Kaur (Migration)

Kaur (Migration) [2018] AATA 4539 (5 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Rupinder Kaur
CASE NUMBER:  1700850
DIBP REFERENCE(S):  BCC2016/772663
MEMBER:Alison Mercer
DATE:5 October 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Statement made on 05 October 2018 at 4:48pm

CATCHWORDS
MIGRATION – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary (Skilled)) – ceased employment – original employer’s business sold – sought new sponsorship – period of non-compliance – best interest of the child – child grew up in Australia – difficulty of replacing applicant – subject of an approved nomination – date of visa expiry – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8 Condition 8107

CASES
MIAC v SZQRB [2013] FCAFC 33
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 12 January 2017 made by a delegate of the Minister for Immigration 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)(b) as she found that the applicant had not complied with a condition of her visa (namely, condition 8107, which requires that the visa holder must work only in the occupation in the most recently approved nomination, and only for the employer who most recently nominated the applicant, and that if the visa holder ceases that employment, the period during which they ceased employment must not exceed 90 consecutive days). The delegate found that the applicant was most recently nominated as a Cook by Happy Point Investment Pty Ltd, but that employer notified the Department that the applicant had ceased employment there on 18 November 2015 and thus it appeared that she had ceased her approved employment for more than 90 days as at the time of the delegate’s decision. The delegate found a ground for cancellation was made out and further found that the grounds in favour of cancellation outweighed those against.
The Tribunal received a review application from the applicant on 17 January 2017. It was accompanied by a copy of the delegate’s decision and an authority by which she appointed a registered migration agent as her representative and authorised recipient for correspondence.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant’s agent provided written submissions on 26 March 2018 and 10 April 2018.
The applicant appeared before the Tribunal on 17 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, Mr Phulpreet Singh, and the applicant’s current employer, Mr Christopher Limon of Wahring’s Restaurant Pty Ltd ATF Wahring’s Restaurant Unit Trust. The applicant’s agent made oral submissions. Following the hearing, the Tribunal agreed to defer its decision to await the outcome of pending standard business sponsor approval and nomination applications by the applicant’s current employer.
On 12 July 2018, the Tribunal received a copy of the Department’s approval of Wahring’s Restaurant Pty Ltd ATF Wahring’s Restaurant Unit Trust as a standard business sponsor, valid from 12 July 2018 to 12 July 2023.
On 2 October 2018, the Tribunal received a copy of the Department’s approval of the above employer’s nomination of the applicant for the position of Cook [CHECK], dated 18 September 2018.
For the following reasons, the Tribunal has concluded that the the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
Departmental history
Visa grant
The Department’s records indicate that the applicant was granted a subclass 457 visa on 13 July 2015, valid until 13 July 2019. It was based on an approved nomination of her for the occupation of Cook made by an approved standard business sponsor, Happy Point Investment Pty Ltd.
Notice of Intention to Consider Cancellation
On 14 December 2016, the Department wrote to the applicant to advise her that there appeared to be a ground for cancellation of her visa under s.116(1)(b) of the Act; namely, that it appeared that she had breached condition 8107(3) of her visa. The letter stated that the standard business sponsor who most recently nominated the applicant was Happy Point Investment Pty Ltd, whose nomination was approved on 26 March 2015. The letter further stated that the Department had received written notification from Happy Point Investment Pty Ltd that the applicant ceased employment there effectively 18 November 2015. The applicant was advised that this indicated that she was in breach of condition 8107(3)(b) of her visa because she appeared to have ceased employment with her sponsor for a period exceeding 90 consecutive days. If this was correct, then this was grounds for cancellation of the applicant’s visa pursuant to s.116(1)(b). The applicant was invited to respond within 5 working days, including the matters to be taken into account by the delegate in considering whether to cancel the visa or not, such as:
·the purpose of the applicant’s travel to and stay in Australia;
·the extent of her compliance with any conditions subject to which her visa was granted;
·the degree of hardship that might be caused to her and/or any family members if her visa was cancelled;
·her past and present behaviour towards the Department;
·the legal consequences of a cancellation decision; and
·any other matters.
Applicant’s response
The applicant appointed a registered migration agent, Mr Rick Gunn, to be her representative and authorised recipient for correspondence. The applicant’s agent provided a written response dated 11 January 2017, in which he made the following points (in summary):
·the applicant was currently in the process of being nominated by a new employer, Two Leos Pty Ltd, under the subclass 457 visa program. She was currently in Australia with her husband and young son, who were dependents on her current subclass 457 visa;
·the applicant instructed that she did work for Happy Point Investment Pty Ltd from the approval of her subclass 457 visa on 13 July 2015, but her employment ceased when the owners of that business sold it, and the new owner were not prepared to continue with the applicant’s sponsorship;
·the applicant therefore lost her job through no fault of her own and was left vulnerable to circumstances resulting in her non-compliance with condition 8107 of her visa;
·since ceasing employment with her original employer, the applicant had attempted to secure new sponsorship from other businesses within 90 days. She found employment with Two Leos Pty Ltd (trading as Wallder’s Café in Kilmore, Victoria). This employer lodged an application for approval as a standard business sponsor, and a nomination of the applicant as a Cook, with the Department on 31 March 2016;
·Two Leos Pty Ltd was approved as a standard business sponsor on 18 July 2016 but its nomination was refused on 31 August 2016. The business had lodged a second nomination with the Department on 16 September 2016 and had addressed the points raised by the original delegate who found insufficient evidence had been provided to indicate that it was a genuine position. It was noted that this nomination was now under active consideration with a decision anticipated shortly;
·the applicant conceded that she ceased employment with her original employer for more than 90 days but had sought, and was actively seeking, a new sponsorship and nomination for her occupation of Cook, and a decision on that new employer’s nomination was pending. It was submitted that it would be unfair to cancel her visa while the outcome of this nomination was unknown;
·other factors in favour of exercising the discretion not to cancel the applicant’s visa included that the purpose of her travel to, and stay in, Australia, was to seek employment and meet shortages in the Australian labour market; in particular, the hospitality industry, which had documented shortages, particularly in regional areas such as Kilmore. The applicant’s current nominating employer had experienced recent resignations and currently did not have a full-time cook. It currently provided breakfast and lunch with a part time cook (2 days per week) and a casual cook;
·the applicant instructed that she had not breached any other of her visa conditions, and reiterated that the breach of condition 8107 was outside her control. She and her dependants would suffer significant hardship if their visas were cancelled and they had to depart Australia. The family had a long history in Australia and the applicant’s son was born here in January 2011. They were well established in the Australian community and the applicant’s son was enrolled in Grade 1 at a local primary school, where he was progressing well. It would be extremely disruptive to him to be removed from the Australian education system, especially since he had never been at school in India; and
·the applicant had never had any previous adverse dealings with the Department and this should count in her favour, especially as cancellation of her visa might expose her and her dependants to a 3 year bar pursuant to the operation of Public Interest Criterion 4014 (PIC 4014). It was noted that the imposition of a bar would depend on the applicant’s visa history subsequent to any cancellation by the Department but it was nevertheless a potential legal consequence affecting the applicant and her dependants. It was further submitted that this was a disproportionate consequence for someone in the applicant’s circumstances.
The submission was accompanied by supporting documents, including:
·evidence of the third named applicant’s kindergarten and primary school educational progress; and
·email from the Department to the agent dated 20 December 2016 acknowledging receipt of request for priority processing for the nomination of the applicant currently pending with the Department.
Department decision
As noted above, the delegate made a decision to cancel the applicant’s visa on 12 January 2017. In doing so, the delegate found that the ground for cancellation was made out, as it was not disputed that the applicant ceased work for her original nominating employer on 18 November 2015, and had not yet been the subject of a new approved nomination by another employer. The delegate was therefore satisfied that she had ceased work in the position in which she was originally nominated and with her original sponsoring employer for more than 90 consecutive days, in breach of condition 8107(3)(b). The delegate found that a ground for cancellation was established under s.116(1)(b) of the Act.
The delegate then considered whether or not to exercise the discretion to cancel the applicant’s visa. In deciding to cancel it, the delegate took into account the following factors:
·as the applicant’s original employment was terminated on 18 November 2015, it appeared that she was no longer in Australia in accordance with the original purpose of her visa;
·although she was the subject of a new nomination by Two Leos Pty Ltd on 31 March 2016, this was refused by the Department on 31 August 2016 and a further nomination by the same employer was not yet decided. The subclass 457 visa allowed holders a period of 90 consecutive days after ceasing employment to resolve the matter by securing a new nomination by a sponsor, but the applicant in this case had not done so within the 90 day period allowed. Therefore, the delegate did not consider the purpose of her travel to, or stay in, Australia provided a reason not to cancel her visa;
·it was acknowledged that the applicant had not breached any other conditions, but it was also noted that more than 13 months had elapsed since the applicant ceased her original employment and as such, her non-compliance with the 90 day period set out in condition 8107(3)(b) was considered significant;
·the United Nations Convention of the Rights of the Child (CROC) was considered in relation to the interests of the applicant’s primary-school aged son, but (due to the consequential cancellation provisions) it was accepted that he would not be separated from his parents and they would return to India together. The delegate noted that the applicant’s husband and son held their subclass 457 visas solely has dependants and did not give this factor significant weight. While she accepted that cancellation would result in a level of hardship for the applicant and her family should they depart Australia, she did not consider that they would be significantly disadvantaged by this or that this provided a strong reason not to cancel the visa;
·the delegate further noted that the applicant’s would be eligible to apply for a bridging visa E if her visa was cancelled, which would allow her to remain lawfully in Australia to finalise her affairs. However, she acknowledged that if the visa were cancelled, the applicant would become an unlawful non-citizen and might be liable to detention under s.189 of the Act and removal under s.198 if she did not voluntarily depart, and that she would also be subject to s.48 of the Act, which limited her options for applying for a further visa in Australia. The delegate gave some weight to these factors;
·it was acknowledged that the applicant was not responsible for the cessation of her employment with her original sponsoring employer, and had made efforts to find another sponsoring employer to nominate her. The delegate gave this some weight but noted that the nominations of her by Two Leos Pty Ltd were both made more than 90 days after she ceased her original employment, and that she had effectively been between the 2 employers for more than 13 months; and
·as such, and after considering all of the applicant’s claims in their entirety (including the fact that there was no evidence that cancelling the visa would breach any of Australia’s treaty obligations, including the CROC), the delegate decided the reasons not to cancel the visa did not outweigh those in favour of cancellation.
Tribunal history
Tribunal review application
The applicant lodged an application for review of the above decision with the Tribunal on 17 January 2017. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Rick Gunn, to be her representative and authorised recipient for correspondence.
On 15 March 2018, the Tribunal wrote to the applicant via her agent to invite her to attend a hearing on 17 April 2018. They were requested to provide any written submissions and/or documents in support of the case to the Tribunal 1 week prior to the hearing.
Applicant’s submissions of 26 March 2018
The applicant’s agent requested that the hearing be postponed to a later date on the following grounds:
·the 2 nominations of the applicant by Two Leos Pty Ltd were refused on the grounds that the Department did not accept ‘self-sponsorship.’ The applicant had a proprietary interest in Two Leos Pty Ltd, which was declared to the Department; however, the change in the Department’s policy on this issue meant that the nominations were refused on this ground even though the applicant was genuinely working in the position, and the position was genuinely needed in the business;
·it was noted that the second nomination was refused on 17 March 2017, after the applicant’s visa had already been cancelled on 12 January 2017;
·the applicant had had work rights attached to her bridging visa E since 2 March 2017, and was currently working for a new employer, Wahring’s Restaurant Pty Ltd ATF Wahring’s Restaurant Unit Trust (‘Wahring’s’) in her nominated occupation of Cook;
·on 16 June 2017, a subclass 457 nomination of the applicant as a Cook was lodged by Wahring’s but this was refused on 18 October 2017, due to the expiry of Wahring’s approval as a standard business sponsor, which the agent’s office did not have instructions to renew. However, a new SBS application was lodged on 20 October 2017, which was still pending;
·a new nomination was lodged on 14 December 2017, and this too was still pending with the Department;
·the applicant’s cancelled subclass 457 visa would otherwise have been valid until 13 July 2019;
·central to the cancellation review was the issue of whether the applicant was the subject of an approved nomination by an approved standard business sponsor, and it was submitted that the Department acted harshly in cancelling the applicant’s visa when there was at that time a pending nomination with the Department;
·the Department’s current processing times for subclass 457 visas were between 5 and 11 months, according to information on its website, it was requested that the hearing be postponed due to the unfortunate situation with the expired SBS status of Wahring’s and the lengthy anticipated processing time for a new one and the nomination, neither of which were within the applicant’s control;
·alternatively, if the hearing proceeded as scheduled, the agent foreshadowed a request that the Tribunal defer its decision until the outcome of the sponsorship and nomination applications currently before the Department was known;
·it was acknowledged that the fact that there was no approved nomination made setting aside the cancellation problematic for the Tribunal, notwithstanding the other strong reasons not to cancel the visa (to be addressed in a separate submission);
·Wahring’s had previously successfully nominated Cooks for subclass 457 visas as an approved standard business sponsor, and therefore it should be assumed that both its SBS and nomination applications had a genuine prospect of success; and
·the applicant and the agent undertook to keep the Tribunal updated as to the status of both the above applications.
On 27 March 2018, the Tribunal wrote to the applicant via her agent to advise that the Presiding Member declined to reschedule the hearing, but would give consideration to any request to defer making a decision for a period after the hearing.
Applicant’s submissions of 10 April 2018
The Tribunal received a new authority from the applicant, appointing a registered migration agent, Mr Dushan Nikolic, as her representative and authorised recipient for correspondence on the above date. The agent provided a further submission to the Tribunal on the same date, in which he made the following points (in summary):
·after obtaining work rights with her bridging visa E on 2 March 2017, the applicant secured employment as a Cook with Wahring’s and a nomination was lodged with the Department by his business on 16 June 2017. However, it was refused on 18 October 2017 as the business’ SBS status had expired;
·a new SBS application was lodged by Wahring’s on 20 October 2017 and a new nomination of the applicant was lodged on 14 December 2017, and both applications remained pending with the Department;
·the applicant conceded that she was in breach of condition 8107 as she had not worked for her originally approved sponsoring employer for more than 90 days and therefore it was accepted that a ground for cancellation existed;
·however, it was submitted that her visa should not be cancelled based on the following discretionary factors;
·the purpose of the applicant’s travel to, and stay in, Australia was to seek employment and fill shortages in the Australian labour market, in particular the hospitality industry;
·as was explained in the SBS and nomination applications lodged by Wahring’s, that business required the applicant as her experience in a commercial kitchen and exposure to the preparation and creation of a variety of dishes was vital to the business’ success. Of the 4 Cooks employed there, the applicant was the only 1 employed on a full-time basis. The employer relied upon her vast experience and leadership as the key to expanding the business;
·the applicant stressed that she had not breached any other visa conditions, and that her breach of condition 8107 was beyond her control, since which time she had actively been trying to remedy the situation. She was now employed by a sponsor who had previously been an approved SBS, had an SBS application pending and had also nominated the applicant. Decisions were expected soon from the Department on both these applications;
·at all relevant times, the applicant had been a willing member of the Australian workforce but circumstances out of her control had prevented her from continuing to do so since her previous sponsorship ended;
·the applicant’s husband and son, as well as the applicant, would suffer significant hardship if they were forced to depart Australia due to the cancellation not being set aside. The applicant’s husband and son’s visas had been automatically cancelled as a result of the cancellation of the applicant’s visa, pursuant to s.140 of the Act;
·the family were well integrated into the Australian community, and the applicant’s son was born here in January 2011 and was now at primary school, where he was progressing well. He was currently in Grade 2 and would suffer significant disadvantage if his Australian schooling was disrupted as he had never been in the Indian education system;
·the applicant had never had any other adverse dealings with the Department and had always acted with integrity, and this should be given weight in favour of not cancelling her visa;
·a decision not to set aside the cancellation would likely expose the applicant and her dependant visa holders to the 3 year bar pursuant to PIC 4014, as they would depart Australia as the holders of bridging visa Es, and it was submitted that this was a disproportionate consequence for someone in the applicant’s circumstances;
·in the event that the Tribunal could not make a favourable decision on the available evidence alone, the Tribunal was requested to defer its decision to enable the Department to make decisions on the pending SBS and nomination applications made by Wahring’s.
Hearing of 17 April 2018

The applicant said that she originally came to Australia to do a Masters of IT and did 1 semester of this course before changing to a Certificate course in Baking and Food Processing. She ultimately completed a Certificate III and IV and a Diploma of Hospitality, the latter in or about March 2014. The applicant said that her husband drove taxis part time while she was studying.
On completion of her study, she found work in the field and got the chance to apply for a subclass 457 visa on the basis of a nomination by Happy Days Diner as a Café or Restaurant Manager, but that employer’s nomination was refused by the Department. The applicant said that she then applied for another subclass 457 visa with the same employer, this time as a Cook. She worked in the Diner at High Point Shopping Centre fulltime as a Cook from about mid-July 2015 to mid-October 2015 then the owner sold the business to new people. The new owners shut down the business for a period to renovate it, so were not in a position to keep her on. Her last day was 13 October 2015. She told her migration agent, who advised her that she needed to find a new employer as soon as possible. She therefore sent her CV out to as many businesses as she could. She focussed on rural areas, particularly around Seymour, Kilmore and Nagambie, as she and her husband liked the countryside. Her husband had also had a part time job as a Cook at the Caltex Roadhouse on the south side of Seymour, so they knew that area.
The applicant told the Tribunal that she did find a number of positions on the Gumtree and Seek websites but she was often asked to do unpaid trials and/or the employers became wary of her unresolved visa status. Her husband bought into an existing café business in Seymour around this time; this was Wallder’s Café in Kilmore. One of the 2 original owners sold his interest to the applicant’s husband’s company, Two Leos Pty Ltd. The remaining owner was called Wayne, and he had knee problems so wanted a new partner. This business then nominated the applicant as a Cook but the Department twice refused its nomination of her because it changed its policies to look unfavourably on ‘self-sponsorships.’
The applicant confirmed that although her original subclass 457 visa was cancelled in February 2017 and she was granted a bridging visa E, she obtained permission to work with this bridging visa in March 2017. She was therefore able to work at Wallder’s until the nominations were refused. By this time, she had secured an employment trial as a Cook with Wahring’s Restaurant in Nagambie. This restaurant was previously attached to a Caltex service station/roadhouse but its owner, Mr Limon, sold off the service station part of the business and retained the restaurant in its own right. The applicant said that she went there for a trial on 27 March 207 and was offered a full-time position in May 2017 by Mr Limon. She has been working there on a full-time basis since then. The applicant estimated there were about 14 staff in total, some of whom were part-time. She was the only full-time Cook. Mr Limon himself was limited in his capacity to work within the restaurant due to health issues. His wife helped out in the business, and there were 2 to 3 other Cooks but they were employed on a part time and/or casual basis. The applicant said that she did the morning to lunch shift (6am to 2pm) 5 days a week. The restaurant itself was open from 6am to between 8pm and 10pm, 7 days a week. It offered dining in but also provided take away food. The dine in menu was a la carte.
The applicant said that she and her family rent and live in Kilmore and she commutes to work from there. Her husband sold his interest in Wallder’s Café but the new owners kept him on as a barista. He also worked Saturday nights at the Caltex Roadhouse and drove the school bus for Assumption College in Seymour. They were both well known and settled in the area. Their son Jai was unaware of their visa situation. He was born in Australia, and was 6 or 7 months old when the family moved from Clayton to Seymour due to an RSMS nomination of the applicant as a Pastry Cook (which was ultimately unsuccessful). Jai had therefore done all of his child care in Seymour and all of his primary schooling to date at St Patrick’s in Kilmore. He was also in the local Cub group and Little Athletics. The applicant said that Jai has better opportunities in Australia than he would in India. They have taken him back to India once, to see family, when he was about 1, but he has essentially grown up in Australia. He did come back with them in 2014 to a family wedding and was amazed at how different it was.
The applicant said that her parents remain in India, where they have a sawmill business. She had 3 adult siblings. Her older sister was killed in a road accident in 2003 and her other sister and her brother are both now married. They are both living with their families in Canada. The applicant said that the death of her elder sister in 2003 was traumatic for the family and as a result, she converted to Christianity. In relation to her husband’s family, his mother died in April 2016, but he still had his father, brother and sister in India. The applicant said that she has cousins in Perth but did not see them very often. Her husband had no family in Australia. He previously ran a business in Thailand and had not worked in India for many years. His family was not well off, so it would be difficult for them if they had to return to India, as she would be expected to live with them.
The applicant said that her employers were very happy with her work, as were her husband’s various employers. They were well settled and wanted to contribute more to the community but their uncertain status made this difficult.
The applicant said that she accepted that she ceased working for her original sponsoring employer but emphasised that this was not through choice but because they sold the business, which was out of her control. She acknowledged that the subclass 457 visa was a temporary visa but noted that if it were reinstated, she would have more options as well as being able to have some certainty.
The Tribunal then took evidence from Mr Christopher Limon, the applicant’s current employer at Wahring’s Restaurant. He confirmed that he has had a hip replacement and more recently, an ankle and foot reconstruction, which affected his mobility and his ability to work in the restaurant. He currently wears a moonboot and uses a cane. Mr Limon told the Tribunal that the business had employed 4 to 5 subclass 457 visa holders previously and the business had been approved previously as a standard business sponsor for this purpose. That approval had currently lapsed because he had forgotten to reapply for it. That was the only reason, and a new approval application had been lodged with the Department.
Mr Limon said that he could not remember who introduced the applicant to him as a potential employee but confirmed that she had now been working as a Cook in the business for about a year. She was a very valued employee. He confirmed there are about 9 to 10 full-time staff in the business with the remainder being casual/part timers. The applicant was a key member of the kitchen team. The restaurant was open 7 days per week and had 14 cooking shifts – the applicant did 5 of them and was very efficient. She fitted in well, and was well-liked and well-respected. Mr Limon noted that it was difficult to recruit and retain suitably skilled staff in regional Victoria. This is why the business had previously employed subclass 457 visa holders as Cooks.
Mr Limon confirmed that the restaurant had been operating since December 2006 on its own, but had previously been part of the Caltex Roadhouse, but he sold that part of the business off in mid-2015 to focus on the restaurant. He said that he worked in the restaurant in the mornings (with the applicant) but then would go to his home office and do the paperwork for the business, which was considerable. He and his wife were not totally ‘hands off’ but they had reduced their involvement out of necessity over time. He said that the applicant was the best subclass 457 employee the business had had in some time and they very much wished to retain her.
In response to the Tribunal’s query, Mr Limon said that if the applicant were not able to continue with them, they would have to try to replace her. He said that he could not say that the business would have to close, but it would be difficult to replace the applicant. He said that Nagambie is a fair distance from the nearest major towns of Shepparton and Seymour and therefore the labour pool in Nagambie itself is not large, especially as there was competition for experienced Cooks and hospitality workers from the Mitchellton Winery.
Mr Limon confirmed that the business lodged a new standard business sponsorship and nomination application with the Department in October 2016. They were asked to provide additional information in April 2017, and did so. They were confident that both applications would be successful in due course, given similar applications had been approved previously.
The Tribunal then took evidence from the applicant’s husband, Mr Phulpreet Singh. He confirmed his wife’s evidence about their respective families and their work and visa history in Australia to date. He told the Tribunal that he left India in 1999 and had worked in Thailand for some years, before coming to Australia with his wife. They both want to give their son a better life here and have worked hard to do so. It would be very hard for them to have to re-establish themselves in India, and they would have little assistance from his family as his father is a pensioner after having retired from the Indian Army. Mr Singh acknowledged that even if reinstated, the subclass 457 visa was only a temporary visa, but emphasised it would give them certainty and possibly other options. At the moment, they are in a kind of legal limbo. Mr Singh said that he and his wife were hard workers and tried their best to contribute to their employers and their community more broadly.
The applicant’s agent submitted that although the applicant may have technically breached condition 8107, it was not her doing as she did not have control over her original employer’s decision to sell the business. He further noted that there might be permanent residence options for the applicant and her family if her subclass 457 visa were reinstated and possibly even under the new subclass 482 visa category (which replaced the subclass 457 visa program on 18 March 2018). He acknowledged that the applicants might receive some emotional and some financial support from family in India if they had to return there, but noted that it would still be a significant disruption to them as the applicant had not lived there for 10 years and her husband had not lived there for close to 20 years. He further noted that any offshore visa application they made to return on a temporary visa might be affected by Public Interest Criterion 4014, if they had to obtain another bridging visa to make arrangements to leave Australia in the event of an unsuccessful review application. If that were the case, he understood that they would be subject to a 3 year bar on the grant of a further visa, unless this was waived.
Post hearing submissions
As noted above, the Tribunal received a copy of the Department’s approval of Wahring’s Restaurant Pty Ltd ATF Wahring’s Restaurant Unit Trust as a standard business sponsor, valid from 12 July 2018 to 12 July 2023. On 2 October 2018, the Tribunal received a copy of the Department’s approval of the above employer’s nomination of the applicant for the position of Cook dated 18 September 2018.
LEGAL CONSIDERATIONS, FINDINGS AND DECISION
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Does the ground for cancellation exist?
s.116(1)(b) - non-compliance with conditions
A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 attached to the applicant’s visa. This condition require provides as follows [Tribunal’s emphasis]:
[8107] (1) If the visa is not a visa mentioned in subclause (3) or (4), and was granted to enable the holder to be employed in Australia, the holder must not:
(a)      cease to be employed by the employer in relation to which the visa was granted; or
(b) work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or
(c) engage in work for another person or on the holder’s own account while undertaking the employment in relation to which the visa was granted.
[8107] (2) If the visa is not a visa mentioned in subclause (3) or (4), and subclause (1) does not apply, the holder must not:
(a) cease to undertake the activity in relation to which the visa was granted; or
(b) engage in an activity inconsistent with the activity in relation to which the visa was granted; or
(c) engage in work for another person or on the holder’s own account inconsistent with the activity in relation to which the visa was granted.
[8107] (3) If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):
(a) the holder:
(i) must work only in the occupation listed in the most recently approved nomination for the holder; and
(ii) unless the circumstances in subclause (3A) apply:
(A) must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or
(B) if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor or an associated entity of the sponsor; or
[(C) amended by MA(ROP)R 2014 with effect on and from 22/03/2014 - transitional/application see Sch 13 2801(1) and 2801(2) - LEGEND note]
(C)      if the sponsor is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor; and
(aa) the holder must commence that work within 90 days after the holder’s arrival in Australia; and
(b) if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days; and
(c) if the holder is required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, in the location where the holder’s position is situated—the holder must:
(i)      hold the licence, registration or membership; and
(ii) comply with each condition or requirement to which the licence, registration or membership is subject.
[8107] (3A) For subparagraph (3)(a)(ii), the circumstances are that:
(a) if the nomination was made before 1 July 2010 — the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(d)(ii) or (iii); or
(aa) if the nomination is made on or after 1 July 2010 — the holder’s occupation is specified in an instrument in writing for subparagraph 2.72(10)(e)(ii) or (iii); or
(b) the holder is continuing to work for the sponsor, or the associated entity of the sponsor, for the purpose of fulfilling a requirement under a law relating to industrial relations and relating to the giving of notice.
[8107] (3B) If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(8):
(a) the holder must work only in the occupation or position in relation to which the visa was granted; and
(b) if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days.
[8107] (4) If the visa is:
(a) a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or
(b) a Subclass 402 (Training and Research) visa; or
(ba) a Subclass 420 (Temporary Work (Entertainment)) visa;
the holder must not:
(c) cease to engage in the most recently nominated occupation, program or activity in relation to which the holder is identified; or
(d) engage in work or an activity that is inconsistent with the most recently nominated occupation, program or activity in relation to which the holder is identified; or
(e) engage in work or an activity for an employer (within the meaning of subregulation 2.72A(8)) other than the employer identified in accordance with paragraph 2.72A(7)(a) in the most recent nomination in which the holder is identified…
The Department’s records indicate that the applicant was granted a subclass 457 visa on 13 July 2015 that was valid until 13 July 2019 and that was subject to (amongst others) condition 8017. The Tribunal is further satisfied that this visa was granted to her (and to her dependants, being her husband and son) on the basis that she was the subject of an approved nomination as a Cook by Happy Point Investment Pty Ltd, an approved standard business sponsor.
The applicant did not dispute that she ceased work for Happy Point Investment Pty Ltd on 23 October 2015, and that more than 90 consecutive days elapsed without her securing another approved nomination by an approved standard business sponsor.
From the available evidence in the Department’s records, the Tribunal is satisfied that Happy Point Investment Pty Ltd was the original approved standard business sponsor who successfully nominated the applicant as a Cook. It is further satisfied that, at the time of her visa cancellation, the applicant was not the subject of an approved nomination by an approved standard business sponsor (though applications for approval as a sponsor and of its nomination had been made by a new employer and have now been approved the Department).
Accordingly, the Tribunal finds that the applicant has breached condition 8107(3)(b), which constitutes a ground for cancellation pursuant to s.116(1)(b) of the Act.
As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.
Consideration of discretion
There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.
Purpose of the visa holder’s travel to and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia
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. However, despite a number of failed nominations by other potential employers, she is now the subject of an approved nomination in her originally nominated occupation of Cook by another employer, Wahring’s Restaurant Pty Ltd ATF Wahring’s Restaurant Unit Trust. That employer has been approved as a standard business sponsor.
The applicant has argued that she has compelling reasons to remain in Australia as she has employment with Wahring’s Restaurant Pty Ltd, who was happy with her work, and who had provided her with permanent, ongoing work, and who strongly supported her employment to assist their business. At hearing, these claims were strongly supported by Mr Limon, owner (with his wife) of the restaurant where the applicant is currently employed. He also emphasised to the Tribunal the difficulties of securing and retaining suitably skilled Cooks in regional Victoria, where his business is based.
The applicant has also argued that she and her family would struggle to re-establish themselves in India, and that they would be affected financially and emotionally if they had to leave, given the number of years they have lived in Australia (and in the applicant’s husband’s case, the number of years since he has lived in India, given his previous residence in Thailand). The Tribunal notes, however, that virtually all of the applicant’s family, and her husband’s family, are in India.
The Tribunal has considered the applicant’s evidence about her employment with Wahring’s Restaurant in regional Australia (Nagambie). The applicant has provided documentary evidence that she has full time employment in her original profession as a Cook with that employer, and that they regard her as a model employee. Moreover, this employer was approved as a standard business sponsor, and lodged a nomination of her which was approved on 18 September 2018.
Under these circumstances, the Tribunal considers this employment to be a strong favourable 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 2008 as a student and then a sponsored employee, and that the cessation of her employment with her original sponsor was not by her choice. It also acknowledges that she sought to find another sponsor and nominator after being made aware that her original employer had sold the business to new owners who intended to close it for a prolonged period in order to renovate it. The Tribunal accepts that the applicant ultimately secured new employment with Two Leos Pty Ltd (trading as Wallder’s Café in Kilmore) (though this did not succeed), and is now working for Wahring’s Restaurant Pty Ltd. 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 in and of itself 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. However, that has now occurred and the Tribunal considers that this is in line with the purpose of the subclass 457 visa program.
Extent of the applicant’s compliance with his visa conditions
There is no evidence before the Tribunal to suggest that the applicant has not complied with the conditions of her previous student or 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 and her family would suffer some hardship if they had to depart Australia and return to India as they would be going into an economically uncertain future and would be leaving their community and employment in Australia. The applicant and her husband expressed particular concern about the effect on their son Jaideep, who was born in Australia and had spent most of his life here, including commencing primary school.
The Tribunal accepts that the applicant and her family would suffer some financial, psychological and/or emotional hardship if they had to depart Australia, but does not consider that the degree of financial, psychological and emotional hardship that they would face would be insurmountable as they would returning to 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 and her family has experienced in Australia.
The Tribunal does consider that the applicant’s son might struggle to reintegrate into the Indian education system, and gives this factor some weight as a factor weighing against cancellation of the visa.
Circumstances in which the cancellation arose
The Tribunal accepts the applicant’s evidence that she was made effectively made redundant in October 2015 by her employer, Happy Point Investment Pty Ltd, due to the owner selling the business to a new owner.
The applicant conceded that she knew condition 8107 meant she had 90 days to find another employer and maintained that she made sustained efforts to do so. She noted that she genuinely worked for Two Leos Pty Ltd as a Cook but its nomination of her failed due to a change in Departmental policy about ‘self-sponsorship’ (as her husband was a director and co-owner of this business). She then secured her present employment with an unrelated company, Wahring’s Restaurant Pty Ltd, where she has been employed for over a year as a full-time Cook.
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 the evidence of Mr Limon, her current employer, in relation to her position there.
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 is now employed in this field in regional Australia. 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 and this weighs against cancellation of her visa.
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).
Whether there would be consequential cancellations pursuant to s.140 of the Act
The Tribunal is satisfied that the applicant’s husband and young son 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 specific 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.
Significantly, from the Tribunal’s point of view, the applicant’s subclass 457 visa would not expire until 13 July 2019 (had it not been cancelled earlier) – a date that is 10 months away as at the time of the Tribunal’s decision. Thus, the value of setting aside the Department’s cancellation is not redundant, since there is a visa of some duration to reinstate.
As discussed above, the Tribunal has sympathy for the applicant’s circumstances, in that it accepts she has established a life here over approximately 10 years for herself and her family, that the circumstances that led to the cancellation of her visa were not within her control, that she did try (and initially succeeded) in finding new employment and sponsorship/nomination in her originally nominated occupation, and that that employment is in regional Victoria. Moreover, the Tribunal acknowledges the fact that her current employer wishes to retain the applicant’s services, and has now successfully nominated her as an approved standard business sponsor, and that the occupation of Cook remains on the Department’s Short Term Skilled Occupation List.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Alison Mercer
Member

[2018] AATA 4539

5 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies