1604595 (Migration)

[2016] AATA 4670

1604595 (Migration) [2016] AATA 4670 (22 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sukhpartap Singh
Ms Rajwinder Kaur

CASE NUMBER:  1604595

DIBP REFERENCE(S):  BCC2015/3723487

MEMBER:Alison Mercer

DATE:22 November 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not 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 22 November 2016 at 4:50pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 March 2016 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had breached condition 8107 of his subclass 457 visa by ceasing work with his original sponsoring employer for more than 90 consecutive days. The delegate noted that there was a discretion to cancel the visa under these circumstances, but concluded that the factors in favour of cancellation outweighed those against.

3. The Tribunal received a review application from the applicants on 4 April 2016.  It was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Ms Carina Ford, as their representative and authorised recipient for correspondence for the purposes of the review.

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

5. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The 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.

6. On 30 August 2016, the Tribunal wrote to the applicants via their agent to invite them to a hearing on 21 October 2016.  They were requested to provide any written submissions and/or documents to the Tribunal by 13 October 2016.

7. On 12 and 13 October 2016, the Tribunal received written submissions with supporting documents from the applicants’ agent. 

8. The applicants appeared before the Tribunal on 21 October 2016 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from Mr Ty Simons, current employer of the applicant, and oral submissions from the applicants’ agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

    Departmental history

11. The Department’s records indicate that the applicant was originally granted a subclass 457 visa on 31 January 2014, valid until 31 January 2017, based on his nomination as a Cook by Sawarn Kaur Pty Ltd, an approved standard business sponsor.

12. On 22 July 2015, Sawarn Kaur Pty Ltd advised the Department that the applicant had ceased employment there.  As a result, the Department sent a Notice of Intention to Consider Cancellation (NOICC) to the applicants on 15 January 2016, to which the applicant responded on 1 February 2016, noting that he was now the subject of a pending nomination by a new employer, Makroli Pty Ltd.

13. The Department made a decision to cancel the applicant’s visa on 31 March 2016.

    Tribunal written submissions

14. In the submission dated 12 October 2016, the applicants’ agent argued that:

    ·the circumstances that led to the cancellation no longer existed and there were significant and compelling reasons mitigating the breach;

    ·as the applicant was now working for his most recently approved sponsor, the Tribunal was asked to reinstate his subclass 457 visa;

    ·since lodgment of the review application, the applicant had commenced employment as a Cook with T & R Driftwood Pty Ltd ATF Simons Family Trust (trading as Driftwood Café).  This employer was already an approved Standard Business Sponsor and its nomination in respect of the applicant was approved by the Department on 31 August 2016;

    ·the new employer was based in regional Victoria and had difficulties with recruiting suitably skilled employees and thus was very keen to employ the applicant as a Cook.  The applicant had been working for this employer since 12 September 2016 after he was notified that he had been granted work rights on his bridging visa E.  Prior to that, the applicant had signed a contract of employment and been in discussions with the employer, and he and his wife had relocated to the employer’s location in regional Victoria;

    ·it was acknowledged that the applicant’s original employer terminated his employment in July 2015, but it was asserted that this arose in the context of difficulties between them due to late salary payments by the employer and its failure to pay the applicant’s superannuation.  There were other allegations of exploitative  behaviour by the original employer It was further asserted that the applicant sought to rectify his status by finding a new nominator once it became clear to him that matters could not be resolved with the original employer;

    ·while the applicant was unable to secure a new employer and nomination within 90 days, he found one by November 2015. However, there were delays in lodging the relevant paperwork with the Department due to the holiday period.  The nomination was therefore still pending when the applicant’s visa was cancelled.  It was subsequently approved in April 2016 but the applicant ultimately decided not to proceed with this employment as he had reservations about that employer.  In any case, he did not have work rights so could not have commenced employment immediately;

    ·in the same period, he found new employment with Driftwood Café, whom he trusted, and a nomination by this employer was lodged in July 2016 and approved on 31 August 2016 and the applicant continued to work with this employer;

    ·it was not disputed that the grounds for cancellation under s.116(1)(b) existed due to his breach of condition 8107, in that he did cease employment with his original sponsoring employer for more than 90 days. However, he took successful steps to comply and secure new employment and nomination. Moreover, to an extent, the previous breach was beyond the applicant’s control as it essentially arose due to that employer’s non-compliance and exploitation;

    ·the reasons in favour of not cancelling the applicant’s visa outweighed those in favour of cancellation;

    ·the applicant and his wife would suffer hardship if the cancellation was affirmed, including severe financial hardship and physical risk as the applicant’s wife was expecting their first child in November 2016;

    ·the applicant had cooperated with the Department in responding to the NOICC and in finding new employment and a nomination, which was in line with the purpose for which he was granted a subclass 457 visa;

    ·the reason and extent of the breach should militate in the applicant’s favour as it was asserted that the applicant’s original employer had breached its sponsorship obligations, the Superannuation Act 2005, the National Employment Standards, the Fair Work Act 20098 as well as the individual employment agreement between the employer and the applicant, and that the applicant, in pressing these matter with the employer, was terminated in July 2015;

    ·it should not be accepted that the purpose of the subclass 457 visa scheme was to force employees to continue in exploitative workplaces simply to avoid breaching condition 8107;

    ·the applicant had consistently demonstrated that he was genuine and had found 2 further employers to nominate him after his original employment was terminated.  He had good reasons for not proceeding with the first employer but was now working for the second.  There had been some delays but these were not of the applicant’s making;

    ·the applicant had resided in Australia for 8 years and he and his wife were expecting their first child in November 2016.  They had already suffered financial hardship as a result of the cancellation and the applicant’s loss of work rights between March and September 2016.  If they were required to return to India, there were doubts about how soon the applicant would be able to find work, and what kind of work he would be able to find;

    ·affirming the cancellation would cause hardship not just to the applicant and his wife but to the applicant’s new employer.  It was submitted that Driftwood Café had advertised for a Cook or Chef in February 2016 and July 2016 without success as there were insufficient local candidates with the required skills.  To deprive them of the applicant now would adversely affect the business, in that it would be forced again to try to find a suitable candidate in an area in which there labour market shortages;

    ·the applicant’s case involved significant extenuating circumstances, most notably the unethical behaviour of his original employer towards him;

    ·the applicant’s wife was 8 months pregnant and cancellation of the applicant’s visa would result in the consequential cancellation of her visa, which would cause her stress at a very delicate time. Moreover, it was submitted that it would be ill-advised (if even possible) for her to depart Australia at this stage of her pregnancy, particularly since all arrangements had been made for her to give birth in Australia; and

    ·therefore, in all the circumstances of the case, the Tribunal was requested to exercise its discretion not to cancel the applicant’s visa.

15. The supporting documents provided included the following:

    ·statutory declaration dated 12 October 2016 by the applicant, in which he confirms that he has obtained employment with Driftwood Café as a Cook and that he and his wife have relocated to regional Victoria for this.  He also elaborates on the circumstances of the termination of his employment with his original sponsoring employer, Swaran Kaur Pty Ltd (trading as the Pumpkin Café and later as De Black Crow).  The applicant alleges that the director, Rajesh Ranjan, did not pay him between November 2014 and February 2015, and again for another period about 3 months after this.  It was during this period that the relationship between the applicant and Mr Ranjan deteriorated as the applicant kept asking about pay.  While he was on leave due to family problems caused by the stress of this situation, his employment was terminated.  The applicant states that he was treated very unfairly and is still owed 8 weeks’ pay.  As a result of the stress, he struggled to find another employer within 90 days of ceasing to work for Mr Ranjan, but in November 2015, he found a new employer, Makroli Pty Ltd, who was willing to sponsor and nominate him as a Cook in regional NSW.  This was being arranged when he received the NOICC from the Department but ultimately fell through before the nomination was approved.  The applicant states that he found employment with Driftwood Café around the time that his visa was cancelled.  The applicant stated that he believed his visa should not be cancelled as he had secured employment in his field, and he and his wife had been in Australia for a number of years and were expecting their first child in November 2016.  It would be difficult for them to return to India;

    ·employment agreement between T & R Driftwood Pty Ltd (trading as the Driftwood Café) and the applicant, dated 27 May 2016, indicating that he has been employed as a Cook at $53,900 per year plus superannuation;

    ·payslips issued to the applicant by the Driftwood Café for September to October 2016;

    ·Department approval of Driftwood Café’s nomination of the applicant for the position of Cook, dated 31 August 2016;

    ·labour market testing report provided to the Department by the Driftwood Café;

    ·email correspondence between the applicant and Mr Rajesh Ranjan, July 2015;

    ·the applicant’s bank account statements for the period 10 September 2014 to 9 March 2015;

    ·Department notification of approval by Makroli Pty Ltd of the applicant for the position of Cook, dated 19 April 2016; acknowledgment of nomination application receipt dated 28 January 2016;

    ·letter of offer of employment from Makroli Pty Ltd to the applicant, dated 27 January 2016; 

    ·doctor’s certificates (dated 1 April 2016 and 7 September 2016) confirming that the applicant’s wife is pregnant and her expected due date is 21 November 2016; and

    ·various medical invoices relating to treatment of the applicant’s wife, various dates.

    Evidence at Tribunal hearing

16. At the hearing on 21 October 2016, the applicant told the Tribunal that he came to Australia and undertook study in Hospitality.  When he completed his studies, he applied for a subclass 457 visa sponsored by Sawarn Kaur Pty Ltd, for whom he had already been working part time within the terms of his student visa (20 hours per week).  He began full time employment with this employer once he was granted the subclass 457 visa in January 2014. 

17. The applicant said that he started having problems with his sponsoring employer near the end of 2014.  The owner, Mr Ranjan, had closed the Pumpkin Café and started a new business, De Black Crow.  He told the applicant that the transition had meant that he had invested a lot of money in the new business and it was running at a loss at that time.  The applicant said that Mr Ranjan told him that once the new business was up and running, he would pay the applicant but that for the meantime, he could not pay the applicant his wages. The applicant said that he was not paid wages between November 2014 and February 2015.  His wages recommenced in February 2015 but they stopped again in June or July 2015.  At this time, the applicant said that he also discovered that his employer had not been making the required superannuation payments for him.  The applicant said that when he brought these matters up with his employer, the employer said that he would pay the applicant his entitlements, but the applicant then heard from a third party that the business was up for sale.  The applicant said that he secured verbal agreement from his employer to take holidays and did so, but them he received an email from his employer telling him to return to work within 48 hours or his employment would be terminated.  As he could not comply, his employment was terminated.  The applicant understood that Mr Ranjan then told the Department that the applicant’s employment had been terminated and said that he did not dispute that his end date working for Sawarn Kaur Pty Ltd was 22 July 2015.  In response to the Tribunal’s query, the applicant said that he was still owed 8 weeks of wages and his superannuation entitlements.

18. The applicant told the Tribunal that after his employment was terminated, he tried to find alternative employment.  He tried a lot of places in Melbourne but was unsuccessful. He then went to Bathurst in regional New South Wales and found an employer there, Makroli Pty Ltd, who agreed to nominate him. This was in process when his visa was cancelled, and the nomination was in fact approved after the cancellation. However, he was told by an acquaintance that this employer might cause him problems in future, and said that he was wary about such matters given his previous experience with Mr Ranjan.  Specifically, he was told that the employer’s paperwork was not up to scratch and that a previous employee had been badly treated. He felt that he could not trust Makroli Pty Ltd and decided not to proceed with employment there. The applicant said that also, by then, he and his wife had discovered that she was pregnant, and they were reluctant to leave Melbourne.  However, the applicant decided to look for employment in regional Victoria.  His cousin found the position with Driftwood Café on the Gumtree website.  The applicant applied and was interviewed.  This employer was happy with his Certificate III and IV in Commercial Cookery and his work experience as a Cook/Chef and therefore offered him a job as a Chef.  It lodged a nomination for him with the Department and this was approved on 31 August 2016.  He commenced employment there in the first or second week of September 2016 and has been working there since then.

19. In relation to whether he and his wife had a compelling need to remain in Australia, the applicant said his wife was due to give birth to their first child shortly and he had a secure job in the field in which he trained, and in which he wanted to pursue his career.  In relation to his family, the applicant confirmed that he has his cousin Atinderpal Singh in Australia, and a few more distant relatives.  His parents remain in India in the Punjab.  His father is a retired farmer and his mother is a home-maker.  He has 1 sister who is married and lives in a different part of India to his parents. The applicant told the Tribunal that it would be very difficult for him and his wife to now return to India, as they are settled here and want their child to have the best future.  In response to the Tribunal’s query, the applicant acknowledged that he understood that the subclass 457 visa was not a permanent visa, and even if reinstated, would only be valid until the end of January 2017.  The applicant’s agent submitted that nevertheless, there is a clear pathway to permanent residence from a subclass 457 visa via the Transitional Residence Stream of the permanent residence employer nomination scheme visa category.

20. The applicant said that another compelling reason for him to remain in Australia was that it was coming into the busiest season for the Driftwood Café and if he had to leave, it would be disruptive to his current employer.

21. The Tribunal then took evidence by telephone from Mr Ty Simons, owner and manager of the Driftwood Café in Ocean Grove, regional Victoria.  Mr Simons said that he first met the applicant in April 2016, after he responded to an advertisement on Gumtree.  Mr Simons had previously worked with the applicant’s cousin, Mr Atinderpal Singh.  Mr Simons said that he was recruiting because they had just extended the business and needed to fill new positions.  He stated that it was tough to find experienced and committed Chefs, particularly in regional Victoria.  The business currently employed a Nepali Chef and an Indian Chef whom it had sponsored, so they were familiar with the process and willing to do so for the applicant.  Mr Simons said that for the business, sponsoring an employee for a subclass 457 visa meant a commitment by that person to a definite period of time. 

22. In response to the Tribunal’s query, Mr Simons said that Driftwood Café was very busy.  They had 25 full and part-time staff, and the summer was a crazy time for the business.  They had recruited the applicant earlier in 2016 with the aim that he would be on deck for summer.  It would be a disaster if they had to replace him and train someone up now, as things basically got really busy from Melbourne Cup day onwards.  Mr Simons said that they were happy with the applicant as he had worked out really well and was here to work.  It was of paramount importance to his business to retain committed, reliable full-time staff.

    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 attached to the applicant’s visa. This condition requires as follows [Tribunal emphasis added]:

   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.

   (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.

   …

2. It is not disputed by the applicant that he was originally sponsored for his subclass 457 visa by Sawarn Kaur Pty Ltd, and that he ceased employment with this employer on 22 July 2015, as advised to the Department by that employer.  Therefore, at the time that the Department sent a NOICC to the applicant on 15 January 2016, the period in which he had ceased employment with his original employer exceeded 90 consecutive days, and he was not at that time the subject of an approved nomination by a new standard business sponsor.

3. Accordingly, 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

4. 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’.

   Purpose of the visa holder’s travel to and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia

5. As discussed with, and acknowledged by, the applicant at hearing, the subclass 457 ((Temporary Work) Skilled) visa is a temporary visa, the purpose of which is to work for a standard business sponsor in a position approved through the nomination process. There is no other permitted purpose for holding a 457 visa.

6. The Tribunal finds that the applicant's original approved employment ceased in July 2015, and that from September 2016, he has been employed in a similar role in a different business (Chef for T & R Driftwood Pty Ltd ATF Simons Family Trust, trading as the Driftwood Café in regional Victoria).  In his new role, he is the subject of an approved nomination by his new employer.  As noted above, the applicant’s new employer is an approved standard business sponsor. The Tribunal accepts that the applicant is therefore still fulfilling the purpose of the subclass 457 visa program.  The Tribunal gives this factor significant weight in the circumstances of this case.

7. Moreover, the applicant has argued that he has compelling reasons to remain in Australia as his new employer the Driftwood Café is about to enter its busiest season of the year and it would be disruptive to the business if he were not able to continue in his current role.  This contention was supported by the applicant’s employer, Mr Ty Simons, whom the Tribunal found to be a sincere and credible witness.  The Tribunal accepts that, while the applicant is not irreplaceable, the business would be disrupted if the applicant were now to cease employment there given the summer season has already started, and taking into account Mr Simons’ evidence that recruitment of suitably skilled and committed Chefs is difficult in regional Australia.  The Tribunal gives this evidence significant weight.

8. The applicant has also argued that he and his wife have been here for some years and are imminently expecting their first child, and that it would be detrimental to his wife and her pregnancy if she were required to depart Australia now.  He has also argued that he and his family would struggle to re-establish themselves in India.

9. The Tribunal accepts that the applicants wish to remain in Australia.

10. As discussed with the applicant at the hearing, the subclass 457 visa is a temporary visa the purpose of which is to enable Australian employers to fill skills shortages, and it is not a guaranteed pathway to permanent residence (or even to long term temporary residence).  The Tribunal does not consider the wish of the applicants to remain here for a longer time, or indeed permanently, to be a compelling reason in and of itself not to cancel the applicant’s subclass 457 visa, given that it is a temporary visa at best.  However, when considered cumulatively with the fact that he is sponsored and nominated for employment by a new Australian employer and that his wife is about to have their first child, the Tribunal gives this consideration some weight.

    Extent of the applicant’s compliance with his visa conditions

11. There is no evidence before the Tribunal to suggest that the applicant has not complied with the conditions of his previous student visas, bridging visas or of any other conditions relating to his subclass 457 visa apart from condition 8107(1)(b).  In relation to condition 8107(1)(b), the Tribunal is satisfied that the applicant was in breach of this condition, and that he was not the subject of an approved nomination by a standard business sponsor for approximately 1 year prior to obtaining his current employment and nomination, but gives weight to the fact that this occurred in the context of exploitation by his original sponsoring employer, followed by concerted efforts on the part of the applicant to secure a new employer and nomination.

    The degree of hardship that may be caused (financial, psychological, emotional or other hardship)

12. As noted above, the applicant indicated that he and his wife would suffer financial and emotional hardship if they had to depart Australia and return to India.

13. The Tribunal acknowledges that they would suffer some financial and emotional hardship if they had to depart Australia, given the length of time that they have lived here, and the relatively better economic and educational opportunities in Australia, but it does not consider that the degree of financial and emotional hardship that they would face would be insurmountable.  This is particularly so when there is no hard evidence to suggest that the applicant would be unable to find employment and/or would not have some degree of family support in India to reintegrate.

14. However, the Tribunal is satisfied that as a matter of practicality, it would not be immediately possible for the applicant’s wife to depart Australia as she is about to give birth and is unlikely medically to be permitted to fly for some time after the birth.

    Circumstances in which the cancellation arose

15. The Tribunal accepts the oral and documentary evidence provided by the applicant and his agent, which is consistent with the Department correspondence also provided, that the applicant’s original employer terminated his employment in July 2015 and that he then sought nomination by Makroli Pty Ltd in March 2016, which he subsequently did not pursue, and that he is now employed by the Driftwood Café, which is an approved standard business sponsor whose nomination of the applicant was approved in August 2016.

16. The Tribunal found the applicant to be a credible witness at hearing, and therefore accepts that his former employer, Sawarn Kaur Pty Ltd, did not pay his superannuation entitlements and did not pay his wages for 3 months before terminating his employment in July 2015.  The Tribunal gives weight to this as a factor in favour of not cancelling his visa, as these were factors not of his making.

17. The Tribunal considers this fact, and the fact that the applicant has now secured a new employer and nomination, to be strong factors in favour of not cancelling his visa.

    Past and present conduct by the applicant towards the Department

18. The Tribunal accepts that the applicant has been cooperative with the Department. 

    If breach relates to breach of r.2.43(1)(la)…

19. This factor is not applicable in the present case.

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

20. While the Tribunal accepts that cancellation of a visa would normally result in a person becoming unlawful and subject to detention, the Tribunal is satisfied that the applicants have applied for, and been granted, bridging visas which are valid until the outcome of the Tribunal review.  Accordingly, it does not accept that indefinite detention is a possible consequence of cancellation, as a bridging visa would continue to be available to the applicants if they needed this to make arrangements to depart, or to lodge a judicial review application, in the event that the Tribunal review is unsuccessful.

21. The Tribunal accepts that, if the visa cancellation is affirmed, the applicants will be subject to s.48 of the Act, which significantly limits what future onshore applications they may be able to make (though it does not affect their ability to apply for a visa offshore in future).

    Whether there would be consequential cancellations pursuant to s.140 of the Act

22. The Tribunal accepts that the applicant’s wife would be subject to consequential cancellation of her subclass 457 visas pursuant to s.140 of the Act if the decision to cancel the applicant’s subclass 457 visa is affirmed.

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

23. The applicant did not raise any international obligations that he believed would be breached as the result of the cancellation and there is nothing before the Tribunal to indicate that cancellation would result in Australia breaching any of its international obligations.

    Any other relevant matter

24. The Tribunal considers that a stay in Australia on a temporary visa such as the 457 visa is, as the length of visa grant suggests, a temporary stay, which by its nature will come to an end. The natural consequence of a temporary stay is a departure from Australia, which is something which should be anticipated by the holder of a temporary visa, and by other family members of such a person.  In this case, the visa’s expiry date, if not subject to cancellation, is 31 January 2017.

25. However, this is a case in which the applicant has successfully found an alternative lawful basis of further stay in Australia.  He has obtained continuing employment and is now subject to a new approved nomination by an approved sponsor.  Accordingly, reinstating the applicant’s subclass 457 visa would allow the family to remain here until early 2017 in accordance with the purpose of the subclass 457 visa program. 

26. Considering the circumstances as a whole, the Tribunal concludes that the factors in favour of not cancelling the visa outweigh those in favour of cancellation, and it concludes that the visa should not be cancelled.

    DECISION

27. The Tribunal sets aside the decision under review and substitutes a decision not 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.

    Alison Mercer
    Member