa (sic) was cancelled. He was confused and could not think of anything. The applicant will be really sad. Four years ago he made a decision to migrate here. He always had the plan to stay in Australia for a long time. He was told this year that his visa was cancelled. His life was a mess. He has stayed in Australia for a long time. He thinks it unreasonable that his visa has now been cancelled. He has not even had a traffic infringement notice in Australia. He has always been a law-abiding person.

28. The applicant stated that E.Tel has never received the information that the second nomination application was refused.

29. The applicant stated that he is single and does not have a wife or children here. The Tribunal asked the applicant if he wished to say anything about the circumstances in which the ground for cancellation arose. The applicant stated that Daiso Japan almost stopped operating in Australia. After the applicant’s job finished, the government only gave him 90 days to find a new job. The time frame was too short to find a new employer. The applicant stated that he had to find an approved sponsor and get the boss to agree. The Tribunal brought to the applicant's attention that it has been almost a year since he stopped working for the sponsor and there is still no current approved nomination in relation to  the applicant.

30. The applicant stated that he has complied with all other visa conditions. He has not had dealings with the Department. His dealings with the Department were through E.Tel’s agent.  

31. Mr Chin-Tsan Chen gave evidence that he is the managing director of E.Tel Communications Pty Ltd.  Mr Chen stated that the first nomination application in relation to the applicant was refused in February 2016 and a new nomination application was lodged in February 2016. The Tribunal informed Mr Chen that the second nomination application was refused on 7 June 2016. Mr Chen stated that he did not know that. He stated that maybe he did not receive the email or maybe he did not read it. The agent did not inform him.  

32. The Tribunal informed Mr Chen that whether the nomination was not decided or whether it was refused, there is still not a current approved nomination in relation to the applicant. Mr Chen stated that, if the second nomination application has been refused, he is sorry to hear that. The company believes that the applicant is a good candidate to work for the company. When the first nomination application was refused, they thought that the supporting documents were not enough and they immediately prepared more supporting reasons as to why they needed the applicant to work for them as an IT Assistant. The company does telecommunications in the Telco industry. They provide mobile and fixed phone service to customers. They need more information systems to support the internal work and the customers. The operators are getting busier in all types of work. They need an additional IT supporter. That is why, from mid 2015, Mr Chen and the team needed someone like the applicant to do that. The company has been in Australia for 16 years. They are struggling to support customers from an IT base.

33. Mr Chen stated that there are nearly 20 full-time and part-time employees in the company. The business operations are based in Haymarket. Mr Chen requested that the applicant’s visa not be cancelled and then the agent can resubmit the application. Mr Chen stated that the applicant worked for the company for a month, six years ago. The applicant’s IT skills are very good. Mr Chen stated that if the applicant has to depart Australia, he will sponsor him from overseas.

34. The Tribunal informed the applicant and Mr Chen that if the information is wrong that the second nomination was refused, they can provide the information to the Tribunal by 24 June 2016.

35. Mr Chen stated that he was not aware that a third nomination application had been made. The Tribunal informed the applicant that a third application was made on 8 June 2016. The Tribunal informed the applicant that it would not wait for the third nomination application to be decided as the applicant had had almost 12 months to find a sponsor and for a nomination to be approved. The Tribunal allowed the applicant until 24 June 2016 to provide further evidence.

36. On 23 June 2016 the Tribunal received an email from the applicant who stated that a new nomination application was lodged on 8 June 2016. The applicant provided a number of documents including copies of the nomination application and acknowledgment from the Department of the receipt of the nomination application.  The nominated position was ICT Support Technician nec (ANZSCO 313199).

37. On 24 June 2016 the Tribunal received an email from the applicant who requested that the Tribunal wait until a decision was made on the nomination application which was currently being processed. The applicant stated that the migration agent made a great error by submitting incorrect documents and the nomination was refused as a result of that error. The same agent submitted the third nomination without the consent of the applicant’s future employer. The applicant stated that this was beyond the applicant’s control and he is disadvantaged by the “unprofessional act of the migration agent”. The applicant’s future employer has appointed a new migration agent and the applicant provided a Form 956. The applicant requested that the Tribunal wait until the new nomination is decided by the Department.

38. The Tribunal carefully considered the request to wait for the nomination decision but did not agree to this request. The applicant has not worked in Australia for the sponsor since 31 July 2015. He has not worked at all since 31 July 2015. Although the applicant found an employer that was prepared to sponsor him, there is no current approved nomination in relation to the applicant. The applicant’s proposed employer, E.Tel Communication Pty Ltd, had already lodged two nomination applications which were refused by the Department. A third nomination was then lodged on 8 June 2016. It is not known how long the third nomination application will take to be decided. The obligation on the Tribunal is to conduct a review which is fair, just, informal, economical and quick. The Tribunal considers that the applicant has had sufficient time to find an employer that is a standard business sponsor and has had a nomination of an occupation approved in relation to the applicant.

39. The Tribunal wrote to the applicant on 27 June 2016 and informed him that it had carefully considered the request for an extension of time but did not agree to it.  

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

    Does the ground for cancellation exist?

1. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 was attached to the applicant’s visa which was granted on 16 October 2012. Amendments to Condition 8107 were made on 1 July 2013 that applied to all visas in effect on that date (Migration Legislation Amendment Regulation 2013 (No.3)). In relation to the holder of a Subclass 457 visa granted on the basis of being sponsored by a standard business sponsor, condition 8107 requires that the holder must work only in a position in the business of the standard business sponsor or an associated entity of the sponsor (subject to limited exceptions): condition 8107(3)(a)(ii)(B). The holder must commence that work within 90 days after the holder’s arrival in Australia: condition 8107(3)(aa). Departmental policy states that where the holder is already in Australia, they must commence employment within 90 days of the grant of the visa. If the holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days: condition 8107(3)(b).

2. The applicant stated at the hearing that he worked for the sponsor until 31 July 2015. The delegate’s decision record indicates that the sponsor informed the Department that the applicant stopped working for the sponsor on 31 July 2015.  

3. The Tribunal accepts that the applicant worked for the sponsor until 31 July 2015 in the position of Project Administrator. Condition 8107(3)(a)(i) requires that an applicant must work only in the occupation listed in the most recently approved nomination for the holder. That occupation was a Program or Project Administrator. The position for which the applicant had been nomination by E.Tel Communications Pty Ltd is an ICT Support Technician nec.

4. The Tribunal is satisfied that the applicant ceased employment with the sponsor on 31 July 2015.  The applicant has found an employer that is willing to sponsor him. However the employer, E.Tel Communications Pty Ltd, has had its nomination application refused twice by the Department. Although a third nomination application was lodged on 8 June 2016 by the proposed employer, there is no current approved nomination in relation to the applicant by a standard business sponsor. The Tribunal is satisfied that the applicant, whose last substantive visa was a Subclass 457 visa that was granted on the basis that he met the requirements of subclause 457.223(4), ceased employment on 31 July 2015 and the period during which the applicant ceased employment exceeded 90 consecutive days.

5. The Tribunal accordingly finds that the applicant has not complied with condition 8107(3)(b) of his Subclass 457 visa.

6. 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 power to cancel the visa should be exercised.

   Consideration of discretion

7. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

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

8. The applicant was granted a Subclass 457 visa on 16 October 2012. He was sponsored by the sponsor for a Subclass 457 visa. The applicant gave evidence at the hearing that he had previously been to Australia on a Working Holiday (Subclass 417) visa.

9. The Tribunal finds that the purpose of the applicant’s travel to and stay in Australia, when he was granted the Subclass 457 visa in 2012, was to work here and eventually to apply for permanent residence. His aim was to migrate here. The purpose of the applicant’s stay in Australia at the time he applied for a Subclass 457 visa was to work as a Project Administrator for the sponsor. The Tribunal finds that the purpose of working as a Project Administrator for the sponsor no longer exists as the applicant ceased working for the sponsor on 31 July 2015.  

10. The applicant has not commenced working with E.Tel Communications Pty Ltd which has applied for approval of a nomination three times. The first nomination was refused by the Department on 18 February 2016 and the proposed employer lodged another nomination application on 19 February 2016. The second nomination application was refused by the Department on 7 June 2016 and the proposed employer lodged a third nomination application on 8 June 2016. The evidence before the Tribunal is that there is no current approved nomination of an occupation in relation to the applicant by a standard business sponsor. 

11. The applicant gave evidence that he found another employer to sponsor him but although the employer was approved as a standard business sponsor, the nomination was not approved by the Department twice. Although a third application has been lodged by the proposed employer, the Tribunal has decided not to wait for that decision. The applicant has not been employed in Australia since 31 July 2015 and he has had 11 months to find a new employer and a current approved nomination. There is no approved nomination of the occupation of ICT Support Technician nec in relation to the applicant.

12. The applicant was granted a Subclass 457 visa which is a temporary visa.  However, the situation now is that there is no approved nomination in relation to the applicant. The Subclass 457 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation. The Tribunal finds that this purpose no longer exists in relation to the applicant.

    The extent of compliance with visa conditions

13. The Tribunal is satisfied on the evidence that the applicant has complied with visa conditions other than condition 8107.

    The impact on any victims of family violence

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

    Whether there would be consequential cancellations under s.140

15. There is no evidence that there would be consequential cancellations under s.140 of the Act. The applicant stated that he is single and he does or have a wife or children in Australia.

    Degree of hardship that may be caused 

16. The applicant stated that the hardship that will be caused to him if his visa remains cancelled is that he will have to move back to Taiwan and move all his things there. He came to Australia to work and he wanted to apply for permanent residence. The applicant was sponsored to work in Australia and the sponsor told the applicant that it would support him to apply for permanent residence. However, the sponsor’s circumstances changed, the company was sold and employees’ employment was terminated, including the employment of the applicant. The applicant claimed that, if this management situation did not occur, considering his period of stay in Australia on a working visa, he was eligible for a permanent visa. The applicant also stated that he wants to stay in Australia and continue studying. 

17. Whilst the cancellation means that the applicant would have to return to Taiwan, the applicant held a temporary visa here. The Tribunal accepts that the applicant would experience some hardship if he has to return to Taiwan. However, the Tribunal is not satisfied that he would have had a real expectation that he would be able to remain in Australia on a permanent basis. The Tribunal is satisfied that the applicant will be able to work and support himself in Taiwan, where he speaks the language and has skills and experience in IT. He also has his family in Taiwan.

18. The Tribunal has also considered the hardship that would be experienced by the proposed employer if the applicant’s visa remains cancelled and he has to return to Taiwan. If the nomination is eventually approved by the Department, and the visa remains cancelled, the evidence is that E.Tel Communications Pty Ltd would sponsor the applicant from overseas. The applicant stated that he has not worked for the proposed employer. The applicant has not worked since he lost his job with the sponsor on 31 July 2016. Although E.Tel considers that the applicant is the right employee for them and Mr Chen gave evidence that the applicant’s skills are needed, the reality is that the applicant has not been working for E.Tel. The Tribunal considers that the proposed employer would suffer a small degree of hardship if the nomination is approved but the visa remains cancelled. However, the Tribunal does not consider the hardship to be significant.

    Circumstances in which ground of cancellation arose.

19. The evidence is that the applicant stopped working for the sponsor on 31 July 2016. The applicant has had an opportunity to mitigate the breach by finding employment with another sponsor. In this case, the Tribunal finds that the applicant has taken steps and has found an employer willing to sponsor him. However, whilst the proposed employer was approved as a standard business sponsor, the applicant has confirmed that the nomination was not approved. Three applications for approval of a nomination were lodged by the proposed employer, E.Tel Communications Pty Ltd, but two of the applications were refused and the third has not been decided. The evidence before the Tribunal is that there is no approved nomination in relation to the applicant by a standard business sponsor.   

20. At the time of the Tribunal’s decision, it has been approximately 11 months since the applicant was employed by the sponsor. It has been 11 months since the applicant was employed. The Tribunal considers that the applicant has had sufficient time to find a new sponsoring employer that has obtained an approved nomination. The Tribunal finds that the applicant’s failure to commence employment with a new business sponsor represents a significant breach of condition 8107.

    Past and present conduct of the visa holder towards the department

21. The Tribunal accepts that the applicant has not previously breached visa conditions. There is no evidence that the applicant has not been honest in his dealings with the Department.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

22. This matter is not relevant to the Tribunal’s consideration as the visa was not cancelled on this basis.

    Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

23. The applicant’s visa was cancelled on 10 March 2016 and he has held a Bridging E visa from 16 March 2016. The applicant does not have work rights on his Bridging E visa. He had work rights until his Subclass 457 visa was cancelled. The Tribunal does not have evidence before it that cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation.

    Whether any international obligations would be breached as a result of the cancellation

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

    Any other relevant matters

25. The applicant’s employer stated at the hearing that there would be an exclusion period because the applicant has had a visa cancelled. The Tribunal has considered this evidence but is not satisfied in this case that this is a reason not to cancel the visa for a breach of condition 8107. The Tribunal has had regard to Public Interest Criterion (PIC) 4013 which the applicant has to satisfy (cl.457.224) to be granted a Subclass 457 visa. The Tribunal considers that the applicant will not be subject to an exclusion period because he is not affected by a risk factor in PIC 4013(1A), (2), (2A) or (3). He is not affected by the risk factor under PIC 4013(2)(b) because although his visa is cancelled under s.116 because the applicant did not comply with a condition of his visa, the visa was not of a subclass specified in Part 2 of Schedule 4. The Tribunal considers that the applicant will not be prevented from applying offshore for a Subclass 457 visa and being considered for a new visa after he has departed Australia as long as he meets all the criteria for the grant of the visa.

    CONCLUSIONS

26. The Tribunal has considered and weighed all of the relevant circumstances of the applicant’s case. The Tribunal has considered the evidence that the applicant worked for the sponsor until 31 July 2015 and he found another employer that has applied three times for the nomination to be approved. The employer’s first two nomination applications were refused and a third nomination application was lodged on 8 June 2016. There is no current approved nomination in relation to the applicant. The applicant stopped working for the sponsor on 31 July 2015. The purpose of the applicant’s stay in Australia no longer exists. The applicant has not worked for a business sponsor in an approved nominated skilled position for almost one year. Even if the applicant’s Subclass 457 visa were not cancelled, the applicant would be unable to continue to meet the requirements of a Subclass 457 visa, given that he does not have an approved business nomination in relation to the applicant. It is a requirement of cl.457.223(4)(a) that there is an approved nomination of an occupation in relation to the applicant by a standard business sponsor and the nomination has not ceased.

27. The Tribunal acknowledges that the applicant has taken steps to find another employer and that he found an employer that was willing to sponsor him. However, the proposed employer has not been successful in obtaining a new approved nomination and the nomination has been refused twice. The Tribunal accepts that cancellation of the visa would cause the applicant some hardship, but the Tribunal is not satisfied that the hardship will be serious. He will return to Taiwan where he has lived most of his life and where he has family. His parents and three siblings live there. The Tribunal is satisfied that the applicant has the skills to find employment in Taiwan.   

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

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

    DECISION

30. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

    Dione Dimitriadis

    
    

    Member

    ATTACHMENT:  CONDITION 8107

    8107

    (1)      If the visa is not a visa mentioned in subclause (3) or (4), and was granted to enable the holder to be employed in Australia, the holder must not:

    (a)      cease to be employed by the employer in relation to which the visa was granted; or

    (b)      work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or

    (c)      engage in work for another person or on the holder’s own account while undertaking the employment in relation to which the visa was granted.

    (2)      If the visa is not a visa mentioned in subclause (3) or (4), and subclause (1) does not apply, the holder must not:

    (a)      cease to undertake the activity in relation to which the visa was granted; or

    (b)      engage in an activity inconsistent with the activity in relation to which the visa was granted; or

    (c)      engage in work for another person or on the holder’s own account inconsistent with the activity in relation to which the visa was granted.

    (3)      If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

    (a)      the holder:

    (i)      must work only in the occupation listed in the most recently approved nomination for the holder; and

    (ii)      unless the circumstances in subclause (3A) apply:

    (A)      must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or

    (B)      if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor or an associated entity of the sponsor; or

    (C)      if the sponsor is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor; and

    (aa)      the holder must commence that work within 90 days after the holder’s arrival in Australia; and

    (b)      if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days; and

    (c)      if the holder is required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, in the location where the holder’s position is situated—the holder must:
         (i)      hold the licence, registration or membership; and
         (ii)      comply with each condition or requirement to which the licence, registration or membership is subject.

    (3A) For subparagraph (3)(a)(ii), the circumstances are that:

    (a)      if the nomination was made before 1 July 2010 — the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(d)(ii) or (iii); or

    (aa)      if the nomination is made on or after 1 July 2010 — the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(e)(ii) or (iii); or

    (b)      the holder is continuing to work for the sponsor, or the associated entity of the sponsor, for the purpose of fulfilling a requirement under a law relating to industrial relations and relating to the giving of notice.

    (3B)      If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(8):

    (a)      the holder must work only in the occupation or position in relation to which the visa was granted; and

    (b)      if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days.

    (4)      If the visa is:

    (a)      a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or

    (b)      a Subclass 402 (Training and Research) visa; or

    (ba)      a Subclass 420 (Temporary Work (Entertainment)) visa;

    the holder must not:

    (c)      cease to engage in the most recently nominated occupation, program or activity in relation to which the holder is identified; or

    (d)      engage in work or an activity that is inconsistent with the most recently nominated occupation, program or activity in relation to which the holder is identified; or

    (e)      engage in work or an activity for an employer (within the meaning of subregulation 2.72A(8)) other than the employer identified in accordance with paragraph 2.72A(7)(a) in the most recent nomination in which the holder is identified.