Bowring (Migration)

Bowring (Migration) [2018] AATA 74 (9 January 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Lewin Peter Bowring
CASE NUMBER:  1718289
DIBP REFERENCE(S):  BCC2015/1647831
MEMBER:Warren Stooke AM
DATE:9 January 2018
PLACE OF DECISION:  Melbourne
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 09 January 2018 at 11:54am

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled) ) – Previously held multiple working holiday visas – Employment terminated with original approved sponsor – Actively sought a new employer – Applicant was not notified of the Department’s original decision – Discretionary factors – Must have otherwise been entitled to the visa applied for – Left Australia to attend a family funeral – Currently holding a bridging visa – New employer willing to sponsor the applicant – Skills in high demand – Letters of support from new employer
LEGISLATION
Migration Act 1958, ss 45, 46, 48, 65, 65(1)(a) ,116, 116(1)(b),116(3), 140M(1)
Migration Regulations 1994, rr 2.12,2.75, 2.75(2)(a), Schedule 1 Item 1223A Schedule 2 cls 457.211 , 457.223 Schedule 3 Criteria 3003, 3004 ,3005 Schedule 8 Condition 8107
CASES
Quan v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1254
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 February 2017 to cancel the applicant’s Subclass 457 Temporary Business Entry (Class UC) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with condition 8107. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant currently holds a Bridging E (Class WE) visa with full work rights conferred.
It should be noted that this matter was referred to the Member, as presently constituted, on the basis of no jurisdiction, given that the applicant had not responded to the delegate’s decision of 27 February 2016 within the required period of time. Following an investigation, the Tribunal was satisfied that the applicant had not been properly notified of the delegate’s decision in this matter, with the decision being sent to both an incorrect postal address and incorrect email address. Accordingly, the Tribunal accepted the submissions of the applicant’s representative that the matter should be listed for hearing and that the appeal application lodged on 8 August 2017 be heard. As such, the Tribunal is satisfied that the application has been lodged within time for the purposes of this review.
The applicant appeared before the Tribunal on 15 December 2017 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing on 15 December 2017 and furnished further written submissions on 8 January 2018.
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
The issue in the present case is that the applicant terminated employment with the approved standard business sponsor, Corcreevy Pty Ltd on 9 August 2016. As such, the visa holder had ceased employment with the sponsor for more than 60 days without securing an alternative sponsor.
At the hearing, the applicant was unable to produce evidence that the applicant has secured a standard business sponsor, although he asserted that the current employer was agreeable to provide such sponsorship. On this basis the Tribunal allowed the applicant, through his representative, to advise the Tribunal by 28 December 2017, evidence that the current employer of the applicant, South West Civil is prepared to lodge a standard business sponsor nomination. Correspondence to this effect was received by the Tribunal on Monday 8 January 2018.
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.
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. Of relevance in this case is 8107, which states:
(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) subject to paragraph (c), the holder must:
(i) if the holder was outside Australia when the visa was granted--commence work within 90 days after the holder's arrival in Australia; and
(ii) if the holder was in Australia when the visa was granted--commence work within 90 days after the holder's visa was granted; and
(b) if the holder ceases employment--the period during which the holder ceases employment must not exceed 60 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:
(i) must hold the licence, registration or membership while the holder is performing the occupation; and
(ii) if the holder was outside Australia when the visa was granted--the holder must hold that licence, registration or membership within 90 days after the holder's arrival in Australia; and
(iii) if the holder was in Australia when the visa was granted--the holder must hold that licence, registration or membership within 90 days after the holder's visa was granted; and
(iv) must notify the Department, in writing as soon as practicable if an application for the licence, registration or membership is refused; and
(v) must comply with each condition or requirement to which the licence, registration or membership is subject; and
(vi) must not engage in work that is inconsistent with the licence, registration or membership, including any conditions or requirements to which the licence, registration or membership is subject; and
(vii) must notify the Department, in writing as soon as practicable if the licence, registration or membership ceases to be in force or is revoked or cancelled. “
The Tribunal notes that for the purposes of notification of an intention to consider cancellation of the applicant’s Subclass 457 Temporary Business Entry (Class UC) visa that this was the subject of correspondence between the Tribunal and the applicant’s agent from 8 August 2017, when the applicant’s agent lodged a formal application for review.
The issue in this case was originally whether the applicant meets cl.457.211 and the relevant Schedule 3 criteria; however, another criterion also emerges as relevant to this case, and that is cl.457.223(4)(a), which requires that at the time of the Tribunal’s decision, the applicant is the subject of an approved nomination by a standard business sponsor.
The Tribunal will consider each criterion in turn.
Does the applicant satisfy the relevant Schedule 3 criteria?
Relevantly to this matter, cl.457.211 requires that an applicant who is in Australia at the time of application holds a substantive visa other than a subclass 771 (Transit) visa or a special purpose visa. If they do not hold a substantive visa at this time, they may still satisfy cl.457.211 so long as the last substantive visa they held was not a Subclass 771 (Transit) or special purpose visa and they satisfy Schedule 3 criteria 3003, 3004 and 3005. These criteria are extracted in the attachment to this decision.
In the present case, the Department’s records indicate that the applicant was granted a class UC subclass 457 visa on 22 September 2015. The applicant arrived in Australia as the holder of a class TZ subclass 417 Working Holiday visa on 22 June 2013. The applicant was also granted a second working holiday visa on 24 March 2014.
Is criterion 3003 met?
Criterion 3003 applies to certain applicants who have not held a substantive visa since 1 September 1994 and were either an illegal entrant, or were on 31 August 1994 the holder of an entry permit that was not valid beyond that date. The Tribunal is satisfied that the applicant was not such a person, and accordingly criterion 3003 does not apply.
Is criterion 3004 met?
“3004 If the applicant:
(a) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(b) entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;
the Minister is satisfied that:
(c) the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and
(d) there are compelling reasons for granting the visa; and
(e) the applicant has complied substantially with:
(i) the conditions that apply or applied to:
(A) the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and
(B) any subsequent bridging visa; or
(ii) the conditions that apply or applied to:
(A) the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and
(B) any subsequent bridging visa; and
(f) either:
(i) in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or
(ii) in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and
(g) the applicant intends to comply with any conditions subject to which the visa is granted; and
(h) if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.”
The Department’s record, which was contained in the delegate’s decision, indicates that 9 August 2016, was the date that the applicant last held a substantive visa.
A nomination of the applicant, made by Corcreevy Pty Ltd, was approved on 22 September 2015, and pursuant to r.2.75, this ceased on 9 August 2016 when the applicant’s employment was terminated (r.2.75(2)(a)) and the employer formally advised the department that employment had ceased. In evidence, the applicant advised that the project he had been working on with Corcreevy Pty Ltd demobilised when the project work was complete.
“2.75 Period of approval of nomination—Subclass 457 (Temporary Work (Skilled)) visa
(1) This regulation applies to a nomination of an occupation in which a holder of, or an applicant or a proposed applicant for, a Subclass 457 (Temporary Work (Skilled)) visa is identified as the person who will work in the occupation.
(2) An approval of a nomination ceases on the earliest of:
(a) the day on which Immigration receives notification, in writing, of the withdrawal of the nomination by the approved sponsor; and
(b) 12 months after the day on which the nomination is approved; and
(c) the day on which the applicant, or the proposed applicant, for the nominated occupation, is granted a Subclass 457 (Temporary Work (Skilled)) visa; and
(d) if the approval of the nomination is given to a standard business sponsor—3 months after the day on which the person’s approval as a standard business sponsor ceases; and
(e) if the approval of the nomination is given to a standard business sponsor, and the person’s approval as a standard business sponsor is cancelled under subsection 140M(1) of the Act—the day on which the person’s approval as a standard business sponsor is cancelled; and
(f) if the approval of the nomination is given to a party to a work agreement (other than a Minister)—the day on which the work agreement ceases.”
In the hearing, the applicant advised that his employment terminated with Corcreevy Pty Ltd in October 2016, however, the applicant did not furnish any evidence to substantiate this claim, by means of a final pay slip or otherwise. Accordingly, the Tribunal finds that the last date that the applicant held a substantive visa was on 9 August 2016, following which he was not the subject of an approved nomination by an approved standard business sponsor. However, the Tribunal acknowledges that the correspondence received from the representative on 8 January 2018 confirmed that two employers are prepared to nominate the applicant, if the current decision to cancel the Class UC subclass 457 visa was overturned. One of these employers is South West Civil, with whom the applicant has been continuously engaged in employment as a bricklayer since terminating with Corcreevy Pty Ltd. In this regard, it is noted that at the interview with DIBP on 14 January 2017, the applicant advised the officers concerned in the interview that he was employed by South West Civil, Flemington NSW.
The Tribunal has considered whether, in these circumstances, it is satisfied that the applicant ‘would have been entitled to be granted’ a Class UC subclass 457 visa if he had applied on 9 August 2016. The Tribunal notes that the ordinary meaning of ‘entitled’ denotes ‘a legal right or just claim to do, receive, or possess something.’[1]
In considering whether the applicant would have been so entitled, the Tribunal notes that there is a distinction in the wording between sub-items 3004(f)(i) and (f)(ii). Specifically, sub-item (f)(i) requires an assessment as to whether the applicant would have been entitled to be granted a visa of the class applied for when he or she last held a substantive visa, whereas (f)(ii) requires that the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully. The Tribunal acknowledges the legislative interpretation presumption that, where the legislature could have used the same word but chose to use a different word, the intention was to change the meaning[2]. In seeking to correctly interpret and apply the different language in relation to the different categories of applicants, the Tribunal has had regard to Departmental policy in relation to item 3004(f).
The Department’s Procedures Advice Manual (PAM 3) (as at 27 July 2017) states:
MUST HAVE OTHERWISE BEEN ENTITLED TO THE VISA APPLIED FOR
Criteria 3003(f) and 3004(f)(i)
Criteria 3003(f) and 3004(f)(i) require the decision maker to be satisfied that the applicant would have been entitled to be granted the visa (or entry permit equivalent) had they applied for it immediately before becoming unlawful or without a substantive visa.
This requirement supports the policy intention that applicants not gain any advantage by remaining in Australia without a substantive visa.
It requires that the applicant’s circumstances at the time the applicant became an illegal entrant or without a substantive visa to be tested against the criteria for the visa (or entry permit equivalent) and other entitlements for stay and entry (see s65(1)(a) of the Act), at that time, and for which the applicant is currently being considered:
• if the person was an illegal entrant on 31 August 1994 ...
• if the person held an entry permit that was not valid beyond 31 August 1994 ...
• if the person ceased to hold a substantive or criminal justice visa on or after 1 September 1994 - they must be able to be granted the visa in place on the day they last held that visa or
• if the person entered Australia unlawfully on or after 1 September 1994 - they must be able to be granted the visa in place on the day they last unlawfully entered.
Criterion 3004(f)(ii):
Criterion 3004(f)(ii) requires the decision maker to be satisfied that the applicant would have been entitled to be granted a visa of the class applied for if they had applied for the visa on the day when they last entered Australia unlawfully.
It requires that the applicant’s circumstances at the time the applicant last entered Australia unlawfully to be tested against the criteria for the visa (but not the other entitlements for stay and entry as specified in s65(1)(a) of the Act), at that time, and for which the applicant is currently being considered.
The Tribunal notes that, while it may be guided by policy, it is not bound to follow it.[2] In the circumstances of this application the Tribunal accepts that it is a relevant consideration and has had regard to it in the context of the applicant’s individual circumstances. The Tribunal further notes that the policy reflects a distinction in the meaning of the wording between sub-items 3004(f)(i) and (f)(ii) that seems to accord with a plain reading of the wording. It acknowledges the fact that the provisions apply to different groups of people who, it appears the legislature has determined, are to be assessed differently under the Act and Regulations.

In relation to sub-item 3004(f)(i), applicants who are in Australia and who ceased to hold a substantive visa on or after September 1994 are required to establish they would have been entitled to the grant of the class of visa for which they have applied. Given the ordinary meaning of the word ‘entitled’, as discussed above, and consistently with the policy in PAM3, this necessarily entails consideration of section 65 of the Act because that section specifies when a person acquires that legal right or entitlement, that is, when a person is entitled to be granted a visa. It provides as follows:
Section 65 Decision to grant or refuse to grant visa
(1)Subject to sections 84 and 86, after considering a valid application for a visa, the
Minister:

(a) if satisfied that:

(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa;
(b) if not so satisfied, is to refuse to grant the visa.
In the Tribunal’s view, an applicant is therefore only ‘entitled to be granted’ a visa if all the requirements in s.65 are met. That is, the reference in sub-item 3004(f)(i) to whether the applicant would have been ‘entitled to be granted’ a visa, is necessarily a reference to whether the applicant would have had, on the last day the applicant held a substantive visa, an entitlement to the grant of a visa under s.65 in respect of a visa of a particular class. That entitlement to the grant of a visa under s.65 is predicated on a ‘valid application for a visa’ having been made: s.65(1). In order to make a valid application, the applicant must apply for a visa of a particular class (s.45) and meet the requirements prescribed for a valid visa application in s.46 of the Act. This includes at subsection (3) that ‘the regulations may prescribe criteria that must be satisfied for the application for a visa of a specified class to be a valid application.’ Those regulations are found in Schedule 1 of the Regulations. For the Class UC visa, they are found in Item 1223A of Schedule 1.
In Quan v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1254 (Quan), Emmett J upheld a decision of the then Migration Review Tribunal, which considered the application of cl.3004(f)(i). The Tribunal (differently constituted) had found that the visa applicant would not have been entitled to a subclass 457 visa on the last day she held a substantive visa, as she could not meet the requirements for making a valid application in Item 1223A of Schedule 1, which required that the visa applicant specify the employer by whom he or she proposed to be employed, and that the application be accompanied by evidence the proposed employer was an approved sponsor or had applied for sponsorship approval. As the visa applicant would have been unable to specify a proposed employer at the relevant time, the Tribunal found that she would have been unable to satisfy these requirements. In this context, it is also noted, however, that the Tribunal went on to find that the applicant would also not have been entitled to the grant of a subclass 457 visa at the relevant time, as she also would not have been in a position to meet various applicable time of decision criteria in Part 457 of Schedule 2, which referred back to the ‘activity specified in the application’ (at [31]). The Court found that for the purposes of cl.457.211(b)(ii), the Tribunal was correct in finding that the applicant did not meet cl.3004(f)(i) as she would not have been entitled to the grant of a subclass 457 visa on the day on which she last held a substantive visa, as she did not have the sponsorship required for the grant of a subclass 457 visa (see [23] and [25]).
This finding in Quan arguably leaves some doubt as to whether cl.3004(f)(i) requires not just that the Schedule 1 and/or time of application requirements be satisfied at the time of the expiry of the applicant’s substantive visa but whether all the visa criteria need to be met (s.65(1)(a)(i) and (ii)) - that is, time of decision criteria), or whether something less is required.
As noted above, pursuant to s.65 of the Act, an applicant is not entitled to be granted a visa until he or she has satisfied all applicable criteria set down in the Regulations. It follows that an applicant is not ‘entitled to be granted a visa’ until they have met all requirements, including both time of application and time of decision criteria. The Tribunal acknowledges that the adoption of such an approach appears to create a heavy burden on applicants who need to meet item 3004 to satisfy cl.457.211. However, considering the words of the regulation and the plain meaning of the phrase ‘entitled to be granted a visa,’ this is apparently what the legislature intended. The Departmental policy makes clear that the intention of the provision is to ensure that applicants do not gain any advantage by remaining in Australia without a substantive visa, so the imposition of such a high bar to meet item 3004 is arguably not inconsistent with that policy. In addition, in a context in which sub-item 3004(f)(ii) requires that the applicant would have satisfied the criteria for the grant of the visa on the date of the relevant unlawful entry, and does not distinguish between Schedule 1 and Schedule 2 criteria, the Tribunal considers there is no justification to so confine the more broadly worded sub-item 3004(f)(i).
In relation to this application, and like the situation in Quan, Departmental records confirm that the applicant was not able to make a valid application under Item 1223A of Schedule 1, as he could not specify the person who proposed to nominate an occupation in relation to him. Departmental records confirm that the applicant no longer has an approved sponsor at that time and its nomination of him had ceased employment with the original standard business sponsor Corcreevy Pty Ltd. The criteria for the subclass 457 visa are set out in Part 457 of Schedule 2 to the Regulations, and include, for applicants applying on the basis of sponsorship by an Australian business, the criteria in cl.457.223(4).
Among other requirements, cl.457.223(4) relevantly required as follows:
Standard business sponsorship
(4) The applicant meets the requirements of this subclause if:
(a) each of the following applies:
(i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii) the approval of the nomination has not ceased as provided for in regulation 2.75; and
Subclass 457 is the only visa subclass available in the Temporary Business Entry (Class UC) class. No claims have been made in respect of any stream other than the standard business sponsor stream and there is no evidence that the applicant would be able to satisfy the specific criteria for those streams. The Tribunal therefore finds that the applicant would not have been entitled to the grant of a Temporary Business Entry (Class UC) visa on any basis if he had applied on the day he last held a substantive visa.
It follows, the applicant would not ‘have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa.’ The applicant therefore does not satisfy Schedule 3 criterion 3004(f).
As the applicant does not satisfy Schedule 3 item 3004(f), it is unnecessary to consider whether he satisfies Schedule 3 items 3004(c), (d), (e), (g) and (h).
For these reasons, the applicant does not meet Schedule 3 criterion 3004 and therefore does not satisfy c.457.211(b)(ii) and therefore does not satisfy cl.457.211 as a whole.
Sponsor nomination
As discussed at the hearing, and contained in the delegates decision of 27 February 2017, the Department’s records indicate that Corcreevy Pty Ltd’s nomination of the applicant ceased on 9 August 2016 (although the applicant disputed this date and claimed work with the standard business sponsor continued until October 2016, which was not substantiated).
The Tribunal noted from the delegate’s decision that the applicant was interviewed at Sydney Airport by the DIBP on 14 January 2017 following a departure and re-entry to Australia. At the hearing, the applicant volunteered information concerning the departure which was to attend his grandfather’s funeral in Ireland. The delegate noted in the decision that the visa holder was no longer working for the sponsor and that he was then currently working for South West Civil, Flemington, which the applicant confirmed was still the case.
The Tribunal canvassed with the applicant, whether he appreciated that certain obligations arise in relation to the conditions attached to a Subclass 457 Temporary Business Entry (Class UC) visa, particularly condition 8107. He expressed the view that he was not aware of the import of this condition and thought he had 90 days to secure an alternative standard business sponsor. The Tribunal confirmed to the applicant that the current condition 8107 applied 60 days from the cessation of employment.
The applicant’s representative submitted that the applicant assumed he had 90 days from the cessation of employment with Corcreevy Pty Ltd to secure an alternative sponsor, which on his own reckoning would give him until some period in January 2017. In this regard, the applicant volunteered that he was surprised to be detained at Sydney Airport upon his re-entry to Australia regarding the impending cancellation of his visa. This led to his engagement of his current representative and an application for the granting of a Bridging E (Class WE) visa pending the intended proceedings to seek a merit review before the Administrative Appeals Tribunal.
On the evidence before the Tribunal:
i.It is satisfied that the applicant’s 457 visa was subject to condition 8107, and more particularly condition 8107(3)(b). The visa was granted on 22 September 2015, and would have, but for its cancellation, remained effective until 21 September 2019;
ii.It finds that the applicant ceased employment with Corcreevy Pty Ltd on 9 August 2015. The period during which the applicant subsequently remained unemployed exceeded 60 consecutive days; and
iii.It finds that the applicant breached condition 8107(3)(b) of his 457 visa.
Accordingly, the Tribunal is satisfied that the delegate had lawful grounds to cancel the applicant’s visa.
The applicant informed the Tribunal that following the cessation of employment with Corcreevy Pty Ltd, in Perth, he moved to Sydney to seek employment and this led to his engagement with South West Civil, Flemington NSW, with whom the applicant is still employed. The applicant confirmed to the Tribunal that South West Civil was not a standard business sponsor however, he had an expectation that this employer would be prepared to support sponsorship.
As those grounds do not require mandatory cancellation of the applicant’s visa under s. 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.
The discretion
The Act and the Migration Regulations 1994 (Regulations) do not prescribe the matters to be considered in the exercise of the discretion to cancel a visa. The discretion is to be guided by having regard to all the relevant circumstances. The Tribunal may have regard to matters of government policy such as the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’. But the Tribunal is not bound to follow PAM3, and it can have regard to a matter outside of PAM3 so long as the matter is relevant.[3] However, PAM3 constitutes a useful starting point for the exercise of the discretion.
A 457 visa authorises the visa holder to stay in Australia temporarily. It does not create an expectation of a permanent stay. It enables a business to sponsor temporarily a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of skilled occupations.
Correspondence from Mr. Claypole of South West Civil provided on the 8 January 2018 by the applicant’s representative, stated as follows:
“To whom it may concern
I know Lewin Bowring as a competent and qualified bricklayer. Lewin is a hard worker, and a good bricklayer.
At the moment there is huge deficit of qualified bricklayers and other construction workers. It would be a shame if Lewin's visa was cancelled, as he is already here and ready and willing with his great bricklayers skills, and he would be very difficult to replace.
I would also not hesitate to nominate Lewin for sponsorship if his visa cancellation was reversed.
Please contact me if you need further information about Lewin and his skills.
Many thanks
Jason Claypole”
Correspondence from Mr. Hassan Ghonaim of Rizzani De Eccher provided on the 8 January 2018 by the applicant’s representative, stated as follows:
“To whom it may concern.
I confirm that I know Lewin Bowring, as a skilled bricklayer, and I am aware of his current situation with respect to his visa cancellation proceedings.
Lewin has been working with my business, and I value his bricklaying skills and his hard work on our working sites.
It would be an absolute shame if Lewin's visa was not reinstated, because it is extremely difficult to find qualified bricklayers (and all building construction workers in general a very difficult to find at the moment in Sydney), and Lewin has certainly shown himself to be a valuable tradesman. If we lost Lewin because of his visa situation, it will be very hard for us to replace him.
If Lewin's visa was reinstated, I would not hesitate in offering to nominate him, as he is a good bricklayer, and a very hard worker.
Yours sincerely
Hassan Ghonaim”
Accordingly, the applicant’s proposed continued stay in Australia is consistent with the purpose for which he first travelled to Australia. He came to Australia to work as a bricklayer until at least September 2019 when his 457 visa was to expire. That purpose now remains intact. If the Tribunal sets aside the cancellation decision, the applicant can work as a bricklayer until at least September 2019. That stands to the applicant’s favour.
Two other characteristics of this review assist the applicant.
1)First, on the evidence before the Tribunal, the applicant was able to secure an offer of employment as a bricklayer with South West Civil, Flemington NSW, after moving to Sydney. The commencement of this employment appears to be within the 90 days the applicant assumed he had to secure alternative employment in the occupation. In this regard, the Tribunal accepts on the evidence that the applicant genuinely believed he was complying with the condition 8107 of the visa and was unaware that a change in the law reduced this time period to 60 days.
Further, the Tribunal accepts the submission of the applicant’s representative that the applicant’s naivety led to his neglect to formalise the sponsorship with South West Civil, once employed. That the applicant was able to locate alternative employment within 90 days of losing his job with Corcreevy Pty Ltd assists him in this review.
2)Second, the applicant is now working as a bricklayer with South West Civil under a bridging visa E with work rights, and is paying income tax in Australia. He proposes to continue in that role. Mr Claypole has stated that the applicant is a competent bricklayer who is filling a desperate need South West Civil has, and who South West Civil will continue to employ full time. That assists him in this review as well.
The Tribunal gives this consideration significant weight in the applicant’s favour.
The applicant provided evidence that he is settled in Sydney and has a current and stable relationship. He also stated that he does not drink alcohol and does not use drugs. He was also proud of the fact that he has used his leisure time, whilst in Australia, to learn how to sky dive and fly.
Considering all the evidence before it, the Tribunal is prepared to accept that the applicant did not leave Corcreevy Pty Ltd employ voluntarily. The applicant plainly did not want his visa imperiled. The project work had completed and his services were no longer required, which is a common feature of the building and construction industry, where workers regularly mobilise and demobilise for periods of time.
Further, on the documentation provided to the Tribunal post the hearing, it is evident that the applicant is a diligent and competent bricklayer whose skills are in critically high demand in the building and construction industry. In this regard, evidence was provided that a recent survey conducted in NSW demonstrated that a mere 32% of vacancies were filled and that there were low numbers of suitable applicants. That evidence weighs very much in the applicant’s favour.
The applicant provided evidence that he has a mother, father, two brothers and a sister in Ireland and that he was very close to his grandfather, whose funeral he attended post when seeking re-entry to Australia on 14 January 2017. He has established a new life for himself in Australia having experienced some difficulties early in life. He qualified as a bricklayer after spending two years at college and is keen to utilise those skills in Australia.
There is no evidence before the Tribunal that the applicant has not co-operated with the department. To the contrary, the applicant notified the Department of his changes in address however, the address transcribed into the department’s records was incorrect and led to an absence of effective communication with applicant, wherein correspondence remained unanswered until the error was corrected with the engagement of a representative to act on the applicant’s behalf. On the evidence, these circumstances led to significant trauma and subsequently required the applicant’s hospitalisation arising from depression. The Tribunal accepts that the hiatus created in the applicant’s life has been detrimental to the applicant’s wellbeing and that the applicant genuinely wants to work as originally intended. That stands to his favour.
The applicant is currently on a bridging visa because of this review process. In the absence of the applicant making another successful visa application, or the Minister granting a visa, ultimately he will not have authority to remain in Australia. If so, the applicant will have the opportunity to depart Australia. Whilst his continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.
Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s. 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore. The Tribunal has taken that potential limitation on the applicant’s future applications into account.
There are no secondary visa holders whose authority to remain in Australia would be affected by the cancellation decision. This consideration does not apply.
In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).

Before the hearings, there was nothing in the documents before the Tribunal that would have supported an argument that Australia would offend its international obligations if the applicant returned to Ireland. The applicant did not say anything at the hearings, and did not submit any written evidence, that would change that position.
The Tribunal sought advice from the applicant, as to the effect a decision to affirm the delegates’ decision would have upon the applicant. The applicant responded that he would be ‘devastated’. The Tribunal accepts that this would be a likely outcome.
Conclusion
Ultimately, the Tribunal considers in this review the balance of the applicant’s continued stay in Australia and whether that is consistent with the purpose of his original travel here against his breach of the conditions of his 457 visa. The applicant was able to secure alternative employment with South West Civil, whom is committed to sponsor the applicant in a genuine position, particularly in a labour market where there is a scarcity of bricklayers. This is a preferable circumstance to the applicant’s visa being cancelled. The purpose of the applicant’s travel and stay in Australia remains entirely intact. Balanced against that, the applicant technically breached a condition of his 457 visa by working for South West Civil pending the granting of a Bridging E (Class WE) visa which provides full work rights.
The Tribunal considers the purpose of the applicant’s travel and stay in Australia remaining intact outweighs the 457 visa condition breach. The Tribunal weighs the purpose consideration heavily in the applicant’s favour. Further, the applicant remaining in Australia to continue working for South West Civil where there is an employer need for a skilled tradesman is compelling. Against that, the 457 visa condition breach was due to naivety and it occurred in the process of the applicant seeking a fresh nominating employer and an impromptu return to Ireland to attend his grandfather’s funeral. Acting properly, that is what an employee on a 457 visa should do on losing his nominated employer.
Having regard to all the evidence before it, and balancing the matters both in favour of setting aside the delegate’s decision and affirming it, the Tribunal concludes that the correct and preferable exercise of its discretion favours setting aside the decision to cancel the applicant’s 457 visa and substituting a decision not to cancel the visa.
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.
Warren Stooke AM
Member
[1] Scott v Commercial Hotel Merbein Pty Ltd[1930] VLR 75, Irvine CJ at [30] “though it is not to be conclusive, the employment of different language in the same Act may show that the legislature had in view different objects.” See also however Acts Interpretation Act 1901 (Cth), ss.15AC.
[2] See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634 and Durzi v MIMIA[2006] FCA 1767
[3]See Brennan J in Re Drake (No. 2) (1979) 2 ALD 634. The courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they should not be elevated into legally necessary or relevant considerations. The policy guidelines in PAM3 cannot go beyond the wording of the legislation, even when they are favourable to the applicant. See for example Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459.

[2018] AATA 74

9 January 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Remedies