Kaur (Migration)

Kaur (Migration) [2018] AATA 5260 (16 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Mandip Kaur
CASE NUMBER:  1712081
HOME AFFAIRS REFERENCE(S):           BCC2017/788299
MEMBER:Alison Mercer
DATE:16 October 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Statement made on 16 October 2018 at 5:37pm

CATCHWORDS
MIGRATION – cancellation – subclass 457 (Temporary Work (Skilled)) visa – sponsorship approval cancelled – sponsor subject to a 3 year bar on further sponsorship – breach of condition 8107 – new employer unwilling to nominate her for another visa – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 48, 140, 140M
Migration Regulations 1994, r 2.43, Schedule 4, PIC 4014
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 2 June 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(g) on the basis that a prescribed ground under r.2.43(1)(l) existed; namely, that the applicant’s approved standard business sponsor, Curry Khazana Pty Ltd, had its approval cancelled by the Department on 27 February 2017 and was also made subject to a 3 year bar on further sponsorship on the same date.
The Tribunal received a review application from the applicant on 7 June 2017, which was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Anthony Clarke, as her representative and authorised recipient for correspondence.
The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 31 August 2018 to give evidence and present arguments. The Tribunal also received oral submissions from the applicant’s agent.
The Tribunal received additional submissions from the applicant and her agent on 3 September 2018.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
By way of context, the Tribunal is satisfied from the material on the Department’s file and its electronic records that the applicant originally applied for a subclass 457 visa on 26 May 2015, on the basis that she was nominated for the position of Cook by an Australian approved standard business sponsor, Curry Khazana Pty Ltd. She was granted the visa on 22 October 2015 and it was valid until 22 October 2019.
Notice of Intention to Consider Cancellation (NOICC)
On 27 February 2017, an officer of the Department sent an email to the applicant advising her that the Department had recently concluded a monitoring audit of her sponsor, Curry Khanzana Pty Ltd, and as a result, had cancelled its approval as a standard business sponsor and imposed a 3 year bar on it reapplying for approval. The officer further advised that this meant that the employer was no longer an approved sponsor and would not be able to make any future nominations for the subclass 457 visa program until the bar was lifted, and that this bar also affected the employer’s ability to sponsor the applicant for any permanent sponsored visa program.
On 4 April 2017, an officer of the Department (the delegate) issued a Notice of Intention to Consider Cancellation (NOICC) to the applicant in respect of her subclass 457 visa. The delegate identified that there was a potential ground for cancellation of the visa pursuant to s.116(1)(g) of the Act, which refers to prescribed grounds for cancellation. Those grounds were set out in r.2.43 and included, in the case of a person who held a subclass 457 visa granted on the basis of nomination by a standard business sponsor, where the sponsor had its sponsorship approval cancelled or barred under s.140M(1)(a) of the Act (r.2.43(1)(l)(iv)).
The delegate noted that another delegate had made a decision on 27 February 2017 to cancel Curry Khazana Pty Ltd’s approval as a standard business sponsor under s.140M(1)(a) and to bar the company for 3 years from making a further application to be approved as a standard business sponsor. The delegate advised that this indicated that a prescribed ground for cancellation existed under r.2.43(1)(l)(iv), and that if this was correct, then the applicant’s visa was liable to cancellation under s.116(1)(g). The delegate requested that the applicant respond to this information within 5 days of receiving the NOICC.
Applicant’s Response to NOICC
On 6 April 2017, a registered migration agent engaged by the applicant, Mr Anthony Clarke, responded on behalf of the applicant. He made the following submissions:
·the applicant was shocked by the cancellation notification and had done nothing wrong. Given the situation arose due to something wrong done by her employer, it was disappointing that she was not given an option to seek another employer for the balance of her visa validity (to 22 October 2019);
·in order to activate this option, the applicant had now sent a resignation letter to Curry Khazana Pty Ltd’s owners, Mr and Mrs Prakash. This meant that the applicant should now be free to find another approved nomination for the balance of her visa period during the next 90 days, and there were no longer any grounds for the cancellation of her visa as she was no longer working for the business that had lost its sponsorship approval; and
·the agent was uncertain whether the period in which the applicant had to find another approved nomination was 60 or 90 days but expressed the opinion that the applicant would be at the behest of how quickly the Department processed any new nomination made in respect of her by another employer. The agent requested that the Department allow her to secure a new nomination and not cancel her visa in any case, as she had compassionate and compelling reasons not to have her visa cancelled, which she had outlined in a separate letter.
The agent provided the following supporting documents:
·letter dated 6 April 2017 from the applicant confirming that she had resigned that day from Curry Khazana Pty Ltd and was looking for a new employer to nominate her. She stated that she had done nothing wrong but it appeared that her sponsors had not complied with their obligations. She had worked hard for them in her nominated position as a Cook. The applicant listed other employment she had undertaken in Australia while studying and stated that it was very important to her to continue her employment and send money to her parents in India who had paid for her Australian study, particularly since her father lost his left hand in a farming accident. The applicant further stated that while she hoped to obtain permanent residence someday, this was not the main purpose to continue to work as a subclass 457 visa holder and she acknowledged she would not be eligible to apply for permanent residence under the Temporary Residence Transition scheme for at least another 2 years, assuming she found a new employer to sponsor and nominate her. She requested that the Department not cancel her visa and allow her time to secure a new nomination. The applicant stated that she was actively seeking employment as a Cook and was confident of finding a new position; and
·letter dated 6 April 2017 from the applicant to Mr and Mrs Prakash of Curry Khazana Pty Ltd resigning her position as Cook and noting that she was shocked that Mr and Mrs Prakash did not appeal the sponsorship approval cancellation to the Tribunal as they had previously indicated they would.
Department Cancellation Decision
As noted above, the delegate cancelled the applicant’s subclass 457 visa on 2 June 2017. In doing so, she found that a ground for cancellation under s.116(1)(g) and r.2.43(1)(l)(iv) existed and then went on to consider the following discretionary factors in determining whether to cancel the visa:
·The purpose of the applicant’s travel to, and stay in, Australia – the delegate gave this consideration minimal weight in favour of the applicant as the delegate considered that the purpose of the applicant’s subclass 457 visa was to enable her to fill a skill shortage for an Australian employer. However, the Australian Securities and Investments Commission (ASIC) website indicated that the sponsor company was deregistered on 24 January 2016 and therefore could not have been lawfully operating after that date, thus it had no need to fill a labour shortage via the subclass 457 visa program. In addition, there was no evidence that the applicant sought to find a new sponsoring employer within 90 days of the deregistration of her original sponsoring employer, or after being notified on 27 February 2017 that its approval as a standard business sponsor had been cancelled. Although the applicant expressed the view that she should be allowed to find another sponsoring employer, it was not in line with the subclass 457 visa program to permit visa holders to remain onshore for extended periods of time to attempt to have a further nomination approved. In any case, there was no evidence that the applicant had in fact secured a new nomination or applied for another visa to remain in Australia on another basis;
·The extent of the applicant’s compliance with any conditions to which her visa was granted – the delegate gave this consideration minimal weight in favour of the applicant as the delegate considered that the applicant had breached condition 8107(3)(b) of her subclass 457 visa as she had ceased employment with her original sponsoring employer (assuming it ceased operating on 24 January 2016 when it was deregistered) for more than 90 days, and had chosen to remain in Australia despite this non-compliance without departing or regularising her status;
·The degree of hardship that might be caused to the applicant or her family members – again, the delegate gave this consideration minimal weight because, while accepting that the applicant might experience some financial hardship if the visa were cancelled, the delegate found that there was no expectation at the time of the grant of the visa that visa holders would be permitted to remain in Australia for extended periods of time without meeting requirements and complying with visa conditions. In any case, if the visa were cancelled, the applicant would not be subject to Public Interest Criterion 4013; that is, she would not be subject to an exclusion period and could reapply offshore for a further visa (provided she met the requirements for the visa in question). Although the applicant had stated that the visa cancellation would cause her parents in India financial hardship (as she contributed to their support from her Australian wages), the delegate was not satisfied that this hardship would be significant and she found the applicant could continue to support them by working in India. The delegate found no evidence that the applicant had any family members in Australia who would be negatively affected by the visa cancellation;
·The circumstances in which the ground for cancellation arose – the delegate gave weight to this in favour of the applicant as she accepted that it was the sponsor’s actions in not complying with their sponsorship obligations were outside the control of the applicant, as was the cancellation of the sponsorship approval;
·The applicant’s present and past behaviour to the Department – the delegate gave weigh to this factor as well as she accepted that the applicant had been cooperative with the Department and had advised them of her new address and responded promptly to the NOICC;
·Whether there were persons in Australia whose visas would, or might, be cancelled under s.140 – the delegate gave this factor no weight as she did not identify anyone other than the applicant in Australia whose visa would be subject to cancellation;
·Whether there were any mandatory legal consequences to the cancellation decision – the delegate acknowledged that if the applicant’s visa were cancelled, she would become an unlawful non-citizen subject to detention and removal from Australia under ss.189 and 198 of the Act and would also be subject to s.48 of the Act, which limited her options to apply for a further visa in Australia. However, the delegate gave this limited weight in favour of the applicant given that these were the intended consequences of the legislation when a visa was cancelled under these grounds, as this was a serious matter. The delegate further found that the applicant could apply for a bridging visa to make arrangements to depart Australia, and could return to India;
·Whether Australia had any international obligations that would or might be breached as a result of cancelling the applicant’s visa – the delegate gave this consideration no weight as she noted that the applicant had not applied for a protection visa nor claimed that being returned to India would be in breach of Australia’s non-refoulement obligations; and
·Whether there were children in Australia whose interests could be affected – the delegate found that this consideration did not apply in the applicant’s case.
Having considered the above factors and not having identified any other relevant factors, the delegate determined that the grounds in favour of cancellation outweighed those against cancellation.
Pre-hearing submissions to the Tribunal
As noted above, the applicant lodged a review application with the Tribunal on 7 June 2016, with which she provided the material she and her agent had already provided to the Department, as well as an updated statement dated 7 June 2017, in which she made the following points:
·she was very disappointed with the cancellation decision as she felt that she had done nothing to deserve the cancellation;
·she disputed that she knew that her employer’s company had been deregistered on 4 January 2016 and stated that she only became aware of this when she received the cancellation decision. She pointed out that the Department email she received on 27 February 2017 did not mention this fact. She further stated that the owners of the business never informed her that the business was investigated by the Department either. The Department’s email of 27 February 2017 merely stated that her sponsoring employer’s approval had been cancelled but not that her visa was to be cancelled or that the business had been deregistered since 24 January 2016. Nor did it explicitly state that she could no longer work for that employer, as it merely stated that the sponsor could now no longer nominate her for another subclass 457 visa or for permanent residence;
·the failure of the email to address any of these issues meant that the applicant believed that she still had permission to work for the employer, as she still held the visa and it was tied to the previous sponsorship and nomination. She therefore thought that she had to continue working for that business;
·the cancellation decision stated that the applicant was not meant to be working in the business since it was deregistered but the applicant queried how she could have known when this happened as she was not informed by the owners and none of the Department’s correspondence to her prior to the cancellation decision itself mentioned the deregistration;
·the applicant felt misled by the Department as to her true legal position, and it was unfair to take the position that the applicant had had 90 days from 24 January 2016 to find another employer when she was unaware of the deregistration at that time;
·moreover, the company’s owners had promised that they would appeal the sponsorship approval cancellation to the Tribunal but they did not do so. Again, the applicant was not informed of this and found out only when the cancellation decision was made, by which time the appeal period for the sponsorship cancellation decision had expired;
·the applicant maintained that she had taken immediate action to find another employer when she received the NOICC and she disputed the implication made by the delegate that she may not have genuinely resigned from her original employers. The applicant reiterated that not only had she done so, she had moved from Brisbane to Melbourne after resigning;
·the applicant clarified that she had not continued to work for her original employer (or anyone else) after the cancellation but had continued to seek a new position and employer and had done so within 90 days of resigning her original employment. The cancellation was therefore very unfair, especially as the issue of the ASIC deregistration was never raised with her prior to the cancellation;
·the applicant said that she understood that if she could obtain a new nomination, then the Tribunal might be able to reinstate her visa so that she could work with the new employer. The new changes announced by the Minister at Easter in 2017 to the subclass 457 visa program did indicate that there might be some complications in how such a new nomination may be applied for and approved. However the applicant hoped that this would be possible if the Tribunal reinstated her subclass 457 visa before March 2018, when the visa subclass was due to be repealed. At present, it was not known whether the new type of subclass 457 visa nomination would be able to be connected to an existing subclass 457 visa. The applicant also noted that it appeared that shortages in Tribunal Member numbers might also affect the Tribunal’s capacity to consider and determine her review before March 2018;
·as the Tribunal would appreciate from this and from her response to the NOICC, the applicant had always tried to do the right thing regarding her visa status;
·while the applicant’s parents in India would be able to survive without her financial support for the duration of the review, the applicant herself needed to be able to support herself, and she was uncertain as to whether any bridging visa granted to her would have work rights attached. The applicant stated that she hoped to obtain work rights but if she were unable to, her brother in law in India would provide some financial assistance as he had a large farm there;
·the applicant stated that she had been in Australia for 8 years and had always abided by her visa conditions, and remained shocked at the delegate’s finding that she had breached condition 8107 as she had continued her employment with her sponsor after it was deregistered even though she was not made aware of this fact;
·she reiterated that at all times, she had believed that she had the right, and in fact, the obligation, to continue to work for her original sponsoring employer. She believed this up until she received the cancellation decision.
Tribunal hearing
At the hearing on 31 August 2018, the applicant told the Tribunal that she received the email from the Department advising her that her employer’s sponsorship approval had been cancelled on 27 February 2017. It was a Monday and as she did not work on Mondays, she raised the matter with her employer the following day. He told her that he intended to lodge a review application with the Tribunal against the sponsorship approval cancellation decision and that he was confident that it would succeed. The applicant said that she left this to her employer. In response to the Tribunal’s query, she said that she did not have a migration agent at the time, and did not contact the Department to query what this meant in relation to her subclass 457 visa and work rights. The applicant said that she waited for the 21 day appeal period which her employer had to lodge an appeal against the sponsorship approval cancellation, but when she followed this up with her employer, he simply said that he had not lodged an appeal. He did not give her any reasons for either the sponsorship approval cancellation or for not lodging an appeal against that decision.

The applicant further stated that on 4 April 2017, a Department officer phoned her at work to get her consent to send her correspondence by email. This was the NOICC of the same date. The applicant said that once she had read it, she spoke with her friend, who referred her to her present migration agent. The applicant forwarded the NOICC email to her new agent, who advised her to resign her employment. The applicant did so, and then moved from Brisbane to Melbourne on 5 April 2017, at the suggestion of her friend. She stayed with her friend, with whom she went to hospitality college, and her friend’s family. She is still sharing accommodation with them. After speaking with the agent and resigning from her employment, the applicant and her agent provided a response to the NOICC to the Department on 6 April 2017.
In response to the Tribunal’s query, the applicant said that the restaurant was operating as normal up until the time that she resigned. She reiterated that she was unaware that her employer’s company had been deregistered in January 2016, as her employer never told her this, and nothing changed about its operations after this period. Nor did the Department raise this issue with her until it was mentioned in the cancellation decision. The applicant said that once she received the NOICC, she started to look for alternative employment as a Cook on the Gumtree website. She said that there were a number of positions on the website but not all seemed suitable to her. She believed that she had 90 days from the date of her resignation from her original employer to find a new employer. The applicant further stated that she obtained work rights on her bridging visa following the cancellation of her subclass 457 visa, and had been working for a new employer since July 2017 as a part time Cook at a café in Black Rock. This café was quite small, although it had recently been renovated to expand its capacity. The applicant said that she had not discussed with her current employer whether he would be willing to sponsor and nominate her for a subclass 482 visa, as she had hoped her subclass 457 visa would be restored before discussing a new nomination with her current employer.
The applicant said that she needed to work to support herself so that she could pay $100 per week for her accommodation with her friend’s family, and meet her other expenses. The fact that she had been able to get work rights meant she did not have to rely on her brother in law in India for financial support. She was able to also continue to send money to her parents to assist them. In relation to her parents, the applicant confirmed that her father lost his left hand in a farming accident but that he was still able to work on the farm, albeit in a more limited capacity. He was otherwise in good health, as was her mother. The applicant said that it was her parents’ dream for her to obtain Australian permanent residence as she was the only unmarried sibling in her family. The applicant said that she has 2 sisters and 1 brother, all of whom are married and reside in India. The applicant said that if she were to obtain Australian permanent residency, her parents would be financially secure for their old age.
The Tribunal queried with the applicant and her agent whether she could apply for a subclass 482 visa from outside Australia, assuming her current employer was willing to apply for approval as a sponsor and to nominate her. The applicant and her agent conceded that she might be able to do so but her agent queried whether the applicant would be subject to a 3 year exclusion period due to the cancellation of her subclass 457 visa. The Tribunal queried the legal basis of this assertion and the agent indicated he would look into it further after the hearing but believed it to be the case. Moreover, the applicant could not apply under the Employer Nomination Scheme any longer as Cooks were no longer on the list (although she could potentially apply for a Regional Sponsored Migration Scheme visa still). He noted that, in any case, there would be likely to be a waiting period of uncertain duration if the applicant were to apply from offshore, which would be a disincentive to her employer and disadvantageous to the applicant. The applicant reiterated that she strongly wished to remain in Australia and to not to have to return to India. In response to the Tribunal’s query, the applicant said that she did not fear harm or persecution if returned to India, but that she had spent nearly 10 years in Australia and felt that it was her home, not India. She and her parents had made a significant investment to send her to study here, and she had now been working for approximately 3 years in her chosen profession and very much wanted to apply for permanent residence here. She added that she had not been able to face telling her father that her visa had been cancelled, although she had told her mother.
At the conclusion of the hearing, the Tribunal agreed to defer its decision until 14 September 2018 to enable the applicant and her agent to make any further submissions on whether an offshore exclusion period would apply to the applicant, and to provide a supporting letter from the applicant’s employer.
Post-hearing submissions
On 3 September 2018, the Tribunal received a further submission from the applicant’s agent, who indicated that he met with the applicant that morning and had been advised that the applicant’s employer was not in a position to nominate her; however, the applicant was confident that she could find a new employer who could sponsor her for a subclass 482 via or possibly a subclass 187 Regional Sponsored Migration Scheme permanent residence visa if her substantive subclass 457 visa were restored to her. The agent stated that he had a lot of experience in lodging both these types of visas and would do his best to assist the applicant once she found a new employer. He also provided a detailed statement from the applicant, in which she made the following points (in summary):
·after the hearing, she spoke with her current employer about nominating her but he told her that while he appreciated her work and considered her a good cook, he did not consider that his business was large enough for him to seek approval as a sponsor and to nominate the applicant;
·this left her without a new nomination at present, and she therefore requested the Tribunal to reinstate her visa. If this was done, she would have 60 to 90 days to find a new employer and would then be able to lodge a new visa application as she would hold a substantive visa enabling her to do so;
·she believed that she would be able to obtain a new nomination within 60 to 90 days, because if her subclass 457 visa were reinstated, she would have the option of applying for a new subclass 482 visa as a Cook or applying with a regional business for the RSMS visa. For the subclass 482 visa, one must now have 2 years post qualification experience, and one must have 3 years for the RSMS. She obtained he Certificate IV in Commercial Cookery on 26 June 2013;
·during her studies, she worked part time from September 2011 to 6 April 2013 with The Fox Hotel in Aspley, Brisbane, but this could not really be counted as she was still completing the Certificate IV during this time;
·she then worked at the Aspley Hotel from 13 April 2013 until 9 March 2014, so (from the time she completed her Certificate IV), she had 8.5 months of post qualification work experience. However, as she was limited to working 20 hours per week by the terms of her student visa, this was effectively 4.25 months of the equivalent of full time work;
·she then worked part time at Curry Khazana from 6 March 2014, at which time she still held a student visa. This employer nominated her for a subclass 457 visa which was granted on 30 May 2014 for 12 months as the employer was newly established. Later, she was granted a further subclass 457 visa and continued working for Curry Khazana until she sent her resignation letter of 6 April 2017. Therefore, she worked for them for 2.5 months at 20 hours per week (equivalent to 1.25 months of full time work) followed by 2 years and 11 months of full time work;
·since then, she had been working at Uncle Bart in Black Rock since July 2017, usually 24 hours per week but sometimes more and sometimes less. As she had full work rights on her bridging visa E, she was permitted to work all the hours that she was given. She started there on 7 July 2017, and thus had worked there for 14 months part time (equivalent to approximately 8 months full time work);
·in total, therefore, her post Certificate IV work experience was equivalent to 4 years and 2 weeks of full time work, meaning that she would meet the criteria to be sponsored under the subclass 482 or subclass 187 RSMS visa;
·her current International English Language Testing System (IELTS) test results were sufficient for the grant of a subclass 482 via and she was confident that she could obtain higher scores if needed if she could apply for a subclass 187 visa, due to the greater amount of time she had now been in Australia; and
·therefore she asked that the Tribunal reinstated her subclass 457 visa so that she could find a new employer who had the ability to nominate her as soon as possible.
Does the ground for cancellation exist?
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)(g). 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)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(l)(iv) is relevant.
This subregulation provides as follows in relation to prescribed grounds for cancellation (Tribunal’s emphasis in bold font):
…
(l)  in the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa who is a primary sponsored person in relation to a person who is, or was, a standard business sponsor or party to a labour agreement (the sponsor) — that:
(ii)  the sponsor has given false or misleading information to Immigration or the Tribunal; or
(iii)  the sponsor has failed to satisfy a sponsorship obligation; or
(iv) the sponsor has been cancelled or barred under section 140M of the Act; or
(v)  the labour agreement has been terminated, has been suspended or has ceased;
…
The Department’s records indicate, and it was not disputed by the applicant, that the employer who nominated her for a subclass 457 visa, Curry Khazana Pty Ltd, had its approval as a standard business sponsor cancelled by the Department pursuant to s.140M of the Act on 27 February 2017, and on the same date, was also barred by the Department from being approved again for 3 years, also pursuant to s.140M of the Act.
Despite the applicant’s understanding that her employer would seek review of this decision at the Tribunal, this did not occur and this decision still stands.
Accordingly, the Tribunal finds that a prescribed ground, namely r.2.43(1)(l)(iv), exists and thus the ground for cancellation of the applicant’s visa pursuant to s.116(1)(g) is made out.
As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
Consideration of discretion
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
Purpose of the visa holder’s travel to and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia
As discussed with, and acknowledged by, the applicant at hearing, the subclass 457 ((Temporary Work) Skilled) visa is a temporary visa, the purpose of which is to work for a standard business sponsor in a position approved through the nomination process. There is no other permitted purpose for holding a 457 visa.
The applicant's original approved employment has ceased following her resignation from Curry Khazana Pty Ltd on 6 April 2017 after being notified of the cancellation of that employer’s sponsorship approval by the Department. The applicant has been working in her originally nominated occupation as a Cook with a new employer, Uncle Bart, from 7 July 2017 to date, and works there approximately 24 hours per week. However, she advised the Tribunal on 3 September 2018 that that employer was not in a position to nominate her for a temporary or permanent visa in this capacity.
The applicant expressed confidence that she could now meet the criteria for a subclass 482 visa (the successor to the subclass 457 visa), or a subclass 187 RSMS permanent residence visa, given her formal qualifications and substantial work experience in this occupation. However, to date she has not secured a new nomination by a new employer for either a subclass 482 or 187 visa.
The applicant has argued that she has compelling reasons to remain in Australia as she was confident that she would be able to find another employer to nominate and sponsor her as a Cook, either temporarily or permanently, she had spent a significant amount of time in Australia studying and working and considered it her home, and she was contributing to her parents’ financial support in India by working in Australia.
The Tribunal has considered the applicant’s evidence about her employment with Uncle Bart. However, this employer has not lodged a nomination of her, and has now indicated that it will not do so (despite being happy with the applicant’s work). Nor has it been explicitly stated that the applicant would be difficult to replace if she were unable to continue this employment.
The Tribunal accepts that the applicant is sincere about continuing to seek employment as a Cook with another Australian employer who would be willing to sponsor and nominate her for either temporary or permanent residence, but observes that – as at the time of the Tribunal’s decision – she has been unable to secure such employment and a further nomination. Thus, the Tribunal must regard her future prospects of doing so as speculative at best.
Under these circumstances, the Tribunal considers the applicant’s Australian employment to be a relatively neutral circumstance in the assessment of whether or not the applicant’s visa should be cancelled.
The Tribunal acknowledges the applicant’s evidence that she had been in Australia since 2009 as a student and then a sponsored employee, and that the cessation of her employment with her original sponsor was not by her choice, in the sense that the Tribunal accepts that the applicant resigned from Curry Khazana Pty Ltd only after she was advised by the Department that its sponsorship approval had been cancelled. The Tribunal also acknowledges that she sought to find another sponsor and nominator after being made aware that Curry Khazana Pty Ltd’s sponsorship approval had been cancelled. The Tribunal accepts that she ultimately did so with the café Uncle Bart (though this has not led to that employer nominating her for a new visa), and that at present, she continues to work there. It accepts that, in these circumstances, the applicant wishes to remain in Australia.
In the Tribunal’s view, the subclass 457 visa was a temporary visa the purpose of which is to enable Australian employers to fill skills shortages, and it is not a guaranteed pathway to permanent residence or long term temporary residence (the same remains true of its successor, the subclass 482 visa). The Tribunal does not consider the wish of the applicant to remain here for a longer time, or perhaps permanently, to be a compelling reason not to cancel the applicant’s subclass 457 visa, given that it is a temporary visa at best, and is inextricably linked to her being successfully sponsored and nominated for employment by an Australian employer.
The Tribunal acknowledges that the applicant would prefer not to return to India and that she may (initially at least) have a lower standard of living if she re-establishes herself there, although it considers that she would have some support from her family there to do so (her evidence at hearing being that although she has provided some financial support to her parents, particularly after her father’s accident, her father continues to run his farm). However, given the purpose of the subclass 457 visa program (and the fact that it is not a guaranteed pathway to ongoing Australian residence), the Tribunal does not consider this to be a compelling reason not to cancel the applicant’s subclass 457 visa. This is particularly so when the Tribunal takes into account the fact that the applicant has qualifications and employment experience which she could use to secure employment in India and that she has some family support there.
Extent of the applicant’s compliance with her visa conditions
There is no evidence before the Tribunal to suggest that the applicant has not complied with the conditions of her previous student visa, her current or previous bridging visas, or of any other conditions relating to her subclass 457 visa apart from condition 8107.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
As noted above, the applicant indicated that she would suffer some hardship if she had to depart Australia and return to India as she would be going into an economically uncertain future and would be leaving her friends in Australia, having spent nearly 10 years here.
The Tribunal acknowledges that the applicant may suffer some financial, psychological and/or emotional hardship if she had to depart Australia, but does not consider that the degree of financial, psychological and emotional hardship that she would face would be insurmountable as she would returning to her family in India and the Tribunal is not satisfied that the applicant would not be able to find any employment or business opportunities there to support herself, although it might not be at the level that she has experienced in Australia.
The Tribunal also accepts that the applicant feels an obligation to provide for her parents financially in return for their support of her to date, but notes that – despite his accident in which he lost his left hand – the applicant’s father continues to run the family farm and that both her parents are otherwise in good health.
Circumstances in which the cancellation arose
The Tribunal accepts the applicant’s evidence that she resigned from Curry Khazana Pty Ltd on 6 April 2017 after being advised by the Department that the employer’s approval as a sponsor had been cancelled on 27 February 2017. It further accepts that, until she received the NOICC from the Department on 4 April 2017, she was unaware of the sponsorship cancellation. The Tribunal further accepts that, despite the delegate’s finding that Curry Khazan Pty Ltd was deregistered on 24 January 2016, the applicant was not made aware of this by the Department or her employer and only found this out when she received the Department’s refusal decision. The Tribunal notes her evidence that there was no change to the employer’s operations to her knowledge after 24 January 2016 and that it continued to operate as normal after this date, and that she continued her usual work there until her resignation on 6 April 2017. The Tribunal is unable to ascertain whether the company was trading unlawfully after 24 January 2016 from the limited information available, but it accepts that even if it was, this state of affairs was not known to the applicant and she had no part in the events that led to its deregistration by ASIC and the cancellation of its sponsorship approval by the Department.

The applicant advised that she knew condition 8107 meant she had 90 days to find another employer but maintained that she believed that the 90 day period started from when she resigned on 6 April 2017. She then did in fact secure employment as a Cook with Uncle Bart but this employer has been ultimately unwilling to nominate her for another visa (either temporary or permanent).
The Tribunal has considered the applicant’s account carefully. It records that it found the applicant to be credible and sincere in her evidence at hearing, which was in turn consistent with her written responses to the Department’s NOICC.
The Tribunal considers that the circumstances in which the breach arose did not involve deliberate or significant breaches by the applicant, and that she tried to secure a new nomination by an Australian employer in her original role of Cook and remains employed in this role in Melbourne (albeit without that employer being willing to lodge a nomination of her for another visa). These factors weigh in her favour.
Past and present conduct by the applicant towards the Department
The Tribunal accepts that the applicant has been cooperative with the Department. It acknowledges that she did not inform the Department when her employer was deregistered by ASIC but it accepts that she was unware of this and therefore could not have done so at the time it apparently occurred, in January 2016, and this knowledge was beyond her control.
If breach relates to breach of r.2.43(1)(la)…
This factor is not applicable in the present case.
Whether there are mandatory legal consequences, such as whether cancellation would result in the applicant becoming unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention
While the Tribunal accepts that cancellation of a visa would normally result in a person becoming unlawful and subject to detention, the Tribunal is satisfied that the applicant has applied for, and been granted, bridging visas which are valid until the outcome of the Tribunal review. Accordingly, it does not accept that indefinite detention is a possible consequence of cancellation, as a bridging visa would continue to be available to the applicant if she needed this to make arrangements to depart, or to lodge a judicial review application, in the event that the Tribunal review is unsuccessful.
The Tribunal accepts that, if the visa cancellation is affirmed, the applicant will be subject to s.48 of the Act, which significantly limits what future onshore applications she may be able to make (though in the Tribunal’s view, it does not affect her ability to apply for a visa offshore in future).
The Tribunal notes that the applicant’s agent raised the possibility that the applicant may be subject to Public Interest Criterion 4014 (PIC 4014) of Schedule 4 to the Regulations due to the cancellation of her subclass 457 visa.
The Tribunal further notes that the applicant currently holds a bridging visa E, and PIC 4014 of Schedule 4 potentially applies, as it is stated that the same 3 year bar applies if a person is affected by a risk factor in subclause (4), which includes departing Australia as the holder of a bridging visa E. However, it appears that subclause (5) provides some exceptions to this; namely where the bridging visa held by the person at the time of their departure was granted within 28 days after a substantive visa they held ceased to be in effect or while the person held another bridging visa granted while they held a substantive visa or within 28 days after a substantive visa held by the person ceased to be in effect. The Department's records indicate that the applicant was granted a bridging visa E on 8 June 2017, within 28 days of her subclass 457 visa being cancelled on 2 June 2017. It therefore appears that she would come within PIC 4020(5) such that she would not face a 3 year ban if required to apply offshore for another visa.
Whether there would be consequential cancellations pursuant to s.140 of the Act
The Tribunal is satisfied that the applicant has no family members who would be subject to consequential cancellation of her subclass 457 visas pursuant to s.140 of the Act if the decision to cancel the applicant’s subclass 457 visa is affirmed.
Whether any international obligations would be breached as a result of the cancellation
The applicant did not raise any international obligations that she believed would be breached as the result of the cancellation and there is nothing before the Tribunal to indicate that cancellation would result in Australia breaching any of its international obligations.
Any other relevant matter
The Tribunal considers that a stay in Australia on a temporary visa such as the 457 visa is, as the length of visa grant suggests, a temporary stay, which by its nature will come to an end. The natural consequence of a temporary stay is a departure from Australia, which is something which should be anticipated by the holder of a temporary visa.
The Tribunal acknowledges that the applicant’s subclass 457 visa would expire on 22 October 2019 (had it not been cancelled earlier) – a date that is approximately 12 months away as at the time of the Tribunal’s decision. Thus, there is some value to setting aside the Department’s cancellation, and the applicant requested that the Tribunal do so, in order to enable her to find a new employer and therefore be able to make a new visa application (for either temporary or permanent residence) onshore as the holder of a substantive visa.
As discussed above, the Tribunal has some sympathy for the applicant’s circumstances, in that it accepts she has established a life here over approximately 9 years for herself, that the circumstances that led to the cancellation of her visa were not within her control, that she did has found new employment in her profession (but not a sponsorship/nomination) and continues to work as a Cook in Australia. While the Tribunal acknowledges the fact that her current employer wishes to retain the applicant’s services, there is no indication that it is in a position to nominate or sponsor her, or that she has secured a nomination by a new employer who is prepared to do so.
As previously stated, the Tribunal considers that a stay in Australia on a temporary visa such as the 457 visa is, as the length of visa grant suggests, a temporary stay, which by its nature will come to an end. The natural consequence of a temporary stay is a departure from Australia, which is something which should be anticipated by the holder of a temporary visa.
In this case the applicant has had a fairly long duration in which to prepare for departure if that is the ultimate result. Alternatively, the applicant has had ample time in which to seek an alternative lawful basis of further stay in Australia. While he has obtained ongoing employment as a Cook since 7 July 2017, this is not the subject of an approved new nomination by an approved sponsor and there is no indication that it will be. Nor is there any current offer of full time employment as a Cook by another Australian employer, nor any obvious prospect that there will be in future. While the Tribunal acknowledges that reinstating the applicant’s subclass 457 visa would allow her to remain here until 22 October 2019, the Tribunal must weigh against this the fact that this is not consistent with the purpose of the subclass 457 visa program. That is, the subclass 457 visa is intrinsically linked to fulfilling the needs of Australian employers through approved nominated positions, and is not intended to provide ongoing residence to people who aspire to secure employment and/or temporary or permanent residence in future.
As also noted, the Tribunal has some sympathy for the applicant’s circumstances, in that it accepts she has established a life here over approximately 9 years and has been able to contribute to her parents’ financial support through her employment here. However, the Tribunal gives significant weight in this case to the purpose of the subclass 457 visa which the applicant seeks to have reinstated. As noted above, this visa is intended only to fill shortages in the Australian labour market, for which approved sponsorship and nomination by an Australian employer is required. It is not intended to operate as a de facto residence visa in the absence of formal nomination or sponsorship being approved.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Alison Mercer
Member

[2018] AATA 5260

16 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies