Javadi (Migration)

Javadi (Migration) [2021] AATA 3107 (5 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Aziz Javadi
CASE NUMBER:  2016648
HOME AFFAIRS REFERENCE(S):          BCC2020/1432891
MEMBER:L. Hawas
DATE:5 July 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa.

Statement made on 5 July 2021 at 4:53 pm

CATCHWORDS
MIGRATION– cancellation– 457 (Temporary Work (Skilled))–applicant was not able to secure another nomination – breached condition 8107– applicant ceased employment for more than 60 consecutive days – COVID-19 pandemic – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994

STATEMENT OF DECISION AND REASONS

Introduction

1.      The applicant is a 37 year old man from Afghanistan.[1] The applicant is married and has two sons (one seven years old and one three years old). His wife and family live in Afghanistan.[2] He first came to Australia on a visitor visa in 2015 and then stayed in Australia for some time on a student visa.[3] On 8 May 2018, the Department of Home Affairs granted the applicant a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa for four years to 8 May 2022.[4] By written decision dated 12 November 2020, a delegate of the minister for the department cancelled the applicant’s visa.
[1] The applicant was born on 1 January 1983. See delegate’s decision dated 12 November 2020 at p. 1. The applicant confirmed his date of birth at the hearing on 30 April 2021.
[2] Applicant’s oral evidence at the hearing.
[3] Applicant’s oral evidence at the hearing.
[4] Delegate’s decision at p. 1.
2.      The delegate cancelled the applicant’s visa under s.116(1)(b) of the Migration Act 1958 (Act) on the ground that he did not comply with condition 8107(3)(b) of his visa. That condition provided that if the applicant ceased employment with his sponsoring employer the period during which the applicant ceases employment must not exceed 60 consecutive days. The delegate found that the applicant ceased employment with his sponsoring employer effective on 7 April 2020 and that he ceased that employment for more than 60 consecutive days in breach of condition 8107(3)(b). [5] After considering the matters relevant to the delegate’s discretion to cancel the applicant’s visa the delegate decided to cancel.
[5] Delegate’s decision at p. 2.
3.      The applicant has now applied to this Tribunal for a review of that decision. The applicant gave the Tribunal a copy of the delegate’s decision at the time he applied for this review.
4.      Accordingly, in this review, the Tribunal must decide whether the ground for cancelling the applicant’s visa is made out, and if so, whether the visa should be cancelled.
5.      For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

Procedural matters

6. The applicant appeared before the Tribunal on 30 April 2021 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.
7. The hearing was held during the COVID-19 pandemic. The Tribunal exercised its discretion to hold the hearing by video conference (Microsoft Teams). The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick. The hearing of the matter would have been delayed if it was not to be conducted by video conference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments at the hearing.
On 30 April 2021 (just before the hearing), the Tribunal received written submissions from the applicant’s migration agent (pre-hearing submissions). On 10 May 2021, the Tribunal received further submissions from the applicant’s migration agent with documents attached to those submissions (post-hearing submissions). In this review, the Tribunal has considered the pre-hearing submissions and post-hearing submissions and the documents attached to those submissions.

Is the ground to cancel the applicant’s visa made out?

8.      The Minister or the Tribunal (on review) may cancel a visa under s.116(1)(b) of the Act if satisfied that the visa-holder has not complied with a condition of the visa.
9.      Here, the applicant’s visa contained condition 8107(3)(b), which provided that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.[6]
[6] Delegate’s decision pages 1 and 2 and the department’s records on the Integrated Client Services Environment.
10.    The Tribunal has the following evidence before it relevant to whether the applicant has not complied with condition 8107(3)(b) and whether the ground to cancel the applicant’s visa under s. 116(1)(b) has been made out:
(a)The standard business sponsor who nominated the applicant for his 457 visa was Universal Property Group Pty Ltd (Universal). That company was still the applicant’s nominating employer when his visa was cancelled on 12 November 2020;[7]
[7] Delegate’s decision at p. 2 and applicant’s oral evidence at the hearing.
(b)Universal operates a building and property development business. Universal employed the applicant as a renderer;[8]
[8] Applicant’s oral evidence at the hearing.
(c)The applicant commenced work with Universal on 16 August 2016. The applicant’s salary with Universal was $1,150 per week after tax. The applicant worked Monday to Friday and half a day Saturday. His contracted working hours were between 7 a.m. and 3 p.m. on weekdays;[9]
[9] Applicant’s oral evidence at the hearing.
(d)At Universal, the applicant primarily repaired render and cladding defects in new homes and buildings that Universal had constructed, usually in response to customer complaints. When there was a lack of repair work for the applicant to complete, the applicant would carry out original render work for Universal but only on smaller jobs. Most of the original render work, especially the large jobs, was carried out by sub-contractors to Universal not employed renderers such as the applicant;[10]
[10] Applicant’s oral evidence at the hearing.
(e)The applicant ceased working for Universal on 7 April 2020. That was the applicant’s last day at work with Universal. The applicant stopped working for Universal – the company did not dismiss him. He did that for three reasons;[11]
[11] Applicant’s oral evidence at the hearing.
(f)First, rendering work could not be carried out on days when it was raining. As required by his contract, the applicant attended on site for work every day even if it was raining. On rainy days, the Universal supervisor to whom the applicant reported would criticise and insult him for coming to work on rainy days when there was little work that he could carry out. Universal’s supervisor repeatedly insisted that the applicant take sick days or annual leave on rainy days and not come to work. The applicant refused and told Universal’s principal that he would only take sick days when he was sick and annual leave when he needed leave. This resulted in arguments between the applicant and Universal’s supervisor and principals;[12]
[12] Applicant’s oral evidence at the hearing.
(g)Second, each evening, Universal gave the applicant the address of the site where he was to complete repair work on the following day (usually by text). But it did not give him a description of the defects he was to repair and what material was necessary to complete the repair work. Sometimes, he would attend on site and discover that the finish was not render but a textured finish that required repair. Universal did not give the applicant texture for repair work but only render. On occasions when the applicant did not have the correct material to complete the repair work, such as texture, Universal would ask him to buy the necessary textured product or other product and that Universal would reimburse him later. Universal never reimbursed him for material that he bought with his own money. Universal owes him $1,500 for material that he bought to complete repair work;[13]
[13] Applicant’s oral evidence at the hearing.
(h)Third, his contracted hours with Universal required him only to work to 3 p.m. each day. Any work that he did after 3 p.m. was overtime or work that he would quote Universal to complete (usually per job). In the summer of 2018/2019, he did overtime work or work that he quoted per job for Universal at its request. He did that for six or seven months. Universal has never paid him for that overtime or quoted work;[14]
[14] Applicant’s oral evidence at the hearing. Text message exchanges between the applicant and Universal representatives, which the applicant sent the Tribunal with the post-hearing submissions.
(i)On 3 October 2019, the applicant sent “Kumar” (the owner of Universal) by text an invoice of even date for $8,500 for work that he did at two addresses, for “evening job” and for fuel and tools. In the text message, the applicant stated “I didn’t receive anything from my invoice I need it very urgent please”;[15]
[15] Text message from the applicant to “Kumar” on 3 October 2019, which the applicant sent the Tribunal with the post-hearing submissions.
(j)For months before that, the applicant asked Universal’s principals repeatedly for the money it owed him for the overtime work he completed over the previous summer and for the $1,500 it owed him for materials he bought to complete repair jobs. Universal’s principals ignored him and did not pay. On 8 October 2019, the applicant sent Universal a text stating that he was not going to work that day because Universal had not paid him and that he would not be returning to work until he was paid. The following day, “Mannish”, who was a manager at Universal, called him and asked him to come to the office to discuss his issues. He attended the office and spoke to Mannish. They calculated that Universal owed him $1,500 for material and $7,000 for overtime and quoted jobs. Mannish told him that the person who arranges repair jobs and pays employees for repair jobs was in India. When that person returned, he would arrange for the applicant to be paid the outstanding money. On that basis, the applicant agreed to return to work;[16]
[16] Applicant’s oral evidence at the hearing.
(k)When the relevant person returned from India, the applicant called the person and spoke to him about the outstanding money. The person told the applicant that he had “signed the paper” necessary for the applicant to be paid and that he would be paid soon;[17]
[17] Applicant’s oral evidence at the hearing.
(l)As the months passed without the applicant being paid, the applicant sought to speak to “Kumar” about the outstanding money. Kumar did not respond to the applicant’s texts and did not return his calls;[18]
[18] Applicant’s oral evidence at the hearing.
(m)As a result, the applicant decided that he would stop working on 7 April 2020 and would not attend for work the next day. When Mannish texted the applicant that evening about the repair jobs for the following day, the applicant replied and stated that he had not been paid for material and overtime as promised and that he would not be returning to work until he was paid;[19]
[19] Applicant’s oral evidence at the hearing.
(n)Mannish called the applicant and asked him to come to the office the following day to speak to Kumar. The applicant went to the office the following day and met with Mannish. He told Mannish that Universal had not paid him the money it owed him for material and overtime jobs despite repeated requests for payment. The applicant gave Mannish the keys to the company utility that the applicant drove. He told Mannish that if Universal paid him the money it owed him he would return to work immediately and then left. A few days later, Mannish called the applicant and asked him to return to work and that Universal would pay him the money it owed him. The applicant said that Universal had promised that in the past but did not pay. The applicant said again that when Universal paid him he would return to work immediately;[20]
[20] Applicant’s oral evidence at the hearing.
(o)Universal did not pay the applicant and he did not return to work. Universal also owes the applicant for some days when he went to work on rainy days but was not able to do any work. The applicant did not want to leave work with Universal and wanted to stay. But despite repeated requests, it did not pay him the money he was owed. He was upset about that and did not want to leave Universal but felt he had little choice;[21]
[21] Applicant’s oral evidence at the hearing.
(p)Subsequently, the department received written notification from Universal that the applicant ceased employment with the company effective 7 April 2020.[22] That notification was an email from Universal’s migration agent to the Australian Border Force on 17 April 2020. The email provided: “On behalf of Universal Property Group, we wish to advise that the following person has ceased employment with the company”. The email went on to give the applicant’s details and provided that the “exact date of cessation: 7 April 2020”;[23]
[22] Delegates decision at p. 2.
[23] Email from Universal to the Australian Border Force on 17 April 2020 on the department’s file.
(q)After he ceased work with Universal, he looked for another employer who would nominate him. By that time, the COVID-19 pandemic had commenced (with the resulting business shut- downs and interruptions) and the construction industry slowed down and many offices of construction companies closed. Therefore, he had trouble getting employers to meet with him or speak with him. He called the construction companies about which he knew or learnt. All of the companies he approached told him they did not have a position for a renderer (because they subcontracted all their work) or they did not want to employ somebody on a temporary visa;[24]
[24] Applicant’s oral evidence at the hearing.
(r)The Department of Home Affairs sent the applicant a notice of intention to consider cancellation of his visa dated 27 August 2020. In the notice, the department stated that Universal had advised it that the applicant ceased employment with it effective 7 April 2020. The department stated the applicant ceasing employment appeared to constitute a ground to cancel the applicant’s 457 visa under s. 116(1)(b) of the Act for beach of condition 8107(3)(b). The department asked the applicant to comment on that ground for cancellation;[25]
[25] The notice of intention to consider cancellation dated 17 August 2020 is on the department’s file.
(s)The applicant responded to the notice of intention to consider cancellation of his visa by letter from his migration agent dated 31 August 2020.[26] In his response, the applicant stated that:
[26] The response is on the department’s file.
(i)Due to COVID-19, the Universal did not pay the applicant for expenses he incurred in the course of his employment including fuel, shopping and tools. Also, Universal did not pay the applicant for overtime, sick pay, and holiday pay;
(ii)The applicant looked for another employer but due to COVID-19 could not get a job;
(iii)Universal is still interested in employing the applicant again. That is why the applicant did not inform the department that he had ceased work with Universal;
(iv)The applicant has complied with all his visa conditions;
(v)The purpose of the applicant’s travel was to work in Australia;
(vi)If the visa is cancelled, the applicant will suffer hardship and it will cause hardship to his family (the applicant did not describe the hardship alleged);
(vii)“Whatever has happened was for reasons beyond his control, that is Covid-19”; and
(viii)The applicant will be able to get a sponsor if some time was given to him.[27]

(t)The applicant is currently operating his own rendering business under an Australian Business Number. Primarily, he sub-contracts to two construction companies. He employs four renderers in his business. He began operating that business two or three months after he ceased working for Universal;[28]
(u)He has asked the two companies to which he sub-contracts whether they would nominate him for a visa. Both have told him that they have too many employed renderers and they are not in a position to nominate him;[29]
(v)It is difficult at present to secure sponsorship as a renderer. If he were a bricklayer it would be easier;[30] and
(w)The applicant said that he knew it was a condition of his visa that he could not cease employment with Universal for more than 60 consecutive days.[31]
[27] These matters were essentially repeated in the pre-hearing submissions.
[28] Applicant’s oral evidence at the hearing.
[29] Applicant’s oral evidence at the hearing.
[30] Applicant’s oral evidence at the hearing.
[31] Applicant’s oral evidence at the hearing.

11.    In this case, for the power to cancel the applicant’s visa to be enlivened under s. 116(1)(b) of the Act for breach of condition 8107(3)(b), he must have ceased employment with Universal and not resumed employment within the following 60 consecutive days.
12.    On the evidence before the Tribunal, it finds that the applicant’s employment with Universal ceased on 7 April 2020, which was his last day at work for Universal. The applicant told Universal on the following day that he would not return to work unless he was paid the money he claimed universal owed him. Subsequently, Universal did not pay the applicant the money he claimed and he did not return to work despite Universal asking him to return. An employee ceasing work with an employer does not always necessarily constitute the employee’s employment ceasing. For example, an employer might place an employee on leave (paid or unpaid). It does not follow that the employee’s employment ceases at the same time. Subsequently, the employee may abandon his employment and not return or the employer may subsequently dismiss the employee. In either of those events, the employee’s employment will cease after (sometimes well after) the date on which the employee ceased work. But in the case at hand, the applicant ceased work on 7 April 2020 and offered to return conditionally on being paid what he claimed Universal owed him. That condition was never satisfied and the applicant did not return to work for Universal. In those circumstances, the Tribunal considers the applicant’s employment to have ceased on 7 April 2020 when he last worked for Universal.
13.    The applicant did not resume employment with Universal within the 60 consecutive days after 7 April 2020.
14.    Even if, strictly, the applicant’s employment with Universal did not cease on 7 April 2020 but sometime after, it does not matter for the purpose of this review. The applicant did not ever return to work for Universal after 7 April 2020 and his employment with the company never resumed. Accordingly, the applicant’s employment with Universal ceased for more than 60 consecutive days regardless of whether technically it ceased on 7 April or sometime after.
15.    For those reasons, the Tribunal finds that the applicant breached condition 8107(3)(b) of his visa and the ground to cancel his visa under s. 116(1)(b) of the Act has been made out.

16. The Tribunal considers the applicant’s breach of condition 8107(3)(b) of his 457 visa to be a substantial one. After ceasing work with universal on 7 April 2020, the applicant did not secure another application to nominate him for a visa or an approved nomination. The Tribunal returns to that matter below.

Consideration of the discretion to cancel the applicant’s visa

Section 116(1)(b) of the Act does not require mandatory cancellation of the applicant’s visa. Having found that grounds for cancelling the visa under that section have been made out, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Migration Regulations 1994 (Regulations) that must be considered in the exercise of this discretion. In exercising its discretion, the Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, matters in the ‘General visa cancellation powers’ departmental policy as well as all the other matters it considers relevant. Those are set out below.

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

18. Further to the evidence set out in paragraph 10 above, the Tribunal has the following evidence before it:
(a)The applicant is a British citizen as well as a citizen of Afghanistan. He came to Australia on a British passport. The applicant’s wife and two young sons are in Afghanistan;[32]
[32] Applicant’s oral evidence at the hearing. A copy of the applicant’s British passport is on the department’s file. The first page of the delegate’s decision provides that the applicant is a citizen of Afghanistan.
(b)The applicant first came to Australia on a visitor visa in 2015;[33]
[33] Applicant’s oral evidence at the hearing.
(c)While in Australia, he applied for a student visa that was subsequently granted. He studied business at Bridge College during 2016. During that time, he worked two or three days a week for Universal;[34]
[34] Applicant’s oral evidence at the hearing.
(d)After completing his studies, the applicant left Australia and went to Great Britain and then to Afghanistan. Subsequently, he came to Australia for a second time on a visitor visa to collect some personal possessions he had left here. While in Australia, he arranged for Universal to sponsor him for a 457 visa. Universal’s application to sponsor him for a 457 visa was approved, and the applicant was granted his visa on 8 May 2020;[35]
[35] Applicant’s oral evidence at the hearing.
(e)The applicant has one sister (and brother in law), and many cousins in Australia. His immediate family (wife and two young sons) are in Afghanistan;[36]
(f)In the pre-hearing submissions, the applicant’s migration agent stated:
His circumstances were beyond his control. The applicant requests that he may be given a chance to pursue his employment which he is hoping to get a sponsorship quickly to qualify under the sponsored visa. The Department of immigration was very harsh on him for not letting him some extra time to look for work under these sever (sic) conditions of COVID-19.
(g)If the Tribunal sets aside the decision to cancel the applicant’s visa and he can remain in Australia, the applicant wants to set up himself up in Australia. He wants to take the necessary steps (including completing a skills assessment) and lodge his documents in order ultimately to obtain permanent residency in Australia. He wants to start his own rendering company, buy a house, and bring his wife and children to Australia to live with him here. That is his dream;
(h)In the shorter term, he wants to work in his rendering business and look for and locate another employer to sponsor him for a visa. He is currently looking for another sponsor;
(i)In the post-hearing submissions, the applicant’s migration agent stated:
He kept complying with the visa conditions but for the reasons beyond his control he lost his job and could not find any other job due to COVID-19. The applicant is actively looking for his profession related jobs and now he is about to get a job as mention in No 1 above. The applicant requests that he be given more time to show himself on job and to renew his visa.
(j)The “No 1 above” in the post-hearing submissions was a reference to an undated letter from a company by the name of Vantage Northwest Pty Ltd trading as Vantage Luxe Homes (Vantage) to the applicant, which the applicant sent the Tribunal with the post-hearing submissions. The letter provided:
Thank you for sending us your Resume & our phone conversation on 4^th May 2021.
We are considering your application and will revert back to you shortly as to whether we are in a position to sponsor you.[37]
[36] Applicant’s oral evidence at the hearing.
[37] Note the applicant has not given the Tribunal any evidence that Vantage has applied to nominate him for a visa.

19.    Some of the evidence in the preceding paragraph requires some further explanation. At the commencement of the hearing, the Tribunal explained to the applicant that one of the matters it would take into account when considering its discretion to cancel the applicant’s visa was whether the applicant’s proposed stay in Australia was consistent with the purpose of his 457 visa. During the hearing, the applicant said at several junctures that he had searched for a new sponsoring employer after ceasing work with Universal and that he was still looking for a new sponsoring employer. At one point during the hearing, the Tribunal asked the applicant what he proposed to do in Australia if the Tribunal set aside the delegate’s decision to cancel his visa. In answer to that question, the applicant stated the matters set out in paragraph 18(g) above. The Tribunal then told the applicant that although a 457 will sometimes lead to the visa-holder obtaining permanent residency, remaining in Australia to explore and pursue avenues to residency or remaining permanently in Australia was not consistent with the purpose of a 457 visa and that his answer did not particularly assist him in this review. The applicant then repeated some of the matters in paragraph 18(g) above. The Tribunal then asked the applicant whether he proposed to look for and locate a new employer to sponsor him for a visa. In answer, the applicant stated that he was already too busy with his business. The Tribunal then told the applicant that the purpose of his 457 visa was not to allow him to run his own rendering business. Later in the hearing, the applicant stated that he would continue to try and locate another employer to sponsor him for a visa as set out in paragraph 18(h) above. He said that he had not been able to locate another employer and he had no choice but to work in his own business. The Tribunal then invited the applicant’s representative to address the point in submissions. The representative stated he wanted to address the matter in written submissions after the hearing to which the Tribunal agreed. The applicant’s migration agent sent the Tribunal the post-hearing submissions, which contained the matters set out in paragraph 18(i) above.
20.    A 457 visa is a temporary visa that provides for skilled people to come to Australia to work for an approved employer for up to four years. The visa operated on the premise that it would not undermine job opportunities for Australians. The 457 scheme allowed visa holders to fill roles where there was a genuine skills shortage or, in effect, where a suitably qualified Australian worker is not available.[38]
[38] Larsen G; The subclass 457 Visa: a quick guide; Parliament of Australia at    The applicant’s stay in Australia on his 457 visa was for the purpose of working for Universal to fill a need that employer had for a renderer or plasterer, which it could not fill with a suitably qualified Australian worker. When the applicant ceased employment with Universal on 7 April 2020, given condition 8107(3)(b) of his visa, he effectively had 60 days to secure a new nomination for a visa in order to remain within the conditions of his visa. The applicant was not able to secure a new nomination within 60 days, after which he fell into breach of condition 8107(3)(b). From that point, the applicant’s continued stay in Australia on his 457 was in tension with the purpose of that visa.
22.    The applicant stated that after he ceased work with Universal in April 2020, he tried to locate another employer who would nominate him for a visa. He cited two reasons why he was not able to locate another nominating employer – the COVID-19 pandemic caused the building industry to close or slow down and employers were reluctant to employ him because he was on a temporary visa.
23.    Other than the letter from Vantage the applicant gave the Tribunal with the post-hearing submissions (which referred to a conversation with the applicant on 4 May 2021 – after the hearing), the applicant did not give the Tribunal any written evidence of having searched for an employer after he left Universal. He stated, in effect, that he looked for work for two or three months and then established his own rendering business that now keeps him busy (although he was still searching for a new employer). Given the applicant sought work in a trade where applications for work will not necessarily be written and will often be oral or by word-of-mouth, the Tribunal is prepared to accept that the applicant searched for a new nominating employer after his employment with Universal ceased. Condition 8107(3)(b) of the applicant’s 457 visa contemplated that he would have 60 days to secure a new nomination once his employment with Universal (as his nominating employer) ceased. The applicant searched for a new nominating employer with a view to securing a new nomination during the 60 day period after his employment with Universal ceased. That was consistent with the applicant’s visa. The Tribunal weighs that against cancelling the applicant’s visa.
24.    The Tribunal also accepts that the applicant encountered resistance from employers to his requests for employment after he ceased work for Universal because he was on a 457 visa. Employing someone on such a visa entails having to apply to the department to nominate the visa-holder. The Tribunal understands that some employers would be reluctant to embark on that often costly and inconvenient step and would prefer to wait for a resident or permanent visa holder to employ, even though there may be a shortage of such workers. The Tribunal also weighs that against cancelling the applicant’s visa.
25.    The Tribunal notes that by April 2020, when the applicant ceased work with Universal, the COVID-19 related business interruptions and shutdowns had commenced all around Australia (including in Sydney where the applicant lives). The Tribunal accepts that those business interruptions would have interfered with the applicant’s search for a new nominating employer. The COVID-19 business interruptions would have inhibited the applicant locating a new sponsoring employer within 60 days of ceasing work for Universal. The Tribunal weighs that against cancelling the applicant’s visa.
26.    But the weight the Tribunal places on that matter is limited. The applicant’s own evidence suggests that any downturn in the construction industry and demand for renders/plasterers caused by the COVID-19 pandemic was temporary. Come say the date of hearing at the latest, there was sufficient building and construction work and demand for renderers/plasterers such that the applicant employed four renderers to work in his business that he established in about the middle of 2020 (two or three months after he ceased work for Universal). The applicant said that now he was too busy in his rendering business to look for a nominating employer. On that evidence, the Tribunal finds that the reduction in demand for the applicant’s skills caused by COVID-19 was temporary and by the date of the hearing at the latest COVID-19 was no longer a substantial cause of the applicant not being able to locate a new nominating employer in the Sydney area. The Tribunal accepts that increased demand for the services of renderers as contractors will not necessarily always be co-extensive with an increased demand from construction companies for employed renderers. The applicant did not put any specific evidence before the Tribunal to establish that the demand for rendering employees remained depressed by COVID-19 while demand for rendering contractors increased or returned to uninterrupted levels (as his evidence about his business suggested). The applicant’s evidence was general. On that evidence, and in the absence of specific evidence to the contrary, the Tribunal finds that by the hearing date, the demand for the applicant’s services either as a contractor or an employee were at levels that were not substantially interrupted by COVID-19.
27.    The Tribunal acknowledges the letter from Vantage referred to in paragraph 18(j) above and accepts that Vantage has given consideration to nominating the applicant for a visa. The applicant has made the effort to seek out Vantage and seek employment from it. The Tribunal weighs that against cancelling the applicant’s visa but the weight the Tribunal places on the matter is limited. Notwithstanding Vantage stating that it was considering the applicant’s job application, the applicant has not put any evidence before the Tribunal establishing that Vantage has applied to sponsor the applicant for a visa, let alone evidence that Vantage has successfully nominated him.
28.    The Tribunal has considered the applicant’s evidence that after initially searching for a new nominating employer and not having success he continued to search for one and is still searching for a one. It has also considered his evidence that it is difficult for him as a renderer (as opposed to a bricklayer) to secure a new nomination because construction companies are either reluctant to sponsor renderers because they prefer to sub-contract their work or they prefer to employ Australian residents. The Tribunal has given that claim some weight against cancelling the applicant’s visa but the weight is limited.
29.    In the end, the applicant has not placed any evidence before the Tribunal that another employer has applied to nominate him for a visa and there is no evidence of an approved nomination. Although condition 8107(3)(b) of the applicant’s 457 visa contemplated that he would have some time (60 days) to locate a new sponsoring employer after his employment ceased, it did not contemplate the applicant remaining in Australia for such an extended period – now about 15 months from April 2020 – to locate a new nominating employer. That purpose (extended search for a nominating employer) is not consistent with the purpose of the applicant’s visa.
30.    Further, the applicant’s evidence that he was already too busy with his own business after being asked whether he proposed looking for a new nominating employer weighs against him in this review. The Tribunal weighs that in favour of cancelling his visa. As the Tribunal explained to the applicant at the hearing, a visa holder operating his own business is not consistent with the purpose of a 457 visa. Sometimes, a visa holder can be a stakeholder in a business that has applied successfully to nominate the person for a visa. There is no evidence in this review that the applicant is employed in his business. The applicant stated he was the principal of the business. Further, there is no evidence that the applicant’s business (assuming it is a separate legal entity or able to apply to nominate the applicant as an employee) has applied to nominate him. The Tribunal acknowledges that, in operating a rendering business and continuing to apply his skills in the market, he is behaving in a way that would tend to alleviate any skills shortage for renderers. Viewed that way, the applicant’s business activity is not as inconsistent with the purpose of his 457 as it might seem at first. The Tribunal has taken that into account. But the purpose of a 457 visa is not to allow the visa-holder to operate his own business. It is to allow a skilled worker to work for an employer experiencing difficulty locating skilled employees from the local workforce.
31.    To be clear on this point, the Tribunal accepts that the applicant searched for a new nominating employer after his employment with Universal ceased and that as recently as 4 May 2021 he contacted Vantage about nominating him. It has also considered the applicant’s evidence that he had no choice but to work in his own business because he could not locate another sponsoring employer and that he has spoken to the companies who sub-contract work to the applicant about nominating him. The Tribunal has weighed that evidence against cancelling the applicant’s visa. But the applicant also stated that he was too busy in his own business now to look for a new sponsoring employer. That activity is not the purpose of the applicant’s visa. The Tribunal considers that evidence to weigh in favour of cancelling the applicant’s visa.
32.    Accordingly, the Tribunal weighs the following matters heavily in favour of cancelling the applicant’s visa:
(a)The substantial extent of the applicant’s breach of condition 8107(3)(b) of his visa. The applicant ceased employment with Universal on 7 April 2020. There is no evidence to date of the applicant having secured a new application to nominate him or a new nomination;
(b)The applicant has now had a reasonable opportunity – from April 2020 – to secure a new nomination but there is no evidence before the Tribunal to establish that the applicant has been successful; and
(c)The applicant’s wish to remain in Australia for more time to operate his business and search for work or a new nomination is not consistent with the purpose of his 457 visa.

33. The applicant wants the decision to cancel his 457 visa set aside because that is the means by which he can remain in Australia, obtain permanent residency, and eventually bring his family to Australia to live here with them permanently. Although the applicant did not raise the argument, he might also be able to bring his family to Australia even though he does not obtain permanent residency. For example, he might be able to obtain a secondary 457 (or 482) visa upon which his family can come to Australia (temporarily) if his 457 visa is not cancelled. The Tribunal has also considered that possibility. The applicant claims, in substance, that he wants to remain in Australia because he and ultimately his family will be better off here than in Afghanistan. The Tribunal gives that some weight against cancelling the applicant’s visa. Of course, the applicant and his family will be better off in developed Australia than they will be in developing Afghanistan. Australia is a more stable and secure country than Afghanistan. But the weight the Tribunal places on the claim is limited. Remaining in Australia to pursue permanent residency and bring family members here and enjoy the benefits that entails (such as better economic opportunity and stability) is not consistent with the purpose of a 457 visa. Although the Tribunal acknowledges that a 457 visa is often a pathway to permanent residency and moving family members to Australia (and all the benefits that affords including economic opportunity and stability), hence the weight the Tribunal has given the claim (albeit limited), a 457 visa is temporary and it does not come with any guarantee or express representation of permanent residency and its purpose is not to facilitate overseas family members moving to Australia. Strictly, remaining in Australia to explore permanent residency avenues and ways to bring family members to Australia is not consistent with the purpose of the applicant’s 457 visa.

34. Under this purpose-of-the-457-visa head, the Tribunal has weighed the matters set out in paragraphs 23 to 28 and 33 above against cancelling the applicant’s visa. But the Tribunal considers the matters weighing in favour of cancellation as set out in paragraphs 29, 30, and 32 above outweigh the matters standing against cancellation.
35. Otherwise, the Tribunal does not consider the applicant to have a compelling need to remain in Australia.

The extent of compliance with visa conditions

Other than the applicant’s breach of condition 8107(3)(b) of his visa in issue, he has not breached any other condition of his visa. The Tribunal has weighed that against cancelling the applicant’s visa.

Degree of hardship that may be caused (financial, psychological, emotional, or other hardship) to the visa holder and any family members

If the applicant’s 457 visa is cancelled, subject to any application he might make to extend his stay in Australia he will not have the authority to remain and he will need to leave Australia and return either to Great Britain (where he is a citizen) or Afghanistan (where was from originally and where his wife and children live).
As set out in paragraph 10(s)(vi) above, in his response to the notice of intention to consider cancellation of his visa, the applicant stated that if his visa was cancelled he will suffer hardship as will his family but he did not describe the hardship to which he referred. In his pre-hearing submissions, he stated that “His family is currently in Afghanistan. He is very concerned that if his visa is cancelled his family will suffer hardship.” Again, he did not describe the hardship he claimed.
In response to questions about his hardship claims at the hearing, the applicant said that the situation in Afghanistan was ‘very bad”. He said US troops were leaving the country soon and when that occurred the country would go backwards by 30 years and war could break out. He said the Taliban would take control all around the country – it already controls most of the country outside the major cities. He said after his father passed away six or seven months ago there was nobody in Afghanistan to look after his wife and children and he feared for them. He wants to get them out of Afghanistan.
In his post-hearing submissions, the applicant stated:
He is the sole bread winner of his family in Afghanistan. If he is left without any visa at this stage he will not be able to support himself and his family. Under the current circumstances in Australia he cannot leave Australia. It will be very difficult and devastating for him and his family if he is forced to leave.
41.    Considering the applicant’s evidence as a whole, his hardship claims constitute two broad propositions. First, if his 457 visa is cancelled, he will not be able to pursue or obtain permanent residency or a permanent visa in Australia and he will not, in turn, be able to bring his family to Australia and thereby remove them from the deteriorating security situation in Afghanistan. As already stated, the Tribunal has also considered the possibility of the applicant bringing his family to Australia on secondary temporary visas. Second, cancellation of the applicant’s visa will deprive the applicant from earning income in Australia (at least for the term of his visa) and that will prevent or reduce his capacity to support his family in Afghanistan.
42.    The Tribunal deals first with the latter proposition.
43.    At the hearing, the applicant said that he would return to Great Britain if he could not remain in Australia. The applicant did not explain what the financial outcome will be for him if he returns to Great Britain as opposed to remaining in Australia. However, the Tribunal accepts that if the applicant’s visa remains cancelled, he will suffer some loss of income that the Tribunal can see, and that will in turn reduce the applicant’s ability to support his family or reduce the extent to which he will be able to support them. Great Britain has a comparable Gross Domestic Product per capita to Australia although it is lower.[39] So on that simple analysis, the applicant will suffer some financial hardship if he returns to Great Britain and is able to secure employment there but it will be limited given Great Britain is a stable western democracy with a comparable GDP per capita to Australia. However, the applicant is currently settled in Australia and operating a business that appears to be successful. If he must move to Great Britain, that will come at some cost to the applicant. Also, there will be a period when he is unemployed. Also, if he is able to gain employment in Great Britain, it might not be as well remunerated as what he is currently earning in Australia operating his business or what he will earn working for a new sponsor. If the applicant moves to Afghanistan, then he will suffer elevated financial hardship as will his family. Afghanistan is a developing country with a far lower GDP per capita to Australia.[40] Even if the applicant can find employment there, his income will be far lower than his income in Australia. All of those matters will visit financial hardship on the applicant and his family. The Tribunal weighs those against cancelling the applicant’s visa.
[39]    Turning to the second proposition in the applicant’s hardship claim, it is a little more elusive. The applicant did not refer the Tribunal to any specific evidence about the security situation in Afghanistan and he did not explain specifically how that would impact his family with reference to their particular circumstances. But for the purpose of this analysis, the Tribunal is prepared to accept that Afghanistan will become more unstable after US and NATO troops withdraw and that could impact the applicant’s family. However, that is not the focus of the applicant’s hardship claim in relation to his family. The focus of the claim is the applicant’s family will be better off in Australia (from a security standpoint, financially, and because the family will be united). The focus of the enquiry is more whether the applicant and his family will suffer hardship if the applicant’s visa remains cancelled because that will eliminate or reduce the chance of the applicant’s family moving to Australia to live with the applicant. A deteriorating security situation in Afghanistan lends weight to the applicant’s claim.
45.    As set out in paragraphs 20 and 33 above, the purpose of a 457 visa is not to allow the visa holder to pursue permanent residency or facilitate offshore family members coming to Australia. But a 457 visa is often a pathway to permanent residency and to facilitating offshore family members coming to Australia. If the applicant’s visa remains cancelled that pathway will be substantially removed. Because of s. 140 of the Act, the visas for which the applicant could apply are reduced and the applicant will likely be required to leave Australia. Although that would not foreclose the opportunity for the applicant to return to Australia and seek permanent residency and bring his family to Australia later, he will not be able to do so in the short term. The Tribunal accepts that will visit some hardship on the applicant and his family and it weighs that against cancelling the applicant’s visa.
46.    The Tribunal also accepts that the applicant would have developed some business and commercial contacts in his time in Australia. He also has some family in Australia. Having to leave that behind will cause him some hardship.
However, several matters mitigate against the weight the Tribunal places on the applicant’s hardship claims. First, remaining in Australia for the purpose of earning a higher income than the applicant would earn elsewhere is not the purpose of the applicant’s 457 visa. Further, as set out paragraph 45 above, even though a 457 visa can be a pathway to permanent residency, strictly, remaining in Australia to pursue permanent residency and opportunities to bring offshore family members to Australia is not the purpose of a 457 visa. Third, the applicant is 37 years old and well qualified. His relatively young age and qualifications can only assist him in securing work and establishing a career overseas.
48. On balance, the applicant’s hardship claims weigh against cancelling the applicant’s visa, although their weight is reduced by the matters set out in the preceding paragraph.

Circumstances in the which the ground for cancellation arose. Were the circumstances beyond the applicant’s control?

49.    The applicant claims that he ceased employment with Universal in the circumstances set out paragraphs 10(e) to (o) above. In his response to the notice to consider cancellation of his visa and in the post-hearing submissions, the applicant also stated that Universal had not paid him some employee entitlements in addition to the money for material and overtime jobs and his employment with Universal ceased due to circumstances beyond his control. In support of the applicant’s claim that Universal did not pay the applicant $8,500 for materials and for overtime jobs he submitted a copy of an invoice dated 3 October 2019 to Universal for $8,500. He also submitted a series of copy text messages that he exchanged with representatives of Universal between November 2018 and October 2019. In the messages, the applicant sought approval for quoted jobs, most of which were approved, and he pursued payment of his invoice of 3 October 2019 which had remained unpaid.[41]
[41] The 3 October 2019 invoice was included in one of the texts the applicant submitted to the Tribunal.
50.    On the evidence before it, the Tribunal accepts Universal did not reimburse the applicant for the cost of materials he bought during the course of his employment and for the overtime jobs Universal asked the applicant to carry out. The unpaid invoice of 3 October 2019 and the text messages the applicant submitted to the Tribunal supports the applicant’s oral evidence on those matters. The Tribunal accepts that those matters were beyond the applicant’s control. The Tribunal accepts that those matters caused, or contributed to, the applicant leaving his employment with Universal. The Tribunal also accepts the applicant’s evidence about Universal insisting that he take sick leave or annual leave on rainy days when he was not able to carry out rendering work. The applicant did not submit written evidence of that matter but it is consistent with Universal leaving the applicant out of pocket for materials and overtime jobs. The Tribunal understands how the applicant arrived at the point where he did not want to work for an employer who did not compensate him as agreed and insist on him taking leave unnecessarily. The Tribunal weighs that against cancelling the applicant’s visa.
51.    But the weight the Tribunal places on that matter is reduced. On the applicant’s own evidence, Universal did not dismiss him but he left voluntarily. Other than his demands that Universal pay, there is no evidence before the Tribunal that the applicant took steps to recover the money Universal owed him. And there is no evidence before the Tribunal that the applicant complained to authorities about the way Universal treated him. The applicant also stated at the hearing that Universal always paid his salary on time. It just did not pay him for materials and overtime jobs, and it insisted on him taking leave unnecessarily. So the applicant could have remained with Universal and consulted a lawyer to recover the outstanding money from Universal. He could also have complained about Universal to authorities such as the Fair Work Ombudsman. Instead, he left his employment with Universal knowing that it would constitute a breach of his visa conditions. The Tribunal stresses though that it is not too critical of the applicant for not complaining about Universal while trying to remain employed. The Tribunal understands that employees on temporary visas are in a vulnerable position and can often be beholden to their employer such that they are reluctant to complain. The Tribunal does not weigh these matters in favour of cancelling the applicant’s visa. The Tribunal only applies them lightly to reduce the weight the Tribunal places on the matters set out in the preceding paragraph, which weigh against cancelling the applicant’s visa.

Past and present behaviour towards the Department

There is no evidence before the Tribunal that the applicant has not cooperated with the Department. The Tribunal has weighed that against cancelling the applicant’s visa.

Whether there would be consequential cancellations under s. 140

53. The department has not granted any secondary visas on the grant of the applicant’s 457 visa. Accordingly, there are no visas that will be cancelled consequentially

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

54. At the hearing, the Tribunal discussed with the applicant the grounds upon which he is still in Australia. The applicant told the Tribunal that he is in Australia on a bridging visa E (class WE subclass 050), which he applied for shortly after commencing this review. The applicant was granted that visa on 16 March 2021. If the Tribunal affirms the cancellation decision, that bridging visa will cease. In the absence of the Minister granting the applicant another visa, he will not have authority to remain in Australia. If that is the case, 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. The Tribunal has taken those matters into account.

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 in Australia. Regulation 2.12 of the Regulations prescribes the classes of visas. Subclass 457 (and 482 visas) are not prescribed. Consequently, this limits what visa applications the applicant can make whilst onshore. The Tribunal has taken that potential limitation on the applicant’s future visa applications actions into account and weighed that against cancelling the applicant’s visa.
The cancellation of the applicant’s visa will not attract the application of Public Interest Criteria 4013 (PIC 4013). The visa cancellation will not attract the risk factors set out in PIC 4013 necessary to invoke its application. The Tribunal considers that to have a neutral impact on this review.
The Tribunal has considered the potential impact of PIC 4014 on the applicant. That public interest criteria provides that a visa holder will be affected by a risk factor if the person left Australia as an unlawful non-citizen or the holder of certain bridging visas including a bridging visa E. The risk factor will not operate if the visa holder left Australia within 28 days after the substantive visa ceased to be in effect or a while on a bridging visa granted within 28 days after the substantive visa ceased to be in effect. If it applies, PIC 4014 will effectively bar the visa-holder from obtaining another visa unless the application is made more than three years after the person left Australia or there are compelling circumstances affecting Australia, or compassionate or compelling circumstances affecting the interests of an Australian resident, justifying the grant of a visa within three years after departure.
As set out in paragraph 54 above, the applicant obtained his bridging visa E on 16 March 2021. That is more than 28 days after the applicant’s 457 visa ceased to have effect on 12 November 2020 (when the delegate cancelled it). If that is correct, PIC 4014 will be triggered when the applicant leaves Australia. That could (or will) affect an application for another visa for which the applicant applies from offshore, namely he will be barred from obtaining another visa within three years of leaving Australia. If PIC 4014 applies to the applicant at the time he leaves Australia, and if he subsequently wants to return to Australia on another visa within three years of leaving, the Tribunal has also considered the possibility that the applicant will not be able to make out the necessary compelling or compassionate circumstances justifying a visa grant in order to obtain a visa in those circumstances. The Tribunal has weighed all those matters in the applicant’s favour in this review; it has weighed them against cancelling the applicant’s 457 visa.

Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

59.    The Tribunal has considered Australia’s international agreement and treaty obligations including its non-refoulement and protection obligations.
60.    The evidence the applicant give at the hearing as set out in paragraph 39 above was of a character that could be relevant to Australia’s non-refoulement and protection obligations. The focus of the applicant’s evidence was not so much that cancellation of his visa would result in him being required leave Australia and return to Afghanistan. The focus was more that if his visa remains cancelled, that would prevent or impede him from obtaining permanent residency in Australia, and in turn prevent or impede him from moving his family to Australia and away from the unstable security situation he apprehends in Afghanistan. The Tribunal has considered Australia’s international obligations through the prism of that evidence.
61.    Turning first to Australia’s non-refoulement and protection obligations, the Tribunal considers that cancellation of the applicant’s visa will not place Australia in breach of those obligations. Focusing on the applicant’s personal position, the Tribunal points to two matters. First, on the evidence before the Tribunal, the applicant is a citizen of Great Britain and Afghanistan. If the applicant fears that the security situation in Afghanistan will deteriorate and he does not want to expose himself to that, there is no evidence before the Tribunal to suggest that it is not open to the applicant to return to Great Britain where he will not be exposed to the conditions in Afghanistan. Further, during the hearing, the applicant stated that he would (or could) return to Great Britain if he had to leave Australia. Accordingly, the act of cancelling the applicant’s visa will not necessarily result in the applicant being required to return to Afghanistan and in the applicant being exposed to the security situation he apprehends in that country. The Tribunal considers, in turn, that cancellation of the applicant’s 457 visa will not place Australia in breach of its non-refoulement and protection obligations. Second, even if the Tribunal is incorrect in that analysis and cancellation of the applicant’s visa will ultimately require him to leave Australia and return to Afghanistan, as stated in paragraph 54 above, the applicant will not be required to leave Australia immediately and detention and removal action is not a necessary consequence of the cancellation decision. The applicant will have some time in Australia to arrange for his departure. He will also have time to apply for a visa whilst onshore in Australia, which is not the subject of the bar under s. 48 of the Act. Protection visas are prescribed in r. 2.12 of the Regulations and not subject to the s. 48 bar. Accordingly, if the applicant claims the security situation in Afghanistan will entitle him to protection in Australia, it is open to him to apply for a protection visa whilst onshore in Australia where his claims can be properly articulated and determined. For that further reason, the Tribunal concludes that the act of cancelling the applicant’s 457 visa will not place Australia in breach of its non-refoulement and protection obligations.

62.    Turing to the position of the applicant’s family, the Tribunal also considers that cancellation of the applicant’s visa will not place Australia in breach of its protection obligations. The applicant’s family is currently in Afghanistan. So, cancellation of the applicant’s visa will not expose the applicant’s family, or expose them further, to something in Afghanistan to which they are not already exposed. Further, as stated in the preceding paragraph, it is open to the applicant to apply for protection in Australia even if his 457 visa remains cancelled. There is no evidence before the Tribunal to the effect that it is not open to the applicant’s family to apply for protection in Australia, or for an application to be made on their behalf, if they consider that the security situation in Afghanistan is such that they qualify for protection in Australia. As already stated, the Tribunal accepts that cancellation of the applicant’s visa will remove one path to permanent residency for the applicant, and that will remove a potential opportunity for the applicant to move his family to Australia. But that alone does not place Australia in breach of its protection obligations.
63.    Article 3 of the United Nations Convention on the rights of the Child (CROC), to which Australia is a signatory, provides that the best interests of the child shall be a primary consideration in any action concerning children by administrative authorities. Even though the applicant’s children are in Afghanistan, the Tribunal will consider their best interests as a primary consideration.
64.    The applicant’s claim in relation to his children relies on a successful process other than a favourable outcome in this review. The applicant stated that if his 457 visa is not cancelled (or the visa cancellation is set aside), he will look to obtain permanent residency in Australia and then bring his wife and family to Australia. As already stated, the Tribunal has also considered the possibility that the applicant could bring his children to Australia on secondary temporary visas. The applicant’s claim relies on him applying successfully to bring his children to Australia on permanent or secondary temporary visas after the cancellation of his 457 visa is set aside.
65.    The Tribunal notes that US and allied forces are currently in the process of withdrawing from Afghanistan and that could lead to more instability in that country. Although the applicant’s evidence on the point was general and in some respects vague on how his family will be impacted by the departure of foreign forces, the Tribunal accepts that the applicant’s wife and children could be impacted by increased instability in Afghanistan.
66.    The Tribunal accepts that Australia is more stable, has a better standard of living, and will generally offer a more stable future to the applicant’s children than Afghanistan and that they will be better off if they can live in Australia with their parents. Assuming that not cancelling the applicant’s visa will facilitate the applicant moving his children to Australia, in that sense, the best interests of the applicant’s children under the CROC are better served by the applicant’s visa not being cancelled. Setting aside the delegate’s cancellation decision is the preferable decision.
67.    But to be balanced against that is the general and remote character of the applicant’s claim in relation to his children as set out in paragraph 64 above. The applicant’s claim relies on his 457 visa cancellation being set aside and then him putting himself in a position whereby he can apply for a visa (whether temporary or permanent) for his wife and children to come to Australia. It then relies on those further applications succeeding. That process is a step removed from the outcome of this review. On the limited evidence before the Tribunal, it is unable accurately to assess how successful the applicant is likely to be in his endeavour to bring his children to Australia if his 457 visa is not cancelled. The Tribunal is only able to conclude that it is possible whereas the opportunity to bring the applicant’s children to Australia after he obtains permanent residency or on temporary visas will be lost (at least in the short term) if his visa is cancelled. Given the elusiveness of the claim, the Tribunal places limited weight on it.
68.    In conclusion on the best interests of the children under the CROC, the Tribunal finds that by reason of the matters set out in the paragraph 66 above, cancelling the applicant’s visa will not be in the best interests of his children. The preferable decision would be to set aside the cancellation decision. The Tribunal weighs that in the applicant’s favour in this review; that is, against cancelling his visa. But by reason of the matters set out in paragraph 67 above, the Tribunal considers the extent to which cancelling the applicant’s visa will not be in the best interests of the children to be marginal. That reduces the weight the Tribunal places on this consideration. The Tribunal returns to the weight given to this consideration as against the considerations favouring cancelling the applicant’s visa in paragraphs 71 to 76 below.
69.    Otherwise, on the evidence before the Tribunal, Australia’s international agreement and treaty obligations are not engaged by the cancellation of the applicant’s visa.

Other relevant matters

70.    The Tribunal notes that the travel restrictions currently imposed by countries around the world might impede the applicant from returning to Great Britain or Afghanistan. While the applicant, as the holder of a temporary visa, is not prevented from leaving Australia[42] he might be subject to international border restrictions in Great Britain or Afghanistan preventing his entry. That could delay his departure from Australia. In that event, it is open to the applicant to apply for a bridging visa allowing him to remain in Australia while arranging his departure.[43] The Tribunal has taken all those matters into account.
[42] on discretion
The Tribunal has considered all the evidence before it carefully and all the matters in favour of cancelling the applicant’s visa and all the matters that weigh against that outcome.
The Tribunal considers the applicant’s breach of condition 8107(3)(b) of his visa to be a substantial one. His employment with Universal ceased on 7 April 2020 and there is no evidence before the Tribunal to establish that the applicant has secured another application to nominate him for a visa or an approved nomination. Further, after taking all relevant matters into account, on balance, The Tribunal finds that the applicant’s proposed stay in Australia is not consistent with the purpose of his 457 visa. The Tribunal weighs those matters (as set out more fulsomely in paragraph 18 to 35 above) heavily in favour of cancelling the applicant’s visa.
The Tribunal has weighed several matters against cancelling the applicant’s visa. In particular (but not exclusively), the Tribunal has examined the circumstances in which the grounds for cancelling the visa arose. Although the applicant left his employment with Universal voluntarily, the circumstances in which he did so were such that it was reasonable for the applicant to leave. Those circumstances were largely beyond the applicant’s control. The Tribunal has weighed that against cancelling the applicant’s visa. The Tribunal acknowledges that the ‘General visa cancellation powers’ departmental policy provides that, as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose was beyond the visa holder’s control. But that is not a rule of inflexible application but a general approach expressed in departmental policy. For the purpose of this review, the Tribunal considers the consideration to be one to be weighed with others. The Tribunal has also considered the best interests of the applicant’s children under the CROC. The Tribunal has concluded that deciding to set aside the delegate’s decision to cancel the applicant’s visa is the outcome that is in the best interests of the children under the CROC (as against affirming the cancellation decision) but, on the evidence, only marginally so.
On balance, the Tribunal considers that the matters favouring cancelling the applicant’s 457 visa as summarised in paragraph 72 above to outweigh all of the various matters favouring not cancelling the applicant’s visa including, both individually and cumulatively:
(a)The circumstances in which the cancellation ground arose being largely beyond the control of the applicant; and
(b)The best interests of the applicant’s children as a primary consideration under the CROC favouring setting aside the cancellation decision.
In the end, the Tribunal considers the matters summarised in paragraph 72 above to weigh heavily in favour of cancelling the applicant’s 457 visa. They outweigh all the matters favouring not cancelling the visa, which the Tribunal considers weigh moderately both when considered individually and cumulatively.
The Tribunal concludes that the correct and preferable exercise of its discretion favours affirming the delegate’s decision to cancel the applicant’s visa.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Temporary Business Entry (class UC) (Temporary Work (Skilled)) (subclass 457) visa.
L. Hawas
Senior Member

[2021] AATA 3107

5 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice