MONIKA (Migration)

[2018] AATA 80

MONIKA (Migration) [2018] AATA 80 (19 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Monika Monika
Mr Aman Aman

Master Nehum Jolly

CASE NUMBER:  1617588

DIBP REFERENCE(S):  BCC2016/1747003

MEMBER:Danica Buljan

DATE:19 January 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the first-named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

The Tribunal has no jurisdiction with respect to the second and third-named applicants.

Statement made on 19 January 2018 at 12:14pm

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Failed to provide requested information – Ceased employment with sponsoring employer – Absence of an approved or pending business nomination – Awareness of condition 8107

LEGISLATION
Migration Act 1958, ss 116, 119, 140, 353, 359, 359A, 359C, 360, 363
Migration Regulations 1994, Schedule 8 Condition 8107

CASES

ADA15 v Minister for Immigration and Border Protection [2016] FCCA 291
Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Chen v Minister for Immigration and Border Protection [2016] FCCA 2351
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767
Ghori v Minister for Immigration and Citizenship [2011] FCA 759
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (4 February 2014)
Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013)
Minister for Immigration and Multicultural Affairs v Sun (2005) 146 FCR 498
Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Paduano v Minister for Immigration & Multicultural & Indigenous Affairs & Migration Review Tribunal [2015] FCA 211
Pradhan v Minister for Immigration and Multicultural Affairs (1999) FCA 1240
Rani & Ors v Minister for Immigration and Multicultural Affairs   (1997) 80 FCR 379
Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492
Singh v Minister for Immigration and Border Protection [2014] FCCA 1403
Singh v Minister for Immigration and Border Protection [2017] FCAFC 67
SZLYD v Minister for Immigration and Citizenship [2008] FMCA 805
Tien & Ors v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80
Visnumolakala v Minister for Immigration [2006] FMCA 1209
Yang v Minister for Immigration and Citizenship [2010] FMCA 890
Zhao v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1235

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 October 2016 made by a delegate of the Minister for Immigration to cancel the first-named applicant’s Subclass 457 (Temporary Work (Skilled)) visa under section 116 of the Migration Act 1958 (‘the Act’).

2. The delegate cancelled the visa under subsection 116(1)(b) on the basis that the first-named applicant (‘the applicant’) had not complied with condition 8107 of her Subclass 457 visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction under section 348 of the Act, the only decision that is before it is the decision with respect to the applicant. The visas held by the second and third-named applicants were automatically cancelled as a consequence of that cancellation. This was not by a decision, but by force of the operation of subsection 140(1) of the Act, which made the cancellation of the second and third-named applicants’ visas self-executing upon the cancellation of the applicant’s visa.[1] As no decision was involved in the visa cancellation under subsection 140(1), the Tribunal has no jurisdiction with respect to the second and third-named applicants.

   [1]     See Rani & Ors v Minister for Immigration and Multicultural Affairs  (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80 at 96

4. The applicant lodged an application for review with the Tribunal on 24 October 2016, and she included a copy of the primary decision record with this application.[2] The Tribunal has before it the departmental file[3] relating to the applicant. It has also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.[4] The applicant was self-represented in relation to the review.

   [2]     AAT Case file 1617588 (T1), f.1-7

   [3]     D1 - Departmental file BCC2016/1747003, folio numbered 1-57

   [4]     T1 - AAT case file 1617588, folio number 1-95

5. The Tribunal has also dealt with the separate application for review (AAT Case file 1618152[5]) relating to the refusal of the business nomination application lodged by Makris Group Pty Ltd nominating the applicant for a position as a ‘Painting Trades Worker’ (ANZSCO[6] Code 332211).

   [5]     AAT Case file 1618152 (T2), folio numbered 1-46 & Departmental file  BCC2016/1661383 (D2), folio numbered 1-164

   [6]     ANZSCO: Australian and New Zealand Standard Classification of Occupations; Latest issue release 26 June 2013. See

   The First Combined Tribunal Invitation to Comment on or Respond to Information and to Provide Information

6. On 14 February 2017 the Tribunal sent its first invitation to the applicant under section 359A of the Act inviting her to comment on certain information before it. This information included departmental records relating to the applicant’s immigration history and the circumstances that led to the cancellation of her Subclass 457 visa.

7. In the same letter and under section 359(2) of the Act, the Tribunal also invited the applicant to provide information that would be relevant to the exercise of its discretion whether to cancel her Subclass 457 visa.

8. Copies of the relevant legislative provisions and condition 8107 were included with this letter to facilitate the applicant’s response.[7] The invitation also specifically stated that the Tribunal must receive the applicant’s comments / response and the requested information by 28 February 2017.

   [7]     T1, f.47-50

9. On 28 February 2017 the Tribunal received a statutory declaration of the same date from the applicant in response to its invitation. In addition, the applicant requested that the Tribunal exercise its discretion to adjourn the review under paragraph 363(1)(b) of the Act because her new sponsoring employer, Makris Group Pty Ltd, also had an application for review pending before the Tribunal.[8]

   [8]     T1, f.52-55

   The Second Combined Tribunal Invitation to Comment on or Respond to Information and to Provide Information

10. On 14 December 2017 the Tribunal affirmed the decision not to approve the business nomination application lodged by Makris Group Pty Ltd.

11. Accordingly, on 15 December 2017 the Tribunal sent the applicant an invitation under section 359A to comment on /respond to the fact that it had affirmed the related application for review in AAT Case file 1618152.

12. In the same letter and under section 359(2) of the Act, the Tribunal also invited the applicant to provide information that would be relevant to the exercise of its discretion whether to cancel her Subclass 457 visa.

13. The Tribunal letter specifically stated that the Tribunal must receive the applicant’s comments / response, and the requested information, or any request for an extension of time in which to do so, by 29 December 2017, or she would lose any entitlement she might otherwise have under the Act to appear before the Tribunal.[9]

    [9]     T1, f.56-58

14. In addition, on 15 December 2017 the Tribunal advised the applicant that it was unable to make a favourable decision on the basis of the material before it. As a result, the Tribunal invited the applicant to appear before it to give evidence and present arguments at a hearing scheduled for 10 January 2018.[10]   

    [10]    T1, f.59-64

15. On 22 December 2017 the applicant provided the Tribunal with a response to the hearing invitation that she would take part in the hearing scheduled for 10 January 2017.[11]

    [11]    T1, f.65-70

16. However, the applicant did not provide the Tribunal with the information it had requested under subsection 359(2) of the Act within the prescribed period. Nor did she request an extension of time for this purpose by 29 December 2017.

    The Applicant’s Loss of the Right to a Hearing

17. The Tribunal notes that its invitation under subsection 359(2) of the Act (dated 15 December 2017[12]) was sent to the last address for service provided by the applicant in connection with the application for review.[13] Indeed, the applicant responded to the hearing invitation that was emailed to her at the same email address and on the same date.

    [12]    T1, f.56-58

    [13]    T1, f.64 & 87

18. As the applicant has failed to provide the requested information before the time for giving it had passed, subsection 359C(1) applies and the Tribunal may make a decision on the review without taking any further action to obtain the information.

19. Further, as subsection 359C(1) applies to the applicant, subsection 360(3) states that she is not entitled to appear before the Tribunal. Under section 363A, the Tribunal does not have the power to permit a party to do something she is not entitled to do, unless a provision expressly provides otherwise. Section 360 does not provide otherwise.

20. In addition, the Courts have confirmed that where an applicant fails to respond to such a written invitation within the prescribed period, section 363A of the Act precludes the Tribunal from offering the applicant a hearing.[14]

    [14]    See Singh v Minister for Immigration and Border Protection [2014] FCCA 1403 [32]-[39]; Yang v Minister for Immigration and Citizenship [2010] FMCA 890 at [40]; Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333; Minister for Immigration and Multicultural Affairs v Sun (2005) 146 FCR 498

21. Notably in Singh v Minister for Immigration and Border Protection[15] the Federal Circuit Court held that a request by the applicant for an extension of time does not constitute a response to a request for information under subsection 359(2) of the Act.

    [15] [2014] FCCA 1403

22. Further, in Singh v Minister for Immigration and Border Protection[16] the Full Federal Court held that the operation of sections 359C, 360 and 363A has no temporal restriction. As such these provisions can take effect at any time before or after a hearing invitation has issued, and before a hearing takes place. As a result, even if the Tribunal has issued a hearing invitation to an applicant, if the applicant fails to provide the information requested by the Tribunal within the prescribed period, then section 363A of the Act is triggered and the Tribunal does not have power to permit the applicant to appear at a hearing.

    [16] [2017] FCAFC 67

23. Accordingly, as the applicant had failed to give the information requested under subsection 359(2) of the Act within the prescribed period, namely by 29 December 2017, the Tribunal wrote to the applicant on 8 January 2018 as follows:

    LOSS OF RIGHT TO HEARING

    I am writing in relation to the applications for review made by you in respect of decisions to cancel Subclass 457 (Temporary Work (Skilled)) visas.

    On 15 December 2017 we invited you to a hearing scheduled for 10 January 2018 because, as at that date you had an entitlement to appear before us to give evidence and present arguments in relation to your application for review. 

    However, on 15 December 2017 we also wrote to you under section 359A of the Migration Act 1958 (‘the Act’) inviting you to comment on, or respond to, certain information that we considered would, subject to your comments or response, be the reason or part of the reason for affirming the decision under review. In particular, we invited you to comment upon the details relating to the application for review lodged by your proposed employer, Makris Group Pty Ltd, including the fact that we had decided on 14 December 2017 to affirm the decision not to approve the nomination lodged by your proposed employer.

    In addition, on 15 December 2017 we also invited you under subsection 359(2) of the Act to provide information that would be relevant to the exercise of our discretion whether to cancel your Subclass 457 visa.

    Importantly, this letter stated that your comments or response and the requested information should be received by 29 December 2017. It also stated that if we did not receive your comments or response, or the requested information, within the period allowed or as extended, you would lose any entitlement you might otherwise have had under the Act to appear before us to give evidence and present arguments.

    Although you indicated via email on 22 December 2017 that you would take part in the hearing scheduled for 10 January 2018, you did not otherwise provide your comments or response and the requested information within the prescribed period, namely, by 29 December 2017. In addition, you did not request an extension of time for this purpose by 29 December 2017.

    Please note in Yang v Minister for Immigration and Citizenship[17] the Court held that where an applicant fails to provide the information specifically requested by us in an invitation under subsection 359(2) of the Act, then subsection 359C(1) of the Act applies. The Court also held that, where an applicant does not provide the information requested under subsection 359(2), we do not have any power to invite the applicant to a hearing because of the effect of section 363A of the Act.

    [17] [2010] FMCA 890

    In addition, in Singh v Minister for Immigration and Border Protection[18] the Federal Circuit Court held that a request by the applicant for an extension of time did not constitute a response to a request for information under subsection 359(2) of the Act.

    [18] [2014] FCCA 1403

    Accordingly, as you did not provide your comments or response and the requested information to us by 29 December 2017, you have lost any entitlement you might otherwise have to appear before us to give evidence and present arguments as at the date of this letter. 

    As a result, we are no longer able to offer you a hearing and the hearing scheduled for this Wednesday 10 January 2018 at 9:30 am has been cancelled.

    Although you have lost your right to a hearing, you remain entitled to provide any information you feel is relevant to your application for review up until we make our decision in this matter.

    We therefore invite you to provide written submissions and supporting material regarding this matter by 15 January 2018, after which we will proceed with the application for review based on the information before us.

    [Tribunal emphasis added in bold and underline]

24. On 14 January 2018 the applicant provided the Tribunal with a submission in which she advised that she had commenced employment with Sehaj Painting Services and that she was participating in the Department of Education and Training ‘Job Ready Program’. In support of these claims the applicant submitted copies of payslips issued to her by Sehaj Painting Services, a letter of support from this employer, journal entries for jobs completed by the applicant for this employer, and a copy of the provisional skills assessment issued to her by Trades Recognition Australia.[19]

    [19]    T1, f.73-86

25. In addition, the applicant advised that she had experienced difficulty contacting her former employer at Makris Group Pty Ltd and, therefore, she requested additional time in which to provide documents to the Tribunal in support of her application for review.[20]

    [20]    T1, f.86

26. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

27. Under section 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 subsection 116(1)(b). Section 116 of the Act is extracted in the attachment to this decision.

28. 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.

    The Applicant’s Immigration History and the Background to the Cancellation

29. As set out in the Tribunal section 359A invitation (dated 14 February 2017[21]), on 6 March 2015 the Department approved a nomination lodged by Robin Painting Services Pty Ltd (an approved standard business sponsor) for a ‘Painting Trades Worker’ (ANZSCO Code 332211) in the applicant’s favour, with a base annual salary of $54,080. This letter also noted that the applicant was granted her Subclass 457 visa on 19 June 2015 valid to 19 June 2019 and subject to conditions 8107 and 8501.

    [21]    T1, f.47-50

30. The applicant did not dispute these matters in her emailed response (dated 28 February 2017[22]), in which she advised that her new sponsor, Makris Group Pty Ltd, had lodged an application for review with the Tribunal (AAT Case file 1618152).

    [22]    T1, f.52-55

31. Accordingly, the Tribunal finds that the Department granted the applicant a Subclass 457 visa on 19 June 2015 that was originally valid until 19 June 2019 and that this was on the basis that she was sponsored by a standard business sponsor under subclause 457.223(4). It also finds that this visa was subject to mandatory conditions 8107 and 8501.

    Notification procedures

32. The Act sets out the procedure for cancelling visas.  Notice of the grounds on which cancellation is being considered must be given and the visa holder invited to show either, that the grounds do not exist, or that there are reasons why the visa should not be cancelled.[23]  The visa holder must also be given an opportunity to respond.  In addition, a visa may not be cancelled before the visa holder has been given a notice of cancellation that includes information relevant to the cancellation.

    [23] Section 119 of the Act

33. The onus of establishing the facts which may lead to cancellation rests with the Minister, or on review, with the Tribunal. Although the visa holder must be invited to show that the ground for cancellation does not exist, or if it does, that there is a reason why the visa should not be cancelled, this does not place an onus on the visa holder to rebut the possible ground of cancellation identified.[24]

    [24]    See Zhao v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1235 at [25] and [32]

34. In its section 359A invitation (dated 14 February 2017[25]) the Tribunal set out the details relating to the ‘Notice of Intention to Consider Cancellation’ (‘the notice’ / ‘the NOICC’) the Department had sent to the applicant on 23 May 2016.[26]

    [25]    T1, f.47-50

    [26]    D1, f.2-5

35. In particular, the Tribunal noted in its invitation that this notice stated that the Department had received written advice from Robin Painting Services Pty Ltd on 30 January 2016 that it had closed its business, and that the applicant had ceased her employment with this sponsor effective 30 January 2016.

36. In addition, the notice informed the applicant that her Subclass 457 visa might be cancelled under subsection 116(1)(b) of the Act because she may have breached the requirements of paragraph 8107(3)(b) of condition 8107. The notice also invited the applicant to comment on why her visa should not be cancelled, and she responded (through her then representative) to this invitation on 25 May 2016.[27]

    [27]    D1, f.19-25

1. The Tribunal observes that the applicant did not dispute these matters in the response she provided to the Tribunal on 28 February 2017.[28] 

   [28]    T1, f.52-55

2. Accordingly, the Tribunal finds that the applicant was given a NOICC (dated 23 May 2016) in relation to her Subclass 457 visa. It also finds that this notice set out the grounds of the alleged non-compliance in respect of condition 8107. In addition, the Tribunal finds that the response the applicant provided to the Department on 25 May 2016 indicated that she understood the nature of the alleged non-compliance.

3. In these circumstances, the Tribunal finds that the Department provided the applicant with sufficient information to adequately understand and, therefore, to respond to the notice of intention to consider cancellation, as required under the legislation.

   Does the Ground for Cancellation Exist?

4. Subsection 116(1) of the Act provides that “the Minister may cancel a visa” if he or she is satisfied of any of the grounds in subsection 116(1). The discretion to cancel in subsection 116(1) is fettered by subsection 116(3), which provides that the Minister must cancel a visa in certain prescribed circumstances, as set out in subregulation 2.43(2). In other words, subsection 116(3) removes the Tribunal’s discretion where there are prescribed grounds for cancellation.

5. There are no prescribed circumstances for the purposes of the current application for review. As a result, if the Tribunal is satisfied that there are grounds to cancel the applicant’s visa under subsection 116(1) of the Act, there is no obligation for it to cancel her visa. In exercising its discretion, the Tribunal is to consider all relevant circumstances before reaching a decision whether cancelling the visa is the correct or preferable decision.

6. In this case, notwithstanding the applicant’s response to the departmental notice, the delegate was satisfied that there were grounds to cancel the visa.

   Subsection 116(1)(b) – Compliance with a Condition of the Visa:

7. A visa may be cancelled under subsection 116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. Therefore, the first issue before the Tribunal is whether the applicant failed to comply with a condition of her Subclass 457 visa.

8. In this instance, condition 8107 is relevant to the current application for review. The operative version of a visa condition is the version that was applicable at the time of visa grant.[29]  Accordingly, the relevant version of condition 8107 is extracted in the attachment to this decision.

   [29]    Pradhan v Minister for Immigration and Multicultural Affairs (1999) FCA 1240

9. Specifically, the Tribunal finds that subclause 8107(3) applies to the present matter because the Department granted the applicant a Subclass 457 visa on the basis that she met the requirements of subclause 457.223(4). As noted previously, the applicant did not dispute these matters in the response she provided to the Tribunal to the first section 359A invitation it sent her on 14 February 2017. Nor has she since raised any issues in this respect.

   (a)The Exemption in Subclause 8107(3A):

10. Subclause 8107(3A) provides that an applicant will not be subject to the requirements of subclause 8107(3) in certain circumstances. 

11. In this case, the Tribunal finds that the applicant does not meet the requirements of paragraph 8107(3A)(a) for the purposes of the relevant exemption. This is because, based on the departmental records set out in its section 359A invitation (dated 14 February 2017[30]), the Department approved the nomination lodged by Robin Painting Services Pty Ltd for a ‘Painting Trades Worker’ on 6 March 2015. As a result, the Tribunal is satisfied that the applicant’s sponsor made this application after 1 July 2010.[31]

    [30]    T1, f.47-50

    [31] This information was included in the invitation sent to the applicant under section 359A of the Act on 14 February 2017. See T1, f.47-51

12. In relation to paragraph 8107(3A)(aa), the applicant will only be exempted from the requirements of subclause 8107(3) if her occupation (‘Painting Trades Worker’) was specified in the relevant instrument, or the applicant continues to work for her sponsor or an associated entity. For the purposes of paragraph 8107(3A)(aa), the relevant instrument is IMMI 13/067.[32]

    [32]    IMMI 13/067, ‘Specification of Occupations for Nominations in relation to Subclass 457 (Temporary Work (Skilled)) for Positions other than in the Business of the Nominator (Regulation 1.03, sub-subparagraphs 2.72(10)(d)(ii)(B), 2.72(10)(d)(iii)(B), 2.72(10)(e)(ii)(B), 2.72(10)(e)(iii)(B), subregulation 2.86(2B) and subparagraph 457.223(4)(ba)(i))’, 28 June 2013

13. However, IMMI 13/067 does not specify a ‘Painting Trades Worker’ (ANZSCO Code 332211) as an occupation for the purposes of subparagraph 2.72(10)(e)(ii) or (iii). Accordingly, the Tribunal finds that the applicant does not meet the requirements of paragraph 8107(3A)(aa).

14. In relation to paragraph 8107(3A)(b), the Tribunal has had regard to the applicant’s statutory declaration (dated 28 February 2017[33]) in which she advised that she had ceased her employment with her sponsoring employer, Robin Painting Services Pty Ltd, when it discontinued its operations. In addition, the applicant also advised that she had found a new employer, Makris Group Pty Ltd, to sponsor her for the purposes of her Subclass 457 visa.

    [33]    T1, f.52-53

15. The Tribunal observes that there is little in this statutory declaration, or the other evidence before it, to suggest that Robin Painting Services Pty Ltd and Makris Group Pty Ltd are associated entities. Similarly, there is little in the material the applicant provided on 14 January 2018 to indicate that Sehaj Painting Services Pty Ltd is a related entity in respect of Robin Painting Services Pty Ltd.

16. As a consequence, the Tribunal is satisfied that the applicant has not continued to work for an associated entity of Robin Painting Services Pty Ltd for the purposes of paragraph 8107(3A)(b). Therefore, the Tribunal finds that she does not meet the requirements of this provision.

17. In view of its findings in respect of paragraphs 8107(3A)(a), (aa) and (b), the Tribunal therefore finds that the circumstances set out in subclause 8107(3A) do not apply to the applicant to exempt her from the requirements of subclause 8107(3).

    (b)Has the Applicant Failed to Comply with Subclause 8107(3)?

18. In relation to subclause 8107(3), the last substantive visa the applicant held was a Subclass 457 visa granted on the basis that she met the requirements of subclause 457.223(4).

19. Accordingly, given its finding that subclause 8107(3A) does not apply to the applicant, in order for the applicant to comply with subclause 8107(3) the Tribunal must be satisfied that:

    ·The applicant only worked in the occupation listed in the most recently approved nomination for her, which in this case, was as an ‘Painting Trades Worker’ with Robin Painting Services Pty Ltd: paragraph 8107(3)(a); and

    ·If the applicant ceased this employment, the period during which she ceased employment did not exceed 90 consecutive days: paragraph 8107(3)(b).

20. As noted previously, the applicant has not raised any issues with the factual matters the Tribunal set out in its section 359A invitation (dated 14 February 2017[34]). Rather, in her statutory declaration (dated 28 February 2017[35]) the applicant confirmed acknowledged that she had ceased her employment with her sponsoring employer for more than 90 consecutive days and that she had found a new employer to sponsor her, namely, Makris Group Pty Ltd. As noted previously, the applicant also advised the Tribunal on 14 January 2018 that she was employed by Sehaj Painting Services Pty Ltd at the time of decision.  

    [34]    T1, f.47-50

    [35]    T1, f.52-53

21. As a result, given the evidence before it, the Tribunal finds that the applicant’s employment in the nominated occupation of ‘Painting Trades Worker’ at Robin Painting Services Pty Ltd ceased on 30 January 2016. The Tribunal further finds that the applicant has not returned to this employment at the time of its decision.

22. Consequently, the Tribunal is satisfied that the applicant has ceased her employment with her sponsoring employer for more than 23 consecutive months at the time of its decision.

23. Therefore, the Tribunal finds that the applicant has not complied with the requirement in paragraph 8107(3)(b) that the cessation of her employment must not exceed 90 consecutive days and the requriements of condition 8107, which was a condition that applied to her Subclass 457 visa.

24. For these reasons, the Tribunal is satisfied that the ground for cancellation in subsection 116(1)(b) exists.

25. It follows, that as this ground for cancellation does not require mandatory cancellation under subsection 116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of the Discretion Regarding Cancellation

26. In relation to the consideration of the relevant discretion regarding cancellation, although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the Tribunal observes that the Courts have generally held that the relevant facts of an individual case will have to be supplied by the applicant, in as much detail as is necessary to enable the relevant decision-maker to establish the relevant facts.

27. As a result, a decision-maker is not required to make an applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[36]

    [36]    See MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70

28. The Tribunal notes that 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.

29. 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 (s109, s116, s128 & s140)’.

30. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[37] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[38] 

    [37]    See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

    [38]    See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209 Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 (at [55]

31. Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion.

32. In considering its discretion, the Tribunal has also taken into account the applicant’s various submissions and evidence. This includes submissions dated 6 and 25 May 2016[39], 28 February 2017[40], and 14 January 2018.[41]

    [39]    D1, f.18-25 & 30-38

    [40]    T1, f.52-55

    [41]    T1, f.73-86

33. Accordingly, the evidence and issues are discussed under the following headings:

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

34. According to the departmental policy guidelines in PAM3, the Subclass 457 visa programme is “designed to enable employers to address labour shortages by bringing in genuinely skilled workers where they cannot find an appropriately skilled Australian.”[42]

    [42]    See PAM - Sch2 Visa457 - Temporary Work (Skilled) - 457 visa applications

35. As noted previously, whilst the Tribunal is not bound to apply these guidelines, they provide a valid starting point. This is particularly so in terms of assessing the purpose of the applicant’s travel and stay in Australia as the holder of a Subclass 457 visa, as well as whether there is a need for her to remain in Australia.

36. In this case, the applicant confirmed in her statutory declaration (dated 28 February 2017[43]) that she was originally granted her Subclass 457 visa on 19 June 2015 to work for Robin Painting Services Pty Ltd, but that her sponsoring employer had discontinued operation. In addition, in the response (dated 25 May 2016) the applicant’s then representative provided to the Department, he acknowledged that the applicant’s employment with this business had ceased on 30 January 2016.[44] The Tribunal notes that the applicant has not otherwise disputed these matters during the course of her application for review.

    [43]    T1, f.53

    [44]    D1, f.24

37. Accordingly, on the basis of the evidence before it, the Tribunal is satisfied that the applicant was issued with a Subclass 457 visa on 19 June 2015 to enable her to remain in Australia and work as a ‘Painting Trades Worker’ for Robin Painting Services Pty Ltd for a period of 4 years until 19 June 2019. 

38. As a result, given that the applicant’s position of employment with her sponsoring employer ceased on 30 January 2016, the Tribunal finds that the original purpose for granting the applicant a Subclass 457 visa no longer exists at the time of its decision.

39. Notwithstanding, the applicant has provided evidence of her employment with Sehaj Painting Services Pty Ltd since May 2017[45], and a letter of support (dated 7 January 2018[46]) from this employer indicating that it would like to continue her employment. She has also submitted a Trades Recognition Australia provisional skills assessment (dated 10 August 2017[47]) as a ‘Painting Trades Worker’ and a ‘Statement of Prior Employment’  (dated 19 December 2017[48]) with Sehaj Painting Services Pty Ltd for the purposes of the ‘Job Ready’ program conducted by Trades Recognition Australia.

    [45]    T1, f.75-85

    [46]    T1, f.73

    [47]    T1, f.78 reverse

    [48]    T1, f.74

40. As a result, the Tribunal has considered whether the applicant’s qualifications, skills and employment background as a ‘Painting Trades Worker’, and the circumstances in which her employment had ceased, constitute compelling reasons that would favour the exercise of the cancellation discretion to allow her remain in Australia.

41. In doing so the Tribunal has had regard to the judgment in Paduano v Minister for Immigration & Multicultural & Indigenous Affairs & Migration Review Tribunal[49] where the Federal Court held that the ordinary meaning of ‘compelling’ is ‘forceful’. In particular, the Court held that forceful reasons (in the context of reasons for an absence from Australia) may involve physical, legal or moral necessity, or may, by reason of their forcefulness, be convincing.

    [49] [2005] FCA 211: This case involved the issue of compelling reasons for an applicant’s absence from Australia in relation to a resident return visa.

42. The Tribunal also notes that according to the Macquarie Dictionary Online the term ‘compelling’ is defined to mean: “1. demanding attention or interest…2. convincing: a compelling argument”.[50] It defines ‘compassionate’ to mean: “1. having or showing compassion. 2.  on the grounds of compassion: compassionate leave…4.  to have compassion for; pity”.[51]

    [50]    T1, f.89:  - Accessed 17 January 2018

    [51]    T1, f.90: - Accessed 17 January 2018

43. Similarly, the Oxford Dictionaries Online defines ‘compelling’ to mean: “evoking interest, attention, or admiration in a powerfully irresistible way…not able to be refuted; inspiring conviction…not able to be resisted; overwhelming”. It defines ‘compassionate’ to mean: “feeling or showing sympathy and concern for others”.[52]

    [52]    T1, f.91: - Accessed 17 January 2018

44. Accordingly, having regard to the evidence before it, the relevant case law, the dictionary definitions and the relevant policy guidelines, the Tribunal now turns to consider whether there are compelling reasons for the applicant to remain in Australia that would support the exercise of the cancellation discretion in his favour. These are discussed as follows:

    (a)The Applicant’s Qualifications, Skills and Employment Background:

45. In considering whether the applicant has a compelling need to remain in Australia, the Tribunal has taken not account the applicant’s age, qualifications, skills and employment background.

46. Given the contents of the applicant’s NOICC response[53] and her online application for review form[54], the Tribunal finds that she is aged approximately 39 years at the time of decision.

    [53] As the applicant gave this information in writing during the process that led to the decision under review it comes within the exception in subsection 359A(4)(ba) of the Act: See also See SZLYD v Minister for Immigration and Citizenship [2008] FMCA 805 at [30] and ADA15 v Minister for Immigration and Border Protection [2016] FCCA 291 at [5], which was upheld on appeal: ADA15 v Minister for Immigration and Border Protection [2016] FCA 634.

    [54]    T1, f.88

47. In addition, on the basis of the Trades Recognition Australia provisional skills assessment (dated 10 August 2017[55]) and work journals[56], the Tribunal accepts that the applicant has skills and an employment background that would be relevant to the position of a ‘Painting Trades Worker’ (ANZSCO Code 332211) in Australia.

    [55]    T1, f.78 reverse

    [56]    T1, f.75-77

48. However, the Tribunal observes that the provisional skills assessment before it specifically states:

    …

    This letter is not a qualification nor does it represent formal accreditation of your skills and experience. It can only be use to apply to the Department of Immigration and Border Protection (DIBP) for a Temporary Graduate visa (subclass 485)…

    Once you have lodged your application for a 485 visa, you can apply for Step 2 of the Job Ready Program…[57]   

    [57]    T1, f.78 reverse

49. In other words, the provisional skills assessment the applicant has provided to the Tribunal is not relevant for the purposes of a Subclass 457 visa, but for a Subclass 485 visa. However, the applicant has not provided any evidence to suggest that she has applied for a Subclass 485 visa. As a result, the Tribunal gives the provisional skills assessment less weight in relation to the exercise of the cancellation discretion. 

50. Consequently, whilst the Tribunal accepts that the applicant’s age, skills and employment background are relevant to the assessment as to whether she has a compelling need to remain in Australia, on the basis of the available evidence before, it is not satisfied that these factors are necessarily sufficient, without more, to support the exercise of the cancellation discretion in her favour.

    (b)The Applicant’s Efforts to find a New Sponsoring Employer:

51. Accordingly, the Tribunal has also had regard to the applicant’s efforts to find a new sponsoring employer since the cessation of her employment with Robin Painting Services Pty Ltd on 30 January 2016.

1. The evidence confirms the applicant’s efforts resulted in Makris Group Pty Ltd agreeing to sponsor her for a Subclass 457 visa in October 2016. However, as set out in the Tribunal’s second section 359A invitation (dated 15 December 2017[58]), the Department refused the business nomination lodged by Makris Group Pty Ltd on 31 October 2016, and the Tribunal affirmed this decision on 14 December 2017.

   [58]    T1, f.56-58

2. As noted above, the applicant has submitted evidence of her employment as a ‘Painting Trades Worker’ with Sehaj Painting Services Pty Ltd since May 2017.[59] In addition, this company has indicated that it would like to continue the applicant’s employment in Australia, and that it would be willing to sponsor her for this purpose, if necessary.[60]

   [59]    T1, f.75-85

   [60]    T1, f.73

3. However, there is little in the evidence the applicant has presented to indicate that Sehaj Painting Services Pty Ltd has taken any steps to lodge applications with the Department to be approved as a standard business sponsor and for a business nomination.

4. In considering this matter the Tribunal has taken into account that it notified the applicant on 15 December 2017 (through its section 359A) invitation that it had affirmed the decision not to approve the business nomination application lodged by Makris Group Pty Ltd on 14 December 2017. As a result, the Tribunal acknowledges that the applicant has only been formally aware that she is not the subject of an approved nomination for approximately a month at the time of decision. It also understands that the 2017 Christmas holiday break may well have hampered the ability of Sehaj Painting Services Pty Ltd to lodge business sponsorship and nomination applications with the Department during this period.

5. On the other hand, as discussed below, the applicant has been aware of the reasons her Subclass 457 visa was cancelled since 21 October 2016. In addition, the applicant demonstrated in her NOICC response[61] to the Department and in her responses to the Tribunal on 28 February 2017[62] and 14 January 2018[63] that she appreciated the importance of finding a new sponsoring employer given the cancellation of her Subclass 457 visa. In particular, the Tribunal is satisfied that from 14 February 2017 to 15 December 2017 the applicant was aware and understood that the outcome of the review lodged by Makris Group Pty Ltd in AAT Case file 1618152 would have a bearing upon her application for review regarding the cancellation of her visa.

   [61]    D1, f:24

   As the applicant gave this information in writing during the process that led to the decision under review it comes within the exception in subsection 359A(4)(ba) of the Act: See also See SZLYD v Minister for Immigration and Citizenship [2008] FMCA 805 at [30] and ADA15 v Minister for Immigration and Border Protection  [2016] FCCA 291 at [5], which was upheld on appeal: ADA15 v Minister for Immigration and Border Protection [2016] FCA 634.

   [62]    T1, f.52-54

   [63]    T1, f.73-85

6. Further, in its letter of acknowledgment of the application for review (dated 31 October 2016[64]) the Tribunal specifically requested that the applicant advise it immediately if her personal circumstances changed and this was relevant to the review.

   [64]    T1, f.95

7. As a consequence, in the Tribunal’s view it does not seem unreasonable to expect the applicant to have notified it of the change in her employment prior to 14 January 2018. Nor does it inappropriate to expect the applicant to have asked her new employer to take the necessary steps to sponsor her for the Subclass 457 well before this date.

8. Yet, not only did the applicant fail to inform  the Tribunal before 14 January 2018 that she had been employed by Sehaj Painting Services Pty Ltd since May 2017, it appears that this employer has not taken any steps prior to this date to lodge the required business sponsorship and nomination applications with the Department for this purpose.

9. Accordingly, on the available evidence the Tribunal is satisfied that the applicant has not worked as a ‘Painting Trades Worker’ for Robin Painting Services Pty Ltd since 30 January 2016 and that this continues to be the case at the time of decision.

10. In addition, the Tribunal also finds that the applicant does not have an approved sponsor who has an approved business nomination in her favour at the time of decision. Likewise, the Tribunal finds that there is little in the evidence to suggest that there is a pending business nomination application before the Department from Sehaj Painting Services Pty Ltd in the applicant’s favour for this purpose.   

    Summation:

11. In assessing the purpose of the applicant’s stay, and whether she has a compelling need to remain, in Australia the Tribunal has taken into account the applicant’s age, skills and employment background as a ‘Painting Trades Worker’. It has also had regard to the applicant’s efforts to find a new sponsoring employer. 

12. Nevertheless, given the underlying purpose of the Subclass 457 visa programme is to address Australian labour shortages, the Tribunal gives greater weight to the absence of an approved or pending business nomination application at the time of decision that would provide the applicant with an opportunity to work in an approved occupation as the holder of a Subclass 457 visa. This is because, despite the applicant’s skills in the painting trade, the absence of an approved business nomination for this purpose does not suggest that there is a labour shortage in Australia for her specific skills.

100.   As a result, the Tribunal is not satisfied that the evidence reveals compelling reasons for the applicant to remain in Australia. As discussed in this decision record, the Tribunal is also not satisfied that the applicant has put forward other factors that either individually, or on a cumulative basis, suggest that there are convincing or forceful reasons involving physical, legal or moral necessity to support an argument that she needs to remain in Australia.

101.   Therefore, on balance, the Tribunal does not consider that the purpose of the applicant’s original travel and stay in Australia, or that the reasons put forward for her to remain in Australia, point to the exercise of the relevant discretion in her favour.

The Circumstances in which the ground of cancellation arose, and the reasons for and extent of non-compliance with any visa condition:

102.   According to the primary decision record the applicant included with her application for review, the cancellation process was triggered when the Department received written advice from the applicant’s sponsor that it had ceased operation and the applicant had ceased her employment, effective 30 January 2016.[65]

[65] As the applicant provided this information to the Tribunal with her application for review, it comes within the exception in subsection 359A(4)(b) of the Act. See: T1, f.1-4.

103.   Notably, the applicant has not disputed this fact in any of her submissions to the Tribunal. In her statutory declaration (dated 28 February 2017[66]) the applicant explained that when her employment with Robin Painting Services Pty Ltd ended it took her some time to find another employer willing to sponsor her for the purposes of her Subclass 457 visa. As a result, although Makris Group Pty Ltd had agreed to do so and had lodged the relevant documents with the Department, this had taken more than the 90 days allowed under paragraph 8017(3)(b). Consequently, the applicant acknowledged that she failed to comply with the requirements of condition 8107.     

[66]    T1, f.52-53

104.   In considering these claims the Tribunal has beneficially taken into account the applicant’s age, her English language skills, educational, social, family and cultural background, as well as the extent to which these considerations might have hampered her efforts to find a suitable sponsoring employer.  In addition, the Tribunal recognises, as has been the case here, that there are instances where an applicant’s employment with a sponsoring employer may come to an end for reasons that are unrelated to their on-the-job performance or conduct as a temporary visa holder.

105.   On the other hand, the applicant has not complied with condition 8107 for approximately 23 months at the time of decision, which far exceeds the 90 days permitted by paragraph 8107(3)(b). This is a matter to which the Tribunal assigns some weight.

106.   Accordingly, despite the applicant’s claims, after taking into account the particular circumstances of this case the Tribunal is not satisfied that the extent of the applicant’s non-compliance with condition 8107 points to the exercise of the relevant discretion in her favour for the following reasons.

107.   In her statutory declaration (dated 28 February 2017[67]) the applicant advised that she had been in Australia since 17 October 2008 as the holder of student visas, as well as her Subclass 457 visa. She also stated that she had “always complied entirely with all conditions” on her previous visas. The applicant added that she had notified the Department about the changes to her previous sponsor and that she had made an effort to find a new sponsoring employer.

[67]    T1, f.52-53

108.   The Tribunal observes that these matters support the view that the applicant was aware that her Subclass 457 visa was subject to conditions, including condition 8107. Indeed, the applicant’s actions in finding other employers to potentially sponsor her for the purposes of here Subclass 457 visa since January 2016 confirm that she understood the requirements of condition 8107. As a result, the Tribunal is satisfied that this is not a case where the applicant was completely unaware of the requirements of condition 8107.

109.   Notwithstanding, the applicant did not take any proactive steps prior to 14 January 2018 to notify the Tribunal of the change in her employment circumstances, namely that she had commenced employment as a ‘Painting Trades Worker’ with Sehaj Painting Services Pty Ltd in May 2017.

110.   Consequently, this has meant that at the time of the Tribunal’s decision in 2018 the applicant has not complied with condition 8107 for approximately 23 consecutive months, approximately 20 months longer than is permitted by paragraph 8107(3)(b). Against this backdrop, the Tribunal considers that the applicant’s awareness of condition 8017 outweighs the personal circumstances outlined above.

111.   The Tribunal has also considered the applicant’s explanation that it took time to find a new employer (Makris Group Pty Ltd) that was also willing to sponsor her for the Subclass 457 visa and lodge the necessary docs with the Department for this purpose.

112.   Nevertheless, the evidence the applicant presented to the Tribunal on 14 January 2018 indicates that her current employer, Sehaj Painting Services Pty Ltd, has not taken steps any similar steps at the time of this decision to actually sponsor her to work in its business. This is in circumstances where the applicant has been employed by this business as a ‘Painting Trades Worker’ since May 2017. In this case, the Tribunal gives greater weight to this fact and less to the applicant’s efforts to mitigate the breach of condition 8107 by finding a new sponsoring employer.  

113.   Accordingly, having regard to all the evidence before it, on balance, the Tribunal is not satisfied that the circumstances that led to the cancellation of the applicant’s visa, or that the reasons for and the extent of her non-compliance with condition 8107, point to the exercise of the relevant discretion in her favour.

Past and present conduct of the visa holder towards the Department:

114.   In terms of the applicant’s past and present conduct, there is little in the evidence to suggest that she has failed to comply with any other visa conditions imposed upon the grant of any visa to her.

115.   The Tribunal therefore accepts that there is some scope for the view that the applicant has not previously breached any other visa conditions, and that she has generally abided by Australian laws as a non-citizen.

116.   On the other hand, certain aspects of the applicant’s conduct during the review render it difficult to characterise her dealings with the Tribunal always being co-operative.

117.   Notably, although the applicant responded to the Tribunal invitation (dated 14 February 2017[68]) and the hearing invitation (dated 15 December 2017[69]), she did not provide any comments / response and the information the Tribunal had requested on 15 December 2017[70] within the prescribed period.

[68]    T1, f.47-50

[69]    T1, f.59-64

[70]    T1, f.56-58

118.   In addition, whilst the applicant did respond to the Tribunal letter (dated 8 January 2018[71]) regarding the loss of her right to a hearing, it was only on 14 January 2018 that the applicant advised the Tribunal that she had been working with Sehaj Painting Services Pty Ltd since May 2018.

[71]    T1, f.71-72

119.   Accordingly, the Tribunal does not accept that, on balance, the applicant’s past and present conduct can be positively taken into account to warrant a favourable exercise of the relevant discretion.

Degree of hardship that may be caused (financial, psychological, emotional or other hardship):

120.   In her statutory declaration (dated 28 February 2017[72]) the applicant put forward a number of grounds relating to hardship that she argued justified the exercise of the discretion in her favour. In her submission (dated 14 January 2018[73]) she also referred to the fact that she was “having a lot of problems”. Therefore, the Tribunal has considered the applicant’s claims as follows:

(a)The Applicant’s Long-term Goals:

[72]    T1, f.52-53

[73]    T1, f.86

121.   In her statutory declaration, the applicant advised that she and her spouse had been present in Australia for more than 8 years, and that her son was born here in 2013. As a result, the applicant claimed that she and her family would not only be disadvantaged if they had to depart Australia, but it would also cause them “extreme hardship”.

122.   The Tribunal understands the applicant’s personal goals in terms of her to provide a better life for her family, especially given the duration of their residence in Australia to date. It also accepts that the applicant is highly invested in attaining these goals, as they are not necessarily without merit. The Tribunal further recognises that the cancellation of the applicant’s Subclass 457 visa represents a significant personal setback for her and her family, given this objective.

123.   However, as noted previously, departmental policy indicates that the Subclass 457 programme is a temporary residence programme. Importantly, as such it may not necessarily lead to permanent residence, as it is designed to address labour market shortages in Australia that may change according to prevailing economic conditions.

124.   As a result, on the basis of the evidence before it, the Tribunal gives the applicant’s residence in Australia as a temporary visa holder since 2008, and her desire to remain in Australia, less weight in its consideration of the relevant issues.

(b)The Potential Detriment to the Applicant:

125.   In assessing whether to exercise its discretion in the applicant’s favour, the Tribunal has also taken into account the applicant’s claims that she and her family would suffer hardship if they were required to depart Australia.

126.   The Tribunal notes that the applicant indicated in her online application for review that she is a national of India.[74]   

[74] T1, f.88: As the applicant provided this information to the Tribunal with her application for review, it comes within the exception in subsection 359A(4)(b) of the Act.

127.   Although the applicant claimed that requiring her to leave Australia after more than 8 years would cause her and her family “extreme hardship”[75], she did not expand on this in her statutory declaration (dated 28 February 2017[76]) beyond referring to the duration of time she had spent in Australia.

[75]    T1, f.52

[76]    T1, f.52-53

128. This is despite two invitations under section 359(2) of the Act in February 2017 and December 2017. These invitations specifically invited the applicant to provide information that would confirm the degree of hardship she and her family would suffer as a result of the cancellation, as well as any mitigating, compassionate and compelling factors the Tribunal should take into account for the purposes of the exercise of its discretion.

129.   Correspondingly, whilst the applicant advised the Tribunal on 14 January 2018[77] that she was “having a lot of problems”, her submission largely centred on issues relating to her past and present employment in Australia, and the difficulties she was experiencing in obtaining documents from Makris Group Pty Ltd.

[77]    T1, f.86

130.   As a consequence, this submission and the accompanying evidence also failed to focus on the hardship the applicant would experience if her visa was cancelled, or identify any mitigating, compassionate and compelling factors that warranted the favourable exercise of the cancellation discretion in her case.   

131.   The Tribunal acknowledges that the cancellation of the applicant’s visa is likely to cause her to suffer a potential financial loss, given that she will not be able to continuing in her paid employment with Sehaj Painting Services Pty Ltd. Notwithstanding the limitations of the evidence before it, the Tribunal also acknowledges the likelihood that the applicant’s economic circumstances in India, along with those of her family, may not compare favourably with those she has enjoyed in Australia.

132.   However, many overseas nationals face a similar disparity in terms of the income they can earn in their home country when compared with the higher standard of living available in Australia. As a result, the Tribunal does not consider this to be an overly persuasive factor for the exercise of its discretion, as many applicants face this particular dilemma.

133.   In addition, as mentioned before, the purpose in granting a Subclass 457 visa is to meet the needs of Australian employers where there is a shortage of required skills. Consequently, and without wishing to sound harsh, this programme is not directed at assisting parties to remain in Australia and to achieve temporary or permanent residence where the need for particular skills with the original sponsoring employer have ceased to exist, and where an applicant has not found a new approved sponsoring employer at the time of decision.

134.   Accordingly, the Tribunal understands the applicant’s stated desire to remain in Australia. On the other hand, it also notes that, as the holder of temporary student and Subclass 457 visas, the applicant has been aware since her arrival in 2008 that she was present in Australia on a temporary basis.

135.   As a result, in considering its discretion the Tribunal gives less weight to the potential financial detriment, or relocation issues the applicant and her immediate family unit face in India, due to the cancellation of their temporary visas.

136.   Correspondingly, given that the applicant advised that any forced departure from Australia would result in “extreme hardship”, the Tribunal has also considered any potential psychological, emotional and educational consequences that might impact the applicant and her family.

137.   Firstly, the Tribunal observes that even though it invited the applicant on more than one occasion to provide information that would confirm the degree of hardship that would be suffered, she has presented little in the way of evidence that would point to “extreme hardship”.

138.   Secondly, in considering the impact of the cancellation of the applicant’s visa upon the applicant’s son (aged approximately 4 ½ years), the Tribunal does not dispute her natural desire to provide the best she can for him, including his education.

139.   On the other hand, even assuming that the applicant’s son has attended kindergarten or pre-school classes, given his age he has barely commenced his education in Australia. In addition, the Tribunal observes that the transition from temporary residence, as the holder of a Subclass 457 visa, to Australian permanent resident is never certain. Therefore, despite the birth of the applicant’s son in Australia in 2013, there was no long-term certainty at that time or at that time of decision that he would be able to complete his entire education in Australia.

140.   The Tribunal understands that the applicant, her spouse and child have a strong inclination to remain in Australia. The Tribunal also does not doubt that if allowed to remain in Australia this would result in a considerable measure of happiness for them. Still, the Tribunal considers these matters need to be balanced against the fact that the applicants are non-citizens and that their most recent temporary visas (namely, their Subclass 457 visas) were subject to certain conditions, including condition 8107.

141.   For the above reasons, the Tribunal gives these matters less weight in relation to the exercise of the relevant cancellation discretion.

Summation:

142.   In considering the exercise of its discretion, the Tribunal has had regard to the extent to which the applicant and the members of her family unit might experience hardship, be that on a financial, psychological, emotional or some other basis. It has also taken into account the applicant’s aspiration to remain in Australia, given she has resided with her family here for more than 8 years. In addition, the Tribunal has considered the potential financial detriment to the applicant, her spouse and child, as well as the potential difficulties they applicant might face in India, if her visa is cancelled and they are required to depart Australia.

143.   Nevertheless, given the limited evidence before it and for the reasons set out above, the Tribunal is not persuaded that these matters point to the exercise of the relevant discretion in the applicant’s favour.

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being 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 person from making a valid visa application without the Minister’s intervention

(a)Mandatory Legal Consequences Generally:

144. The Tribunal observes that there are certain mandatory legal consequences that follow the cancellation of a visa. For example, if the Tribunal affirms the decision to cancel the applicant’s visa, she will become an unlawful non-citizen. As such, she would be required to depart Australia or become liable for detention and removal from Australia under sections 189 and 198 of the Act. The applicant would also be prevented by the Act from making certain types of visa applications while onshore.

145.   However, these possible legal outcomes are the intended consequence of the legislation. They also reflect the seriousness with which visa cancellation is viewed.

146.   Accordingly, given the evidence before it, the Tribunal is not persuaded that there is anything in the mandatory legal consequences that generally flow from cancellation that warrants the exercise of the relevant discretion in the applicant’s favour.

(b)The Application of the Relevant Public Interest / Special Return Criteria: 

147.   In weighing the legal consequences of any decision to cancel the applicant’s visa, the Tribunal has also considered the extent to which public interest criteria 4013 and 4014 and special return criteria 5001, 5002 and 5010, which may impose an exclusion period, may apply to the applicant.

(i)Public interest criterion 4013:

148.   Specifically, public interest criterion 4013 only applies where a visa is cancelled under:

·Section 109, paragraph 116(1)(d), paragraph 116(1)(e), subsection 116(1AA) or (1AB), section 133A, section 137J of the Act; or

·Section 128 because the Minister was satisfied that the ground mentioned in paragraph 116(1)(d) applied to the person; or

·Section 133C because the Minister was satisfied that the ground mentioned in paragraph 116(1)(d) or subsection 116(1AA) or (1AB) applied to the person.

149. The applicant has not disputed in any of her responses that her visa was cancelled under subsection 116(1)(b) for failure to comply with condition 8107. As such, it was not cancelled under sections 116, 128 or 133C. In addition, the cancellation of the applicant’s visa did not proceed on the basis that she was found by immigration to be working without authority.

150.   Further, a Subclass 457 visa is not specified in Part 2 of Schedule 4 of the Regulations and given the applicant’s statutory declaration (dated 28 February 2017[78]). Therefore, the Tribunal finds that the applicant was not the holder of a student visa or a subclass 773 Border visa when her visa was cancelled.

[78]    T1, f.52-53

151.   In addition, the applicant’s Subclass 457 visa was not cancelled on a ground prescribed by paragraph 2.43(1)(ea), (i), (ia), (j), (k), (ka), (kb), (m), (o), (oa) or (ob), and the applicant has not disputed these matters at any time during the review.

152.   As a result, the Tribunal finds that the exclusion period in public interest criterion 4013 does not apply to the applicant.

(ii)Public interest criterion 4014:

153.   In relation to public interest criterion 4014, this only applies where a person has left Australia under subclause 4014(4) as an unlawful non-citizen, or as the holder of a Bridging visa C, D or E. Subclause 4014(4) does not apply if the bridging visa the applicant holds at the time of her departure was granted to her within 28 days of her substantive visa ceasing to be in effect. In the alternative, it also does not apply if the applicant held a bridging visa granted to her as a result of holding a bridging visa granted within 28 days of her substantive visa ceasing to be in effect.

154. The Tribunal notes that, for the purposes of the exercise of the cancellation discretion, it has twice invited the applicant under subsection 359(2) (on 14 February 2017[79] and 15 December 2017[80]) to provide information regarding whether there are any mandatory legal consequences that flow from the cancellation of her visa. However, the applicant did not provide any information to this effect.   

[79]    T1, f.47-50

[80]    T1, f.56-58

155.   As a result, there is little in the evidence that the applicant has presented to suggest that public interest criterion 4014 would apply adversely to her such that this would warrant the exercise of the cancellation discretion in her favour.  

(iii)Special return criteria 5001, 5002 and 5010:

156. Special return criterion 5001 applies where a person departs Australia whilst subject to a relevant deportation order under the Act, or is a person whose visa has been cancelled under sections 501, 501A, 501B, 501C(4), 501CA(4) or 501BA of the Act. The Tribunal notes that at the time of its decision, none of these circumstances apply to the applicant.

157. Similarly, special return criterion 5002 applies where a person has been removed from Australia under sections 198, 199 or 205 of the Act. The Tribunal observes that none of these circumstances apply to the applicant at the time of its decision.

158.   Correspondingly, special return criterion 5010 applies where an applicant is, or has previously been, the holder of a Foreign Affairs student visa. There is little in the evidence before the Tribunal to suggest that this applies to the applicant.  

159.   Therefore, the Tribunal is satisfied that the exclusions periods applicable in special return criteria 5001, 5002 and 5010 would not apply to the applicant.

Summation:

160.   In relation to the exercise of the relevant discretion, the Tribunal has considered the mandatory legal consequences that flow from cancellation of the applicant’s visa. It has also had regard to the application of the relevant public interest and special return criteria to the applicant.

161. In particular, given its findings in respect of public interest criteria 4013 and special return criteria 5001, 5002 and 5010, the Tribunal is satisfied that the applicant is unlikely to be subject to the exclusion periods contained in these legislative provisions if her Subclass 457 visa is cancelled under subsection 116(1)(b) for failure to comply with condition 8107.

162.   As a result, for the reasons it has outlined above, the Tribunal is not satisfied that the mandatory legal consequences that might apply to the applicant under the relevant legislation point to the exercise of the relevant discretion in her favour.

Whether there would be consequential cancellations under section 140

163. As noted earlier, the applicant’s spouse and child had their Subclass 457 visas automatically cancelled under subsection 140(1) of the Act once the applicant’s visa was cancelled. As a result, the Tribunal finds that there are secondary visa holders whose authority to remain in Australia would be affected by a consequential cancellation under section 140 of the Act.

164.   In addition, the Tribunal is satisfied that, other than providing emotional and other support to the applicant, the second and third-named applicants did not contribute in any way to the circumstances that led to the applicant’s non-compliance with condition 8107.

165.   Therefore, the Tribunal gives some, albeit limited weight, to this factor in relation to the exercise of the relevant discretion in the applicant’s favour.

If the non-compliance relates to a breach of subregulation 2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate, or circumstances factors:

166.   Subregulation 2.43(1)(la) applies where a person holds a Subclass 457 visa granted on the basis of a nomination approved under regulation 1.20GA as in force prior to 14 September 2009.

167. As set out in the Tribunal’s section 359A letter (dated 14 February 2017[81]), Robin Painting Services Pty Ltd had its nomination approved on 6 March 2015. The applicant did not dispute this fact in her response to this invitation on 28 February 2017. In particular, the applicant confirmed in her statutory declaration (dated 28 February 2017[82]) that she was granted her Subclass 457 visa on 19 June 2015 on the basis of the departmental approval of this business nomination.

[81]    T1, f.47-50

[82]    T1, f.52-53

168.   Accordingly, the Tribunal finds that that subregulation 2.43(1)(la) does not apply because the relevant nomination that led to the grant of the applicant’s Subclass 457 visa was approved after 14 September 2009.

169. In addition, the Tribunal finds that this matter is not relevant to its consideration because the applicant’s Subclass 457 visa was cancelled under subsection 116(1)(b) for failure to comply with condition 8107, rather than for breach of subregulation 2.43(1)(la).

170.   As a result, the Tribunal is not satisfied that this consideration adds anything to the exercise of the relevant discretion in the applicant’s favour.

Whether any international obligations would be breached as a result of the cancellation:

171.   In considering whether to exercise its discretion to cancel the applicant’s visa, the departmental policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol. It also refers to Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), the Convention Against Torture and Other Cruel Inhuman or degrading Treatment or Punishment (CAT), and the International Covenant on Civil and Political Rights (ICCPR).

172.   However, in this case there is little in the evidence that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements. Specifically, there is no claim or any evidence before the Tribunal that if the applicant returns to India she will face persecution, death, torture, cruel, inhuman or degrading treatment or punishment. Indeed, whilst the applicant indicated in her submission (dated 14 January 2018[83]) that she would suffer “extreme hardship” if she was required to leave Australia, she did not make any claim regarding any potential entitlement to a Protection visa. Nor did she make any claim regarding her rights under the CAT or ICCPR.

[83]    T1, f.86

173.   In relation to the CRC, the Tribunal notes that this Convention recognises the human rights of children, defined as persons up to the age of 18 years. Therefore, the CAT may be potentially applicable to the third-named applicant, who is aged approximately 4 ½ years at the time of the Tribunal’s decision in January 2018.

174.   However, as the cancellation of the applicant’s visa led to the consequential cancellation of the visa held by her spouse and child, there is little in the evidence to suggest that this family unit would be forced to break apart because one of its members was required to leave, whilst others were allowed to remain in Australia.

175.   Accordingly, the Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC, as well as its international obligations under the CAT and the ICCPR, will not be affected by the cancellation of the applicant’s visa. Therefore, the Tribunal is satisfied that there is little in these matters to support the exercise of the discretion in the applicant’s favour.

The impact on any victims of family violence:

176.   There is little in the evidence the applicant has presented to the Tribunal to indicate that she has any claim to be the victim of family violence. Consequently, the Tribunal finds that this factor is not applicable in the applicant’s circumstances. Therefore, the Tribunal is also satisfied that this matter does not point to the exercise of the relevant discretion in the applicant’s favour.

Any other relevant matters raised by the visa holder:

177.   As discussed previously, in her submission (dated 14 January 2018[84]) the applicant requested that the Tribunal allow her additional time in which to provide documents in support of the application for review. The applicant did not specify the nature of the documents she wished to submit beyond stating that she had experienced difficulties in contacting her former sponsoring employer, Makris Group Pty Ltd.

[84]    T1, f.86

178. The Tribunal notes that under paragraph 363(1)(b) of the Act it has discretion to adjourn the review from time to time. Accordingly, the Tribunal has considered the applicant’s request for additional time in which to submit documents from Makris Group Pty Ltd and whether it would be appropriate to exercise this discretion in her favour having regard to her circumstances, and the reasons and evidence she has put forward.

179. In doing so, the Tribunal also observes that it has obligations under section 353 of the Act and section 2A of the Administrative Appeals Tribunal Act 1975, which are reflected in the Tribunal President’s Direction for ‘Conducting Migration and Refugee Reviews’[85], to conduct the review in a manner that is accessible, fair, just economical, informal and quick, proportionate to the importance and complexity of the matter, and that promotes public trust and confidence in its decision.    

[85]    T1, f.73-78: - Accessed 22 November 2017: See clause 2 at T1, f.59

180. Accordingly, in considering its discretion under paragraph 363(1)(b) of the Act, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[86] and Manna v Minister for Immigration and Citizenship[87] where the Courts have held that it is not required to indefinitely defer its decision-making processes.

[86] [2002] FCA 617

[87] [2012] FMCA 28

181.   The Tribunal has also had regard to the decision in Minister for Immigration and Citizenship v Li[88] regarding the reasonableness of any request for an adjournment, as well as the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[89] that also considered this issue.

[88] [2013] HCA 18 (8 May 2013)

[89] [2014] FCAFC 1 (4 February 2014)

182.   Correspondingly, the Tribunal has taken into account the decision in Chen v Minister for Immigration and Border Protection[90] (‘Chen’s case’) where the Court upheld a decision by the Tribunal (differently constituted) not to defer its decision in relation to an application for review until the Department had finalised a business nomination application pending before it.  

[90] [2016] FCCA 2351

183.   The Tribunal further notes that in Ghori v Minister for Immigration and Citizenship[91] (‘Ghori’s case’), Perram J held that it was reasonable for the Tribunal (differently constituted) in that case, in light of that applicant’s past applications for extensions of time, to “eventually to put an end to the review process”.

[91] [2011] FCA 759 at [22]

184. Accordingly, the evidence and submissions regarding the exercise of the Tribunal’s discretion under paragraph 363(1)(b) of the Act are discussed follows:

(a)The Applicant’s Awareness of the Relevant Issues:

185.   As outlined previously, the Department issued the applicant with the NOICC on 23 May 2016[92] and the applicant responded to this notice on 25 May 2016.[93] Specifically, the notice set out for the applicant the particulars of the grounds for cancellation.

[92]    D1, f.2-5

[93]    D1, f.19-25

186.   In addition, the applicant provided a copy of the primary decision record (dated 21 October 2016) relating to the cancellation of her Subclass 457 visa with the application for review she lodged on 24 October 2016. In particular, this document also set out the grounds for the cancellation of the applicant’s visa and the delegate’s assessment of the factors that are relevant to the decision whether to cancel the visa, and the decision to do so. Accordingly, the Tribunal observes that the applicant has been aware of the reasons for the cancellation of her Subclass 457 visa for more than 14 months at the time of decision.

187. The Tribunal further notes that it issued the applicant with two combined invitations under section 359A and subsection 359(2) of the Act on 14 February 2017[94] and 15 December 2017[95] respectively, which also outlined the issues arising in her application for review. In addition, these invitations provided the applicant with an opportunity to provide information in support of her application for review. Likewise, the Tribunal wrote to the applicant on 8 January 2018 to inform her the she had lost her right to a hearing, and it provided her with a third opportunity to  provide anything she wanted taken into account for the purposes of the review.

[94]    T1, f.47-50

[95]    T1, f.56-58

188.   The Tribunal notes that the applicant responded to its first combined section 359A/359(2) invitation. This response included evidence that Makris Group Pty Ltd had lodged an application for review (AAT Case file 1618152) on 31 October 2016 in respect of the decision to refuse its business nomination application. Given this, the Tribunal adjourned the applicant’s application for review pending its decision in AAT Case file 1618152. As discussed previously, the Tribunal affirmed the decision under review in AAT Case file 1618152 on 14 December 2017.

189.   The Tribunal also observes that the applicant did not formally engage with the matters raised in its second combined section 359A/359(2) invitation as she failed to provide the information requested within the prescribed time period. Notably, the applicant only did so after the Tribunal wrote to her on 8 January 2018 that she had lost her right to a hearing.

190.   In determining whether to grant the applicant’s request for the review to be adjourned the Tribunal acknowledges that she has provided evidence in the form of payslips[96] issued to her by Sehaj Painting Services for the period 15 May 2017 to 10 December 2017 to support her claim that she has found alternative employment as a ‘Painting Trades Worker’ in Australia. 

[96]    T1, f.78-85

191.   Accordingly, the Tribunal finds that the applicant has repeatedly demonstrated to the Department and Tribunal her awareness of the importance of having a sponsoring employer given the cancellation of her Subclass 457 visa. Given this, this is not a case where the applicant lacked awareness of the issues in dispute, or where she has not had the opportunity to provide the Tribunal with information that would be relevant to the decision whether to cancel her Subclass 457 visa.

192. In the Tribunal’s view, these matters do not lend support to the exercise of its discretion under paragraph 363(1)(b) of the Act in the applicant’s favour.

(b)The Applicant’s Requests for the Review to be Adjourned:

193.   In the present matter, the applicant has made more than one request for the Tribunal to exercise its discretion to adjourn the review in her favour. 

194.   Firstly, on 28 February 2017 the applicant requested the adjournment of the review pending the finalisation of the application for review lodged by Makris Group Pty Ltd in AAT Case file 1618152, and agreed to do so.

195.   Secondly, after the Tribunal had issued the second combined section 359A/359(2) invitation to the applicant on 15 December 2017, is also wrote to her applicant on 8 January 2018 to inform her, amongst other things, that notwithstanding the loss of her right to a hearing, she remained entitled to provide any information she felt was relevant to the review until the Tribunal made its decision. It also gave the applicant until 15 January 2018 to provide written submissions and supporting material for this purpose. Notably, the applicant responded on 14 January 2018 with another request for the review to be adjourned whilst she obtained documents from Makris Group Pty Ltd.    

196. However, the applicant did not articulate in her response the nature of the documents she wished to obtain from Makris Group Pty Ltd. The Tribunal also observes that what flows from its decision in AAT Case file 1618152 is that at the time of decision Makris Group Pty Ltd does not have an approved nomination in the applicant’s favour. Accordingly, the Tribunal is not satisfied that any documents the applicant might obtain from Makris Group Pty Ltd in 2018 would add anything to the current review. As a consequence, the Tribunal is not satisfied that the applicant’s request for the review to be adjourned for this purpose supports the favourable exercise of its discretion under paragraph 363(1)(b) of the Act.

197.   Correspondingly, the Tribunal has taken into account whether the evidence of the applicant’s employment with Sehaj Painting Services since May 2017 and the letter of support from this employer [97] point to the exercise of this discretion in the applicant’s favour.  

[97]    T1, f.73-85

198.   In this case, and as noted previously, the applicant did not advise the Tribunal that she was working for this new employer until 14 January 2018, despite having made a request in February 2017 for the review to be adjourned on the basis of the application for review lodged by her previous sponsoring employer, Makris Group Pty Ltd, in AAT Case file 1618152.

199.   In addition, the Tribunal observes that the letter of support (dated 7 January 2018[98]) from Sehaj Painting Services states that it would like to continue the applicant’s employment and that it would “take necessary step [sic] to keep her in our business, even if we have to sponsor her in the future”. Significantly, despite having employed the applicant for approximately 8 months, there is little in the evidence the applicant has presented to indicate this employer has taken any steps to sponsor her for a Subclass 457 visa at the time of decision. 

[98]    T1, f.73

200. The Tribunal notes that, in terms of its statutory obligations under section 2A of the Administrative Appeals Tribunal Act 1975, at times it is not always possible at a practical level to give equal weighting to the requirements set out in this provision. For example, what is considered fair and just in one case may mean that the final decision is not always arrived at quickly. Similarly, the capacity of the Tribunal to meet these obligations at an organisational level will vary from time to time.

201.   Accordingly, the Tribunal acknowledges that this application for review has been pending for some time since it was first lodged on 24 October 2016. This is due, in part, to the Tribunal’s determination that the fairest course of action was to finalise the matter in AAT Case file 1618152 before it finalised the current application for review.

202.   Importantly, the requirement for the Tribunal to be ‘fair’ also requires it to conduct the review having regard to the procedural code set out in ‘Division 5 – Part 5 reviewable decisions: conduct of review’ of the Act, which includes subsection 359(2) and section 359C.

203. As noted previously, once an applicant fails to respond to an invitation under subsection 359(2) within the prescribed period, subsection 359C(1) applies and under subsection 360(3) the applicant is not entitled to appear before the Tribunal to give evidence and present arguments relating to the application for review. The Tribunal further notes that when sections 359C and 360 were introduced to the Act, the Explanatory Memorandum relating to these amendments indicated that the purpose of the proposed amendments was to allow the Tribunal to make a decision without any delay, if the applicant failed to provide the requested information within the prescribed period.[99] 

[99]    Migration Legislation Amendment Bill (No. 1) 1998 Explanatory Memorandum, Item 22, paragraph 37. See also Migration Legislation Amendment Bill (No. 1) 1998, Bills Digest No.44 1998-99, page 14.

204.   The Tribunal observes that this is a case where the applicant is now seeking to pursue sponsored employment with a third employer at the time of decision. Yet, there is little in the evidence to indicate that the applicant’s current employer has taken any steps to lodge the required applications with the Department to sponsor her for the Subclass 457 visa. This is in circumstances where the applicant has been aware since she was issued with the NOICC in May 2016 of the basis for the cancellation of her Subclass 457 visa and the importance of finding a new approved sponsoring employer if she wished to remain in Australia as the holder of this visa.

205.   Importantly, the Tribunal observes that if it were to adjourn the review to allow Sehaj Painting Services Pty Ltd to take the required steps to sponsor the applicant for a Subclass 457 visa then this would further delay the conduct of the review. This is because, even if Sehaj Painting Services Pty Ltd lodged applications for approval as a standard business sponsor and a business nomination in the applicant’s favour with the Department in January 2018, it is a matter of speculation as to when the Department would finalise any standard business sponsor and/or business nomination applications lodged by this employer, or what the final outcome of those applications might be.

206. Given this, the Tribunal is not satisfied that the favourable exercise of its discretion under paragraph 363(1)(b) of the Act in this case would align with the legislative objects set out in section 353 of the Act and section 2A of the Administrative Appeals Tribunal Act 1975.

207.   Consequently, against the history of this particular matter, the Tribunal considers the sentiment expressed by Perram J in Ghori’s case to be especially pertinent. This is because there is little in the evidence the applicant has presented during the review, and at the time of decision, to suggest that it would be necessarily unreasonable for the Tribunal to bring this matter to an end.

208.   Accordingly, for the reasons set out in this decision record, the Tribunal is not satisfied that it should adjourn the review as requested.

(c)The Applicants’ Personal Circumstances:

209. The Tribunal has also considered whether there is anything in the personal circumstances of the applicant and her family that would point to exercise of its discretion to adjourn the review under paragraph 363(1)(b) of the Act in her favour.

210.   The Tribunal acknowledges that the applicant has an employment background in the field of painting in Australia and that Sehaj Painting Services Pty Ltd has indicated it would like to continue her employment in its business. It notes that the evidence the applicant provided regarding her participation in the ‘Job Read Program’ relates to a potential Subclass 485 visa application. However, the applicant has not provided any evidence that she has applied for a Subclass 485 visa.

211.   The Tribunal has also taken into account the second-named applicant’s potential to contribute to the Australian community through his skills and employment. It has further considered the circumstances of the applicant’s son, the third-named applicant, given that he was born and has lived in Australia for most of his short life.

212.   In addition, the Tribunal accepts that the applicant and her family would prefer to remain in Australia, given that they have been here since 2008. As noted previously, it also understands the applicants’ personal goals and notes that they are not, as such, without merit. It further recognises that the applicants’ current circumstances hold personal significance for each of them individually and as a family unit.

213.   On the other hand, the history of this matter is that the Tribunal has already provided the applicant with more than one opportunity to provide evidence in support of the application for review. In particular, in her request (dated 14 January 2018[100]) the applicant did not specify a period of time in which she proposed to provide additional documents to the Tribunal or the nature of those documents.

[100] T1, f.86

214.   Given this, the Tribunal is not satisfied that the personal circumstances that have been put forward, whether considered on an individual or cumulative basis, constitute particularly persuasive grounds for adjourning the review for the unspecified period of time the applicant has indicated.

Summation:

215. As outlined above, in considering its discretion under paragraph 363(1)(b) of the Act, the Tribunal has had regard to the applicant’s responses and submissions to the Department and the Tribunal from May 2016 to 14 January 2018.

216. In addition, the Tribunal has taken into account that there is judicial guidance to the effect that it is not bound to defer its decision indefinitely. The Tribunal also observes that the purpose of the review process, including the discretion under paragraph 363(1)(b) of the Act, is not directed at facilitating an applicant’s ability to explore their migration options (such as an application for a Subclass 485 or any other visa) to achieve either long-term temporary or permanent residence in Australia. This is especially so where the evidence indicates that the circumstances that led to the grant of the original Subclass 457 visa no longer exist.

217.   In this case, the applicant has made repeated requests for the review to be adjourned largely based on her claims to have found a new sponsoring employer for the purposes of her Subclass 457 visa. Initially, the request was based on the application for review pending before the Tribunal in AAT Case file 1618152. By 14 January 2018 the applicant requested the adjournment because she wished to obtain further documents from Makris Group Pty Ltd and her current employer, Sehaj Painting Services Pty Ltd, wanted her to continue in her employment with it. Yet, this was in circumstances where there is little to suggest that Sehaj Painting Services Pty Ltd has lodged the relevant applications to sponsor the applicant for a Subclass 457 visa.

218.   As discussed above, the applicant’s request to adjourn the review on 14 January 2018 was for an unspecified period. It was also made in circumstances where there is a significant degree of uncertainty surrounding when Sehaj Painting Services Pty Ltd might lodge any sponsorship and business nomination applications in her favour, the processing time for such applications, and what the final outcome of these might be.

219. Therefore, the Tribunal is not satisfied that the evidence before it warrants the exercise of its discretion under subsection 363(1)(b) of the Act to adjourn the review in the applicant’s favour.

220.   Specifically, the Tribunal considers that the sentiment expressed in Ghori’s case is particularly relevant when it is being asked to adjourn the review for an unspecified period of time in circumstances where the applicant is not the subject of an approved nomination by an approved standard business sponsor, and she ceased her employment with her original sponsor almost 2 years ago. The Tribunal is not satisfied that these matters support the discharge of the Tribunal’s statutory obligations under under section 353 of the Act and section 2A of the Administrative Appeals Tribunal Act 1975

221. As a result, in the particular circumstances of this case the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further.

222.   Therefore, the Tribunal is not persuaded that the additional matters that have been raised by the applicant lend support to the favourable exercise of the cancellation discretion in this case.

CONCLUSION

223.   Based on the evidence before it and taking into account all the relevant circumstances, on balance, the Tribunal finds that the reasons for exercising the discretion not to cancel the applicant’s Subclass 457 visa do not outweigh the reasons to cancel the visa.

224.   As a result, the Tribunal concludes that the visa should be cancelled.

Ministerial Intervention

225. Although the applicant did not specifically request that the Tribunal refer the current matter to the Department for consideration by the Minister under section 351 of the Act, given the various claims she has made, the Tribunal has considered whether this would be an appropriate case in which to do so.

226.   The Tribunal takes the issue of recommending the referral of any matter to the Minister seriously. It also notes that the theme running through the relevant Ministerial guidelines on this matter is that there will always be unusual or exceptional circumstances where intervention by the Minister to grant a visa is warranted, as this would align with Australian community expectations.

227.   However, this also means that it is important to recognise that not every case is appropriate for referral, even where it may give rise to feelings of sympathy for the individuals concerned. This is because there are many applicants who fail to meet the legislative criteria for a visa and who nevertheless wish to remain in Australia.

228.   As noted previously, the Tribunal understands the applicant’s desire to remain in Australia. As a result, it does not seek to dismiss or diminish the concerns the applicant has expressed regarding the impact of the cancellation of her visa on her and her family.

229.   Nevertheless, the Tribunal gives greater weight to the underlying purpose of the Subclass 457, including the fact that at the time of decision, almost 2 years after she ceased her employment with her original sponsoring employer, the applicant is still not the subject of an approved business nomination by an approved standard business sponsor.

230.   In addition, in considering whether to refer this particular case to the Minister, the Tribunal has had regard to the Ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’. It notes that what is in the public interest is a matter for the Minister to determine. This will depend on various factors, which must be assessed by reference to the circumstances of the particular case.

231.   Importantly, the Tribunal observes that these guidelines state at paragraph 7 that cases involving the cancellation of a person’s visa due to non-compliance with their visa conditions would not meet the guidelines for referral to the Minister.   

232.   As a result, having considered the relevant Ministerial guidelines, and on the basis of the evidence that has been submitted to it, as well as for the reasons set out in this decision record, the Tribunal has decided not to refer this matter to the Minister.

233.   The Tribunal notes that the applicant can still make a request directly to the Minister.

DECISION

234.   The Tribunal affirms the decision to cancel the first-named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

235.   The Tribunal has no jurisdiction with respect to the second and third-named applicants.

Danica Buljan
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION ACT 1958 AND MIGRATION REGULATIONS 1994

Migration Act 1958

Section 116 Power to cancel

(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

(a)the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; or

(aa)the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist; or

(b)its holder has not complied with a condition of the visa; or

(c)another person required to comply with a condition of the visa has not complied with that condition; or

(d)if its holder has not entered Australia or has so entered but has not been immigration cleared — it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or

(e)the presence of its holder in Australia is or may be, or would or might be, a risk to:

(i)the health, safety or good order of the Australian community or a segment of the Australian community; or

(ii)the health or safety of an individual or individuals; or

(f)the visa should not have been granted because the application for it, or its grant was in contravention of this Act or of another law of the Commonwealth; or

(fa)in the case of a student visa:

(i)its holder is not, or is likely not to be, a genuine student; or

(ii)its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or

(g)a prescribed ground for cancelling a visa applies to the holder.

(1AA)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is not satisfied as to the visa holder’s identity.

(1AB)Subject to subsections (2) and (3), the Minister may cancel a visa (the current visa) if he or she is satisfied that:

(a)incorrect information was given, by or on behalf of the person who holds the current visa, to:

(i)an officer; or

(ii)an authorised system; or

(iii)the Minister; or

(iv)any other person, or a tribunal, performing a function or purpose under this Act; or

(v)any other person or body performing a function or purpose in an administrative process that occurred or occurs in relation to this Act; and

(b)the incorrect information was taken into account in, or in connection with, making:

(i)a decision that enabled the person to make a valid application for a visa; or

(ii)a decision to grant a visa to the person; and

(c)the giving of the incorrect information is not covered by Subdivision C.

This subsection applies whenever the incorrect information was given and whether the visa referred to in subparagraph (b)(i) or (ii) is the current visa or a previous visa that the person held.

(1AC)Subject to subsections (2) and (3), the Minister may cancel a visa (the current visa) if he or she is satisfied that:

(a)a benefit was asked for or received by, or on behalf of, the person (the visa holder) who holds the current visa from another person in return for the occurrence of a sponsorship–related event; or

(b)a benefit was offered or provided by, or on behalf of, the person (the visa holder) who holds the current visa to another person in return for the occurrence of a sponsorship–related event.

(1AD)Subsection (1AC) applies:

(a)whether or not the visa holder held the current visa or any previous visa at the time the benefit was asked for, received, offered or provided; and

(b)whether or not the sponsorship‑related event relates to the current visa or any previous visa that the visa holder held; and

(c)whether or not the sponsorship‑related event occurred.

(1A)The regulations may prescribe matters to which the Minister may have regard in determining whether he or she is satisfied as mentioned in paragraph (1)(fa). Such regulations do not limit the matters to which the Minister may have regard for that purpose.

(2)The Minister is not to cancel a visa under subsection (1), (1AA) or (1AB) if there exist prescribed circumstances in which a visa is not to be cancelled.

(3)If the Minister may cancel a visa under subsection (1), (1AA) or (1AB), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

Migration Regulations 1994

Condition 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.

(2)If the visa is not a visa mentioned in subclause (3) or (4), and subclause (1) does not apply, the holder must not:

(a)cease to undertake the activity in relation to which the visa was granted; or

(b)engage in an activity inconsistent with the activity in relation to which the visa was granted; or

(c)engage in work for another person or on the holder’s own account inconsistent with the activity in relation to which the visa was granted.

(3)If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

(a)the holder:

(i)must work only in the occupation listed in the most recently approved nomination for the holder; and

(ii)unless the circumstances in subclause (3A) apply — work only for:

(A)must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or

(B)if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor or an associated entity of the sponsor; or

(C)if the sponsor is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor; and

(aa)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.

(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.

(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.

(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.

[Tribunal emphasis]