Ancheta (Migration)

[2019] AATA 2734

Ancheta (Migration) [2019] AATA 2734 (3 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Noriel Ancheta

CASE NUMBER:  1729678

HOME AFFAIRS REFERENCE(S):           BCC2017/3032401

MEMBER:Alan McMurran

DATE:3 April 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 03 April 2019 at 1:43pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – unemployed for a period exceeding 90 days – termination of employment with first sponsor – redundancy – offer of employment with second company – not the subject of approved sponsorship agreement – third employer now obtained sponsorship approval – shortage of skilled labour in regional area – applicant had replaced previous incumbent – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140
Migration Regulations 1994 (Cth), condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 November 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s 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) for breach of condition 8107 attached to the visa, on the basis that the applicant ceased work with Aluglass Australia Pty Ltd (the sponsor) on 7 April 2017 when he was made redundant. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

3. The applicant is a 40 year old citizen of the Philippines. The applicant is currently in Australia on a Bridging visa WE/050, since the cancellation of his UC 457 visa. The applicant is married with three children aged 7, 8 and 14. His family have remained in the Philippines.

4. According to the Department’s records[1], the applicant first arrived in Australia on 6 June 2015 having been granted a 457 visa on 13 May 2015 to work for the sponsor. The visa is due to expire on 13 May 2019. The applicant was employed as a graphic designer (ANZSCO 232411) and was working in Darwin for the sponsor.

   [1] BCC2017/3032401

5. The applicant’s employment with the sponsor was terminated on 7 April 2017 when he was made redundant.

6. In May 2017, the applicant sought employment as a graphic designer with another employer, The Property Shop Australia Pty Ltd (Property Shop). Although offered a position, the applicant was unable to accept the role as the company was not the subject of an approved sponsorship agreement.

7. Between May and September 2017, the applicant sought other employment and moved to Gympie in Queensland, when he thought he might have a role with Property Shop. On 16 October 2017, the applicant received the Department’s Notice of Intention to consider Cancellation (NOIC), to which he responded.

8. On 20 October 2017, the applicant accepted an employment offer as a graphic designer from JW L Marketing Pty Ltd (JW L). The JWL offer to the applicant as a graphic designer required the applicant to relocate to Tamworth in regional New South Wales.

9. At the time of accepting the offer, JWL was not an approved sponsor and had not previously been involved in any migrant employer programme.  JWL sought and was granted sponsorship approval for the period 13 November 2018 to 30 November 2023 as a business sponsor. JWL has now sought to nominate the applicant, and progress of that nomination application is referred to below.

10. The nomination is pursuant to the new TSS 482 scheme in operation since March 2018, and which scheme has replaced the 457 visa programme. The applicant is no longer eligible for a further 457 visa as his cancelled visa would otherwise expire on 13 May 2019, and the applicant will need to apply for a new TSS 482 visa, subject to his employer’s nomination being approved and the cancellation being set-aside.

11. Following the cancellation of his 457 visa, the applicant was granted a Bridging Visa E on 30 November 2017, with work rights, On 1 December 2017, the applicant commenced employment as a graphic designer with JWL and has remained in that position where he works currently in Tamworth in regional NSW.

12. JWL sought to sponsor the applicant on two occasions, 17 January 2019 and 1 February 2019. Both those applications were refused by the Department, respectively on the grounds of labour market testing, and then most recently on 5 February 2019 on the grounds of genuineness of the position. JWL has sought a review of the February nomination refusal, which is yet to be finalised.

13. The applicant appeared before the Tribunal on 15 February 2019 to give evidence and present arguments. The Tribunal received oral evidence from the applicant in person and from Colin James McDonald (the witness), who is employed by JWL as its marketing director and has been personally responsible for supervising the applicant and offering him the nominated role of graphic designer with that company.

14. 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

15. 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) where a condition of the visa has not been complied with.

16. 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. Those matters of policy are a guide only for the Tribunal to consider as might be appropriate. Where a ground for cancellation exists, as those grounds do not require mandatory cancellation of the applicant’s visa under section 116 (3) of the Act, the Tribunal must proceed to consider whether, as a matter of discretion, the power to cancel the visa should be exercised.

    Does the ground for cancellation exist?

17. A visa may be cancelled under s.116 (1) (b) if the Minister is satisfied that the holder did not comply with a condition of their visa.

18. In this instance condition 8107 and in particular, paragraph 3 of that condition attached to the applicant’s visa. This condition requires that the visa holder must work only in the occupation listed in the most recently approved nomination. If the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. [2]

    [2] See 8107(3)(b) – ”if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutive days;”

19. The occupation listed was “graphic designer”. The most recently approved nomination for the applicant for that position was in favour of Aluglass Australia Pty Ltd (Aluglass). The visa holder’s employment ceased with that employer on 7 April 2017, when the visa holder was made redundant.

20. The applicant remained unemployed for a period exceeding 90 days, as he was unable to obtain an approved sponsor to employ him within that period. These facts are conceded by the applicant and the Tribunal finds accordingly.

21. The Department sent the NOIC to the applicant on 16 October 2017, inviting him to respond.  The NOIC set out by way of explanation:

    “On 17 April 2017 the Minister received advice from your sponsor Aluglass Australia Pty Ltd, stating that you have ceased employment with the sponsor on 7 April 2017. Based on the information before me, it appears that you do not currently hold a valid nomination and have not been employed in a nominated position for more than 90 days.

    It therefore appears that you have ceased employment with the sponsor who nominated you in your most recently approved nomination, for a period in excess of 90 consecutive days.”

22. The applicant responded by email to the Department on 16 October 2017, asking the Department not to cancel his visa.

23. In his response, the applicant addressed relevant factors being the purpose of his travel in Australia, the extent of compliance with the conditions of his visa, the degree of hardship caused to him, the circumstances arising concerning the cancellation of his visa, his past and present behaviour towards the Department and the legal consequences of the decision to cancel his visa.

24. In his response, the applicant drew attention to his personal reasons for wanting to stay in Australia for opportunity and personal betterment, the fact that he was qualified for the role of graphic designer and anticipated gaining employment in regional New South Wales, (although not then established), significant hardship which he anticipated because of lack of opportunity and poverty in the Philippines, the fact cancellation was due to no fault of his own when he was made redundant, that he had worked diligently, that he had complied with all conditions otherwise and not come under notice, and finally that his family would be severely affected and he would be left in serious debt should the visa be cancelled.

25. The delegate considered these matters put to the Department by the applicant in response, and after careful consideration, determined that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa. It should be noted that at that time (November 2017) the applicant was in discussion with JWL, but had not found suitable alternative employment from a sponsor prepared to nominate him. There was no other available information to the Department and after carefully considering the discretionary factors and the applicant’s submissions, it determined to proceed with the cancellation as advised to the applicant in the decision record made 20 November 2017.

26. The Tribunal is satisfied that the ground for cancellation under s 116 (1) (b) exists as the applicant remained unemployed for a period which exceeded 90 consecutive days.

27. Where a ground for cancellation exists, and those grounds do not require mandatory cancellation of the applicant’s visa under section 116 (3) of the Act, the Tribunal must proceed to consider whether, as a matter of discretion, the power to cancel the visa should be exercised.

28. The Tribunal proceeded to hearing on the basis that the applicant could present information and make submissions as to the cancellation decision and the exercise of discretion.

    The Hearing

29. The applicant appeared in person, with his current nominator and provided the following information.

30. The applicant has applied for the visa together with his family as secondary applicants, being the applicant’s wife, and three children aged respectively seven, eight and fourteen. The applicant’s family are currently residing in the Philippines pending the outcome of the application. The applicant has no other family in Australia, although he has a brother who lives in Texas in the United States.

31. The applicant said he first came to Australia in 2015 to work on a 457 visa in Darwin, sponsored for the role of graphic designer by Aluglass. He said he had a written contract of employment for four years, expiring in or about March 2019. The applicant said that without warning he was told he was being made redundant on 7 April 2017 and “paid out” with two weeks’ notice and no redundancy payment.

32. The applicant said he immediately began looking for other employment and on 8 May 2017, moved to Gympie in Queensland where he had obtained an interview for a position as graphic designer and a new employment opportunity. The proposed employer was Property Shop. This company however was not an approved sponsor and a nomination application lodged on its behalf was not approved, apparently for reason that inadequate training information had been provided to the Department. The applicant did not take up employment with this company and remained living with the Filipino community in and around Gympie.

33. The applicant said that he was aware he had only 90 days to obtain another sponsor, and that he understood the work conditions attached to his 457 visa. The applicant said that between April 2017 (termination date) and September 2017, he had made approximately 10 online applications for a graphic designer position throughout Australia, and had several initial interviews. The applicant provided evidence of the job responses made by him in the period between August 2017 and September 2017 at the hearing, for the position of graphic designer. Those applications were, amongst others, to Master Builders (in Brisbane), The Friendly Society Private Hospital, Geocon, Thermo Fisher Scientific, The Heat Group, TAFE Corporate, Bendigo UFS Pharmacies, Fremantle Graphic Design, University of Tasmania, and many others, including JWL.

34. The Tribunal finds it is satisfied that the applicant was making genuine attempts to find suitable alternative sponsored employment as a graphic designer, immediately following his redundancy. The Tribunal finds however that during this period, the applicant ceased his employment for a period exceeding 90 days.

35. The applicant was interviewed by a director of JWL in November 2017, and offered employment to commence in December 2017. The director gave evidence at hearing (referred to below) as to how the position came about and how the applicant was employed.

36. The applicant moved to Tamworth to take up the position in December 2017 and has been continuously employed there since that time. The applicant produced in evidence copies of payslips received by him demonstrating his wage and salary paid throughout the period from December 2017 up until the time of the hearing. The applicant said that the employer, JW L, had indicated they were prepared to sponsor him, although they had not previously been involved in any sponsorship for foreign workers. The applicant said the work he is performing as a graphic designer is the same or similar work to the work he was performing for his sponsor, but is a more senior position with greater responsibility. The applicant said that JWL was very satisfied with his performance and keen to keep him in the business as long as possible and notwithstanding that their initial nomination had been refused, were continuing to pursue the process of a nomination of the applicant through the Tribunal. The applicant said that in the event the cancellation was set aside, and the nomination subsequently approved in favour of his current employer, he would be bringing his application for a TSS 482 visa as soon as he was able to do so.

    JWL witness – Colin McDonald – Director

37. The director appeared at the hearing to give evidence in support of the visa applicant. The director gave a history about JWL, which started as a family business in 1980, by the director’s father. The father, John McDonald, remains the sole director and majority shareholder. The director said there are four brothers who are all employed in the business, and each of whom has a 12% shareholding. The witness is the marketing director and responsible for the day-to-day performance of the visa applicant.

38. The witness said that in about late 2017, the company had to replace the existing marketing role performed by the previous incumbent, Katie Firth, who is an Australian citizen. Ms Firth had resigned from her employment to move to America with her fiancé. Ms Firth had been in the role since about 2011. The director said the company employs approximately 22 people including family members, all of whom are Australians. The only non-Australian is the visa applicant.

39. The witness explained that the company supplies welding equipment primarily to the domestic market. He said the business had been very successful and the operation was expanded in about 2000 to include a wholesaling operation. He said the retail business operates under the name Jaymac, and now comprises approximately 25% of sales. The wholesale operation has grown significantly and operates under the name Weldcalss and is an Australia-wide distribution business, accounting for approximately 75% of the company’s turnover. He said the annual gross turnover is approximately $12 million. He said the business is located currently in Queensland, W.A. and the head office in regional New South Wales in Tamworth. The company also is opening an office in Newcastle. Prior to the hearing, the applicant provided information concerning the sponsor and the business products which are advertised and sold directly and through outlets such as Mitre 10. The wholesale business operates primarily on Internet sales and advertising, for which the visa applicant is responsible. Examples of the online advertisements prepared using the applicant’s graphic design skills were included in the information responses provided by the applicant.[3]

    [3] Tribunal file ff 139-151

40. The Tribunal asked questions of the director about the position occupied by the applicant. The director said that he had recruited the applicant personally following a recruitment campaign in late 2017, when the company became aware that the previous marketing manager (Katie Firth) was leaving. He said the advertisements commenced in about September 2017, and initially they engaged a recruiter to help fill the role. He said the company was looking for someone experienced in graphic design with a minimum of about five years’ experience, web development and graphic analytics experience, and with an emphasis in advertising and in social media management. He said the position had been profiled on the previous role occupied by Katie Firth, but as the business was growing substantially required a more experienced employee. He said that the applicant had responded to the recruiter and was then referred to him. He said he conducted a Skype interview with the applicant, together with three others whom he also interviewed. He said the other applicants did not have “anywhere near” the skills or experience of the applicant, or who would be willing to live and work in Tamworth. He said it was very difficult to find local applicants in the regional area with enough experience, and those who did apply were not appropriate for the role. He said that if the visa applicant had not become available, and because the position was required to be filled relatively quickly, he would have sought a suitable employee from among other existing businesses. This was not his preferred option as he said in a regional area such as Tamworth it was not ethical to “poach” staff from other local businesses, when all were struggling to find local Australian recruits.

41. He said the company offered the position to the applicant in about November 2017, subject to the applicant obtaining work rights under his bridging visa. The director said he was aware the applicant’s visa had been cancelled and the company would have to seek sponsorship and nomination approvals. The evidence of the director is corroborated in his letter to the Department sent 16 October 2018 in support of the visa application. In that letter the director says as follows:

    “After an exhaustive recruitment campaign through a local Australian recruitment agency we settled on Noriel as the only suitable recruit for our graphic designer role. Noriel was the only applicant that offered the required breadth of skill and appropriate experience to fulfil our needs. Noriel came with more than a decade of relevant graphic design marketing experience and has consequently become an indispensable contributor to the survival and success of our business.

    Given the shortage of labour base with Noriel’s skillset in regional NSW, as well as a significant time and investment we have made in inducting and training Noriel into our business, it would be a massive disruption to our business if Noriel had to cease employment with us due to Visa restrictions. Given that we are very marketing-oriented business losing our only graphic designer would have a serious impact on the entire business.

    And business was established in 1980 and has grown progressively every year. It now has a revenue in excess of $12 million employs over 23 full-time Australian residents. 22 of these employees are based at our head office in Tamworth, regional NSW we are currently experiencing significant success and growth in excess of 20% and in the last 12 months alone we have recruited an additional three Australian residents.”

1. The director clarified some of this evidence at the hearing, saying the company has expanded and opened operations in Western Australia, Brisbane and Newcastle. Its principal activities however are still conducted from the Tamworth head office where the marketing is conducted and managed through the Internet by the applicant, under the director’s supervision.

2. The director said that in order to continue its growth path, the company has expanded into production of a range of welding machines and technical products, which require new Internet marketing material with manuals and product designs, all of which marketing materials originate from the applicant. The director said the company is expecting to launch a new product manual in about March 2019. The Tribunal asked why the applicant was such a critical employee, and the director responded that from his point of view, there had never been a more critical time to engage the applicant’s skills, particularly with his product knowledge and training in marketing with graphic design and in which the company had now significantly invested.

3. The Tribunal asked the director if he had engaged the applicant in full-time employment out of empathy for the applicant’s personal circumstances, and that he was not in fact so critical to the business. The director denied this and said the applicant had not been employed for any “sympathetic reasons” and nor had the role been “created” to enable the applicant to remain employed. He said the role genuinely existed, that the applicant had replaced the previous incumbent, the applicant was excelling at his job and that his role was essential to the continued growth and marketing of the business. The director said he had no personal affiliation with the applicant, they did not socialise outside business hours and the relationship was purely professional as between employer and employee. He said the applicant was a very valued employee and they would like to continue to retain him within the business.

4. The Tribunal finds that the director’s evidence was compelling and the Tribunal is satisfied that the applicant’s position was not created simply for the purpose of assisting the applicant with a migration outcome. The company has only one migrant employee (the applicant) out of more than 20 staff, had advertised for the role widely and has invested significantly in the company’s future with its internet marketing campaign, created by the applicant.

   Additional Submissions and Information from the Applicant

5. The Tribunal wrote to the applicant on 12 October 2018, inviting his initial comments and responses, and providing particulars of the information necessary to support his visa application. The applicant was referred in particular to the requirements of section 116, the visa conditions 8107 and the need for him to explain the relevant circumstances germane to the issue of the exercise of discretion by the Tribunal, should it deem appropriate in the circumstances.

6. The applicant was also asked to make submissions at hearing whether in the circumstances, notwithstanding the grounds for cancellation exist, there are reasons not to cancel the visa which outweigh the reasons supporting cancellation.

   Consideration of the Discretionary Elements

7. 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’

8. The applicant made a written submission to the Tribunal by letter dated 18 October 2018, together with a letter in support from the employer dated 16 October 2018.[4] These letters, together with the oral submissions at hearing comprise the applicant’s evidence for consideration as to the Tribunal’s exercise of discretion.

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

   [4] T filer ff 219-222

9. The applicant has frankly admitted that his purpose in coming to Australia was to create better opportunities for himself and his family. He says the situation since arrival has made this imperative more important since he needs to be able to pay debts which have accumulated to enable him to remain in Australia while supporting his family.

10. The Tribunal finds there is nothing compelling in the reasons provided in the applicant’s submissions which require him to remain in Australia. The Tribunal has some empathy for the applicant in terms of the lifestyle choices he prefers in Australia. However that is not a reason which would “compel” him to remain in Australia.

11. The employer on the other hand, refers to “an exhaustive recruitment campaign” to find the applicant, as well as referencing the growth of the applicant’s business and the related importance the applicant has achieved in that growth cycle. The employer makes the submission in its letter, extracted as follows:

    “Given the shortage of labour base with Noriel’s skillset in regional New South Wales, as well as the significant time and investment we have made in inducting and training not real into a business, it would be a massive disruption to our business if Noriel had to cease employment with us due to Visa restrictions. Given that we are a very marketing-oriented business losing our only graphic designer would have a serious impact on the entire business.”

12. In the Tribunal’s view, this carries some weight in terms of consideration as to the exercise of discretion, as establishing a compelling need in favour of the applicant to continue to be able to provide graphic design services to the employer and the employer’s business growth and development, and in the absence of suitable alternative Australian employees.

    Past and present behaviour of the visa holder towards the Department

13. The Tribunal is not aware of any fact, matter or circumstance prior to the events giving rise to the cancellation, and since, as between the applicant and the Department.

14. From the Tribunal’s perspective, the applicant has maintained his relationship with the Department and provided information as and when requested as to his current circumstances. There is nothing in relation to the issue of behaviour which might weigh against the applicant and if anything, the Tribunal places any weight for this consideration in favour of the applicant.

    Other relevant circumstances-consideration

    Hardship

15. The Tribunal notes the applicant’s submissions as to the financial hardship caused to himself and his family. The Tribunal accepts that there will be some financial difficulty caused and particularly in relation to the debts now raised by the applicant in Australia which he may be unable to repay.

16. The Tribunal also accepts there will be some dislocation caused by the applicant having to relocate back to the Philippines and that the applicant will not be returning to paid employment, and may have some difficulty being able to support himself and his family. The submissions made by the applicant in his letter are heartfelt and intended to provide a sympathetic picture for the applicant’s personal circumstances. Although the Tribunal shares some sympathy for the applicant’s personal circumstances, they are on their own insufficient to warrant that the applicant be allowed to remain in Australia and the cancellation decision set aside.

17. There is no probative evidence before the Tribunal that the applicant will be unable to find suitable alternative employment if he returns to the Philippines.

18. The Tribunal is mindful of the need to support the integrity of the temporary skill shortage program in Australia. It was not intended when the applicant was granted a 457 visa that he would be able to remain in Australia permanently, although there may have been an opportunity for permanent residence had his employment continued. The program however was not designed as a means of simply finding suitable alternative employment for an applicant who had arrived in Australia and whose designated position and circumstances changed.

19. For these reasons the Tribunal places little weight on the consideration of hardship that may result from the cancellation decision being upheld.

    The circumstances surrounding the cancellation

20. The Tribunal notes the submissions from the applicant and finds that the applicant’s position was made redundant after he had commenced employment with the sponsor in the nominated position in Darwin. The Tribunal accepts that the redundancy came about as a shock to the applicant and through no fault of his own. Accepting the circumstances as outlined by the applicant, the nominator failed to provide the applicant with adequate notice or a redundancy payment and left him in very difficult circumstances. Together with the two weeks’ paid notice, the applicant’s employment ceased on 21 April 2017, and required him to find another sponsor and employment in the nominated occupation by no later than 21 July 2017.

21. The applicant was aware of the 8107 condition of his visa and the need to find another sponsor for the employed position within 90 days. He immediately set about doing so and initially found a sponsor in May 2017, within the requisite period, but which sponsorship application subsequently failed as referred to above (Property Shop).

22. The applicant made many applications and approaches to potential employers between April and October 2017. It was not until November 2017 that the applicant was successful in finding the current employer who was willing also to sponsor him. As noted, that sponsorship application is under review and is yet to be finalised.

23. The Tribunal accepts that the applicant has acted responsibly and diligently following the circumstances of his redundancy and subsequent cancellation of his visa. The Tribunal places some weight on the fact that the applicant has remained in employment with his current sponsor since December 2017, while awaiting the outcome of the current sponsorship and nomination applications, and this review application.

24. Overall, the Tribunal places some weight in the applicant’s favour in regard to this consideration, and does not accept the finding by the delegate that the applicant was “not taking any steps to regularise his immigration status” since being made redundant. The Tribunal is satisfied on the evidence now submitted that the applicant was taking appropriate steps and did so promptly, even though he was unable to obtain a new sponsor within the requisite 90 day period.

    Past and present behaviour towards the Department

25. There is no fact matter or circumstance before the Tribunal that the applicant has been uncooperative with the Department or has come under notice for any reason, and the Tribunal agrees with the delegate’s decision this finding should be given some weight in consideration of the cancellation decision.

    Whether there are persons in Australia whose visas may be cancelled under section 140

26. The Tribunal is satisfied there are no other persons in Australia whose visa would or may be cancelled under section 140 of the Act and the Tribunal gives no weight to this consideration.

    Legal consequences of a decision to cancel the visa

27. Upon cancellation, the applicant will need to comply with the provisions of his Bridging Visa and will have an opportunity to depart Australia. The cancellation itself does not prevent the applicant from returning to the Philippines and subsequently applying for any further visa to which he may be eligible from overseas, and provided he continues to comply with the provisions of his Bridging Visa. The Tribunal places little weight on this factor as a consideration not to cancel the visa.

    Australia’s international obligations that would or may be breached if the visa were cancelled

28. The Tribunal is not aware of any international obligation which would be breached as a consequence of the cancellation of the applicant’s visa and accordingly no weight attaches to this consideration.

    Summary findings – Relevant Matters

29. The Tribunal has paid careful regard to the submissions from the applicant and the applicant’s employer. The Tribunal has also had regard to the considerations by the delegate in reaching a decision to cancel the visa, and which decision did not have available at that time the substantial information now provided by the current employer, who is also seeking to sponsor the applicant and to continue his employment. That matter is currently subject to review.

30. The Tribunal finds it is persuaded by those submissions. The applicant is a skilled employee who has demonstrated over several years his ability to perform the tasks of his nominated occupation, and to do so in circumstances where no equivalent Australian was available in the regional location where the applicant was employed. The applicant has become a valued and productive member of the workforce whose skills have significantly contributed to the current employer’s growth and development and which growth and development has significantly improved since the engagement of the applicant. This indirectly benefits the community at large as well is the Australian economy and is not to be disregarded as insignificant or inconsequential. On the contrary, the Tribunal regards the applicant’s contributions to the employer and by default to the Australian economy as exceptional and worthy of significant consideration.

31. For those reasons, the Tribunal finds that the weight of evidence is in favour of the applicant in terms of the exercise of discretion to set aside the cancellation decision, notwithstanding that the grounds for cancellation under section 116(1) (b) have been made out. The Tribunal finds that all the relevant considerations referred to above on the evidence submitted in support of the application outweigh the reasons to cancel the visa.

32. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

33. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Alan McMurran
    Member