Pathuri (Migration)

[2021] AATA 1572

Pathuri (Migration) [2021] AATA 1572 (23 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vinay Kumar Pathuri

CASE NUMBER:  2004291

HOME AFFAIRS REFERENCE(S):          BCC2019/3105664

MEMBER:L. Hawas

DATE:23 March 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa.

Statement made on 23 March 2021 at 3:12 pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – employment with the sponsor ceased over 60 days – sponsor advised applicant to seek another job or project – financial hardship – COVID-19 outbreak in India – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, Schedule 4, Public Interest Criteria (PIC) 4013, 4014; Schedule 8, Condition 8107; r 2.12

STATEMENT OF DECISION AND REASONS

Introduction

1. The applicant is a 37 year old man from India.[1] He first came to Australia in 2008 as a student but returned to India in 2009.[2] On 14 March 2018, the Department of Immigration and Border Protection granted the applicant a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa for four years to 14 March 2022.[3] The applicant returned to Australia in April 2018 on that visa.[4] By written decision dated 26 February 2020, a delegate of the Minister for the Department of Home Affairs cancelled the applicant’s visa. By this application, the applicant seeks a review of that decision. The applicant gave the Tribunal a copy of the delegate’s decision at the time he applied for this review.

   [1] The applicant was born on 23 July 1983. See delegate’s decision dated 26 February 2020 at p. 1. The applicant confirmed his date of birth at the hearing on 21 December 2020.

   [2] Applicant’s oral evidence at the hearing.

   [3] Delegate’s decision at p. 1.

   [4] Applicant’s oral evidence at the hearing.

2. The delegate cancelled the applicant’s visa under s.116(1)(b) of the Migration Act 1958 (Act) on the ground that he did not comply with condition 8107(3)(b) of his visa. That condition provided that if the applicant ceased employment with his sponsoring employer the period during which the applicant ceases employment must not exceed 60 consecutive days. The delegate found that the applicant ceased employment with his sponsoring employer on 31 October 2018 and that he ceased that employment for more than 60 consecutive days in breach of condition 8107(3)(b). [5] After considering the matters relevant to the delegate’s discretion to cancel the applicant’s visa the delegate decided to cancel the visa.

   [5] Delegate’s decision at pages 2 and 3.         

3. The applicant has now applied to this Tribunal for a review of that decision.

4. Accordingly, in this review, the Tribunal must decide whether the ground for cancelling the applicant’s visa is made out, and if so, whether the visa should be cancelled.  

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

Procedural matters

1.  6.      The applicant appeared before the Tribunal on 21 December 2020 to give evidence and present arguments. Before the hearing began the applicant told the Tribunal that he will not be represented at the hearing by a lawyer or migration agent and that he would be proceeding with the hearing on his own. The applicant confirmed that at the beginning of the hearing.

1. The hearing was held during the COVID-19 pandemic. The Tribunal exercised its discretion to hold the hearing by video conference (Microsoft Teams). The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick. The hearing of the matter would have been delayed if it was not to be conducted by video conference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments at the hearing.

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

1. The Minister or the Tribunal (on review) may cancel a visa under s.116(1)(b) of the Act if satisfied that the visa-holder has not complied with a condition of the visa.

2. Here, the applicant’s visa contained condition 8107(3)(b), which provided that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.[6]

   [6] Delegate’s decision p.2 and the department’s records on the Integrated Client Services Environment (ICSE).

3. The Tribunal has the following evidence before it relevant to whether the applicant has not complied with condition 8107(3)(b) and whether the ground to cancel the applicant’s visa under s. 116(1)(b) has been made out:

   (a)The applicant was granted his 457 visa on 14 March 2018. The term of the visa was four years to 14 March 2022.[7] At the time the delegate cancelled the applicant’s visa the standard business sponsor who sponsored the applicant for his 457 visa was Aurec Pty Ltd (Aurec).[8] The applicant’s approved occupation with Aurec was as a developer programmer;[9]

   [7] Delegate’s decision at p. 1.

   [8] Delegate’s decision at p. 2 and applicant’s pre-hearing submissions.

   [9] Delegate’s decision at p. 3. At the hearing the applicant said he worked for Aurec as a software engineer.

   (b)Aurec (or the group of companies of which it is part) operates an information technology business that offers a diversified range of services to clients including recruitment, sector specific services, contract management, payroll management, and training courses;[10]

   [10] Applicant’s oral evidence at the hearing and applicant arrived in Australia in April 2018 and commenced work for Aurec in May 2018 as a software engineer;[11]

   [11] Applicant’s oral evidence at the hearing.

   (d)There were many companies for whom Aurec did work or completed projects. Many companies work “under Aurec”. Part of Aurec’s business model was that it sourced qualified employees and then sent them to work for client companies or businesses. Some of those employees were people on 457 visas. During his time at Aurec, the applicant was often required to work for companies other than Aurec;[12]

   [12] Applicant’s oral evidence at the hearing.

   (e)Although the applicant was sponsored by Aurec, he actually worked for another company for whom Aurec sent him to work.[13] During his time with Aurec, the applicant worked on a “debtor transfer” project for the company for whom he actually worked whereby debtor details were transferred from server storage to cloud storage;[14]

   [13] The applicant was not able to tell the Tribunal the name of that company.

   [14] Applicant’s oral evidence at the hearing.

   (f)That project was completed in September 2018;[15]

   [15] Applicant’s evidence at the hearing.

   (g)During his time at Aurec, the applicant reported to a person by the name of Shiva Asharn. Mr Asharn was a migration agent and also a principal at Aurec. Once the project was complete, somebody at Aurec[16] told the applicant that as the debtor transfer migration project was complete, the applicant will need to look for another job or project for him to work on. If the applicant located another job or project, Aurec would continue to sponsor the applicant so he could work in that job or on that project. But if he could not locate another job or project Aurec would not continue to sponsor him;[17]

   [16] The applicant was not clear on whether that was Mr Asharn or somebody else.

   [17] Applicant’s oral evidence at the hearing.

   (h)Subsequently, the applicant  began looking for further work. He attended Skype interviews with Telstra and “Wikpro” but was not able to secure an offer of employment from them. They told him they did not want to employ someone on a 457 visa. They wanted someone on a permanent visa. The applicant tried to find work in the banking sector but all the prospective employers he spoke to told him they wanted permanent residents not people on temporary visas. He also tried to find work with smaller companies but was not successful;

   (i)The applicant’s last payslip from Aurec was on 18 October 2018;[18]

   (j)At some point an ‘immigration person” he spoke to told him that he had ten days to normalise his employment status. Subsequently, he spoke again to management at Aurec and pleaded with them not to terminate his employment and have his visa cancelled. The person or people he spoke to at Aurec told him they wanted $25,000 from him to prevent his visa being cancelled. They promised that if he paid the $25,000 they would guarantee him a two year visa. He did not have the money to pay;[19]

   (k)Aurec advised the department on 27 November 2018 that the applicant had ceased employment with it on 31 October 2018.[20] Aurec gave that information to the department by email sent to “NSW Sponsor Monitoring” on 27 November 2018;[21]

   (l)By notice to the applicant of intention to consider cancellation of his visa dated 31 January 2020, the Department of Home Affairs stated Aurec had advised the department the applicant ceased employment with it effective 31 October 2018. The department stated that the applicant ceasing employment appeared to constitute a breach of condition 8107(3)(b) of his 457 visa and constituted a ground to cancel his visa under s. 116(1)(b) of the Act. The department asked the applicant to comment on that ground for cancellation and to give reasons why his visa should not be cancelled;[22] 

   (m)The department did not receive from the applicant a response to the notice of intention to consider cancellation of his visa;[23]

   (n)The applicant accepted that he ceased his employment with Aurec by 31 October 2018 and that he did not resume work with Aurec or any other employer for the following 60 consecutive days but he did look for work;[24]

   (o)In the cancellation decision, the delegate found that on 27 November 2018 Aurec advised the department that the applicant’s employment with it ceased on 31 October 2018. The delegate found the applicant’s employment with Aurec ceased on that day and the employment ceased for more than 60 days;[25]

   (p)At the time of the delegate’s decision a new application to nominate the applicant for a visa had not been made nor approved;[26]

   (q)The delegate found that because of the matters set out in paragraphs 10(o) and (p) above the applicant breached condition 8107(3)(b) of his visa;[27] and

   (r)The applicant accepted that he knew it was a condition of his visa that he could not cease employment with Aurec for more than 60 consecutive days.[28]

   [18] Applicant’s oral evidence at the hearing.

   [19] Applicant’s oral evidence at the hearing.

   [20] Delegates decision at p. 2.

   [21] The letter is in the department’s file.

   [22] The notice is on the department’s file.

   [23] Delegate’s decision at p. 2.

   [24] Applicant’s oral evidence at the hearing.

   [25] Delegate’s decision at p. 2.

   [26] Delegate’s decision at p. 2.

   [27] Delegate’s decision at pages 2 and 3.

   [28] Applicant’s oral evidence at the hearing.

4. In this case, for the power to cancel the applicant’s visa to be enlivened under s. 116(1)(b) of the Act for breach of condition 8107(3)(b), he must have ceased employment with Aurec and not resumed employment within the following 60 consecutive days.

5. On the evidence before the Tribunal, it is plain that the applicant’s employment with Aurec either ceased on 31 October 2018 or had ceased by that date. The applicant’s employment did not subsist beyond that date. Aurec advised the department that the applicant ceased work with it on 31 October 2018 and the applicant accepted at the hearing that come 31 October his employment with Aurec had ceased. Also, the evidence establishes that the applicant did not resume employment with Aurec (nor any other employer) for the following 60 consecutive days.

6. For those reasons, the Tribunal finds that the applicant breached condition 8107(3)(b) of his visa and the power to cancel his visa under s.116(1)(b) has been made out.

7. The Tribunal considers the applicant’s breach of condition 8107(3)(b) of his 457 visa to be serious. After ceasing work with Aurec, the applicant was not able to secure another application to sponsor him for a visa. The Tribunal returns to that matter below. 

Consideration of the discretion to cancel the applicant’s visa

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

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

1. During the hearing, the applicant said that:

   (a)He completed a Master of Business Administration at Nagarjuna University in India in 2007;

   (b)He first came to Australia on a student visa in 2008;

   (c)While in Australia on that visa he studied for certificates III and IV in hospitality management at Hales Institute. He completed the certificate III but he returned to India in 2009 before he could complete the certificate IV because his father passed away;

   (d)He returned to Australia in April 2018 on his 457 visa to work for Aurec;

   (e)He has been hampered in finding a nominating employer by the COVID-19 related business shutdowns and interruptions;

   (f)He does not currently have a right to work in Australia. He is borrowing $2,000 per month from friends and family both in India and in Australia in order to support himself. He has accrued a debt of $18,000 to $20,000;

   (g)Once the coming Christmas and New Year Holiday period passes he will find a new nominating employer;

   (h)He wants to remain in Australia now to search for a new nominating employer and ultimately fulfil his dream of remaining in Australia permanently. He is hopeful of finding a new job after the coming holiday period; and

   (i)He applied for permanent residency about a year ago but has not heard anything about the application.

2. A 457 visa is a temporary visa that provides for skilled people (and their immediate families) to come to Australia to work for an approved employer for up to four years. The visa operated on the premise that it would not undermine job opportunities for Australians. The 457 scheme allowed visa holders to fill roles where there was a genuine skills shortage or, in effect, where a suitably qualified Australian worker is not available.[29]

   [29] Larsen G; The subclass 457 Visa: a quick guide; Parliament of Australia at >

   The applicant’s stay in Australia on his 457 visa was for the purpose of working for Aurec to fill a need that employer had for a developer programmer (or software engineer ), which it could not fill with a suitably qualified Australian worker. When the applicant ceased his employment with Aurec on (or by) 31 October 2018, given condition 8107(3)(b) of his visa, he effectively had 60 days to locate another sponsoring employer in order to remain within the conditions of his visa. On his evidence, he began looking for a new employer in about October 2018 but was not able to locate another sponsoring employer (or secure a new application to nominate him for a visa) within 60 days of ceasing employment with Aurec. The applicant then fell into breach of condition 8107(3)(b) of his visa. From that point, the applicant’s continued stay in Australia on his 457 was in tension with the purpose of that visa.

3. Despite searching for a new sponsoring employer the applicant has to date not been able to secure a new nomination. Although condition 8107(3)(b) of the applicant’s 457 visa contemplated that he would have some time (60 days) to locate a new sponsoring employer after his employment ceased, it did not contemplate the applicant remaining in Australia for such an extended period – now over two years since he ceased employment with Aurec – to search for work. That purpose (extended search for work) is not consistent with the purpose of the applicant’s visa.

4. The applicant wishes to remain in Australia even longer now to continue his search for work. That ultimately counts against him in this review. Remaining in Australia to search for work is not consistent with the purpose of his 457 visa.

5. The applicant has now had well over 60 days from the time his employment with Aurec ceased, and thus a reasonable opportunity, to locate a new sponsoring employer in Australia but has been unable to do so.

6. Accordingly, the Tribunal weighs the following matters heavily in favour of cancelling the applicant’s visa:

   (a)The seriousness of the applicant’s breach of condition 8107(3)(b) of his visa – the applicant ceased employment with Aurec on (or by) 31 October 2018 and has not to date secured a new nomination application;

   (b)The applicant has now had a reasonable opportunity to secure a new nomination but has not been successful; and

   (c)The applicant’s wish to remain in Australia even longer to search for a new nominating employer is not consistent with the purpose of his 457 visa.

7. The applicant has claimed that he wants to remain in Australia on his 457 visa as a means of ultimately securing permanent residency in Australia and all the benefits that entails. He said that he had applied for permanent residency but did not receive a response. It is not clear to the Tribunal what the applicant meant by applying for permanent residency but the Tribunal understood the evidence to be part of the applicant’s wider claim that ultimately wants to remain in Australia permanently.

8. The Tribunal weighs that claim that against cancelling the applicant’s visa. But the weight the Tribunal places on the claim is limited. Although the Tribunal acknowledges that a 457 visa is often a pathway to permanent residency in Australia (and all the benefits that affords including economic opportunity), hence the weight the Tribunal has given the claim (albeit limited), the 457 visa is a temporary visa that does not come with any guarantee or express representation of permanent residency. Strictly, remaining in Australia to explore permanent residency avenues is not consistent with the purpose of the applicant’s 457 visa.

9. Insofar as the applicant claims that he wants to remain in Australia to earn an income in order to pay off his debts (because he will not be able to earn the same income in India and might not be able to pay off his debts) the Tribunal weighs that against cancelling the applicant’s visa but the weight is limited. Although remaining in Australia to work for a nominating employer to fill a skills shortage (being consistent with the purpose of a 457 visa) has the collateral benefit of yielding a decent income in Australia, deriving income for the purpose of paying off personal debts is not strictly the purpose of a 457 visa.

10. The Tribunal has taken into account the impact of the COVID-19 pandemic and the resulting business shutdowns and interruptions in Victoria from about March 2020. Those matters would have hampered the applicant’s search for a new employer. The Tribunal weighs that against cancelling the applicant’s visa. But again, the weight the Tribunal places on that matter is reduced by the length of time the applicant has had in Australia after ceasing employment with Aurec – being now over two years – to locate a new employer, which time was not all impacted by COVID-19 related business shutdowns.

1. Under this purpose-of-the-457-visa head, the Tribunal has weighed the matters set out in paragraph 22 above heavily in favour of cancelling the applicant’s 457 visa. The Tribunal has weighed the matters set out in paragraphs 23 to 26 above against cancelling the visa. Those matters mitigate the weight the Tribunal places on the matters in paragraph 22 above but do not outweigh them entirely.[30]

   [30] Note it appears the applicant has now left Australia. See paragraph 46 below. The Tribunal has analysed the matters under this head on the grounds that if the cancellation decision were set aside the applicant will be entitled to return to Australia on his visa.

2. Otherwise, the Tribunal does not consider the applicant to have a compelling need to remain in Australia.

The extent of compliance with visa conditions

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

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

1. If the applicant’s 457 visa is cancelled, subject to any application he might make to extend his stay in Australia, he will not have the authority to remain and he will have to return to India.

2. The applicant claims he will suffer the following instances of hardship if his visa is cancelled and he must return to India:

   (a)His mother is in India;[31]

   (b)Before the applicant’s 457 visa was cancelled his wife held a secondary visa and she was in Australia with him. She returned to India in February 2020 before the cancellation of his visa.[32] His wife is living with his mother in India. He has no other family in Australia;[33]

   (c)He is borrowing $2,000 a month from friends in Australia and India in order to survive in Australia given he is not working. He owes them about $18,000 - $20,000. During the time he has been in Australia and not working he has not been able to send money to his mother (and wife) in India in order to support them. His wife is not working in India and she relies on him to support her;[34] and

   (d)If he must return to India he will find it difficult to locate work. There have been too many people who have lost their jobs in India (and consequently looking for work) because of the COVID-19 pandemic. His wife, who is also a software engineer, will also have difficulty finding work for the same reason.

   [31] Applicant’s pre-hearing submissions.

   [32] Although the applicant’s wife held a secondary 457 visa she is not a co-applicant to this review.

   [33] Applicant’s oral evidence at the hearing and p.4 of the delegate’s decision.

   [34] Applicant’s oral evidence at the hearing.

3. The Tribunal accepts that the applicant will suffer the claimed instances of hardship if his visa is cancelled and he is required to return to return to live in India. It accepts that if the applicant returns to live in India he will encounter some difficulty finding work, especially given the current COVID-19 pandemic. It also accepts that even if he finds work in India quickly he will earn less money than he will if he works in Australia. That will reduce his capacity to repay the debts he has incurred and it will reduce his capacity to support his wife and mother. Accordingly, the cancellation of the applicant’s visa necessitating his return to India will visit some hardship on the applicant’s wife and mother. Further, the Tribunal accepts the applicant’s wife (who is currently not working in India) will encounter more difficulty finding work in her field in India than would have been the case had she been able to remain in Australia on a 457 visa. Also, if she finds work in India it will not be as well remunerated as work in Australia would have been. That constitutes another instance of economic hardship to the applicant’s wife by reason of the cancellation of the applicant’s visa.  The Tribunal weighs those matters against cancelling the applicant’s visa.

4. But to be balanced against that are several matters. First, the applicant has not worked in Australia and earnt an income since October 2018 when he ceased work with Aurec. There is no evidence before the Tribunal of the applicant having secured an application to nominate him for a visa let alone an approved nomination. At the hearing the applicant said that he was hopeful of finding work after the 2020/2021 holiday period. The applicant has not since advised the Tribunal that he has found new work or that a new employer has applied to nominate him for a visa. So returning to live in India will not immediately result in the applicant losing a current income (if he was currently working) or an imminent income (if he had secured a new nomination with the promise of work shortly). The applicant’s financial hardship claim would carry more weight if he was working in Australia or had secured a new nomination (or even an application to nominate him). Second, the applicant has been in Australia for a relatively short period; he came in April 2018. Previously he had spent a year or so in Australia in 2008/2009. Otherwise, he has lived in India. In those circumstances, it will not be as difficult for the applicant to re-establish himself in India (both professionally and socially) than would have been the case had the applicant been in Australia (and away from India) for say over a decade. Third, the applicant is still relatively young. That can only assist him in re-establishing himself in India. Further, in relation to COVID-19, it is a worldwide pandemic that has had global impacts. It’s impact is not limited to Australia. The applicant claimed the pandemic impacted his search for work in Australia and that it will impede his search for work in India as well. Those matters reduce the weight the Tribunal places on the applicant’s hardship claims.

5. On balance, the applicant’s hardship claims weigh against cancelling the applicant’s visa, although their weight is reduced by the matters set out in the preceding paragraph.

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

1. The applicant claims he ceased employment with Aurec in the circumstances set out in paragraphs 10(b) to (k) above.

2. The Tribunal does not have much evidence before it relevant to this head. It only has the applicant’s oral evidence given at the hearing. The only evidence from Aurec before the Tribunal is the email of 27 November 2018 to NSW Sponsor Monitoring to the effect that the applicant ceased employment with Aurec on 31 October 2018. That email is in neutral terms. By the email Aurec states only that “sponsorship cessation” took place on 31 October 2018. The email says nothing about the circumstances in which Aurec’s “sponsorship” (or in substance employment) of the applicant ceased or the reason that occurred. The Tribunal notes that the applicant’s 457 visa was granted on 14 March 2018. The applicant said that he commenced work for Aurec in May 2018. Therefore, his time with Aurec was brief; it lasted for about six months until October 2018.

3. The only evidence before the Tribunal explaining the applicant’s brief time working for Aurec is that given by the applicant at the hearing as set out in paragraphs 10(b) to (k) above. The applicant’s evidence is to the effect that Aurec behaved opportunistically and exploited him by employing him to complete the debtor transfer project. When that project was completed Aurec placed the responsibility on the applicant either to source another project for Aurec upon which the applicant could work or find himself a job with another company who worked under Aurec in order for Aurec’s sponsorship to continue. When the applicant was not able to source more work Aurec terminated his employment. Further, when he pleaded with Aurec not to terminate him, which would have the effect of putting him in breach of condition 8107(3)(b) of his visa, he was met with a demand for $25,000 to save his visa. Those matters are not inconsistent with the applicant’s employment terminating so quickly after it commenced. On the limited evidence before the Tribunal, it accepts that the applicant’s employment ceased in circumstances that were beyond his control. It is unlikely that he would have left voluntarily so quickly after commencing employment and Aurec has not stated that the applicant was terminated for say want of performance. But by making that finding the Tribunal stresses that it has not heard any evidence from Aurec. It accepts Aurec may have a different explanation for the applicant’s employment terminating so quickly after it commenced. The Tribunal finds only that on the limited evidence before it the applicant’s employment ceased due to circumstances beyond his control as he has claimed.

4. The Tribunal also acknowledges the vulnerable position in which employees on 457 visas find themselves when dealing with an unscrupulous employer. This Tribunal is often confronted with claims that an employer has demanded that its 457 employee pay money as the price for the continuation of the visa. An employee in that position will not want to lose his employment to avoid falling foul of condition 8107(3)(b) (as well as other conditions) and will want the employer’s cooperation to assist with obtaining permanent residency given a 457 visa is often a pathway to that status.      

5. The Tribunal weighs the matters in paragraphs 37 and 38 above against cancelling the applicant’s visa. 

Past and present behaviour towards the Department   

1. In the cancellation decision, the delegate noted that the applicant did not “engage in the cancellation process” including by not responding to the notice of intention to consider cancellation of his visa dated 31 January 2020. The delegate weighed the applicant’s claimed failure to engage in favour of cancelling his visa.

2. A visa holder is not required to respond to a notice of intention to consider cancellation of a visa. Such a notice constitutes an invitation to the visa holder to comment on the claimed grounds for cancellation. A visa holder is not compelled to respond and can legitimately choose not to respond. Of course, each case is to be determined according to its own facts but the Tribunal does not agree that the applicant’s failure to respond to the notice of intention to cancel here should be weighed against the applicant. The Tribunal does not weigh the applicant not responding to the notice of intention to cancel in favour of cancelling the applicant’s visa or in any way against the applicant.

3. Otherwise, assuming all of the factual matters upon which the delegate relies to conclude that the applicant did not engage with the cancellation process are true, the Tribunal does not agree with the delegate that those matters and a “failure to engage with cancellation” are to be weighed in favour of cancelling the applicant’s visa. As a general observation, a visa holder is not required to engage with cancellation. Often, it will be in a visa holder’s interest to do so in order to persuade the department not to cancel. But it is not clear why a failure to engage should always be held against a visa holder. It is not clear why any failure by the applicant to engage with cancellation here (which finding the Tribunal does not make in any event) should be weighed against the applicant. The Tribunal considers that any failure by the applicant to engage with cancellation here should not be weighed in favour of cancelling the applicant’s visa or in any way against the applicant and it does not do so.

4. The delegate relied on one historical matter under this head. The delegate stated that a maritime crew visa held by the applicant was ceased in 2014 when he was found not to have been a bona-fide crew member or that he did not hold a genuine offer of employment as a crew member of the ship. There is nothing on the department’s file about that historical matter. Assuming what the delegate stated was correct, the matter was dealt with and finalised in 2014. Plainly, it was not an impediment to the grant of the applicant’s 457 visa on 14 March 2018. It does not have any direct bearing on the ground to cancel the applicant’s 457 visa now for breach of condition 8107(3)(b), the purpose of the visa, the circumstances in which the visa was cancelled and the other matters the Tribunal considers to be relevant to this review. The Tribunal does not weigh that historical matter in favour of cancelling the applicant’s visa or in any way against the applicant.        

5. The Tribunal does not consider any of the matters relied on by the delegate under this head to support an argument or conclusion that the applicant has not cooperated with the department or has otherwise misbehaved towards it. Otherwise, there is no relevant evidence before the Tribunal that the applicant has not cooperated with the department or has otherwise misbehaved towards it. The Tribunal has weighed that against cancelling the applicant’s visa.

Whether there would be consequential cancellations under s. 140

1. The 457 visa held by the applicant’s wife was cancelled consequentially because of the cancellation of the applicant’s visa.[35] As the applicant said at the hearing, his wife is in India living with his mother. If the applicant’s visa is cancelled, and subject to some other application he might make for authority to remain in Australia, he will need to return to India to live. In that event, he will be reunited with his wife. There is no evidence that the cancellation of the applicant’s visa would result in the separation of the applicant from his wife. Accordingly, this consideration is neutral. In relation to any hardship the applicant’s wife will suffer by reason of the cancellation of the applicant’s visa, the Tribunal has considered that in paragraphs 30 to 34 above.

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

[35] Delegate’s decision at pages 5 and 6.

1. The Tribunal has become aware that the applicant left Australia on 11 February 2021. Before he left, he was on a bridging visa E granted on 20 January 2021. That was the first bridging visa the applicant has held after his 457 visa was cancelled on 26 February 2020. The bridging visa ceased when the applicant left Australia.

2. Accordingly, it is not necessary to consider whether the cancellation decision will result in detention or removal action. The applicant apparently left of his own accord. It is also not necessary to consider the potential impact of s. 48 of the Act. That section prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s. 116 of the Act, may apply for certain prescribed classes of visas but not others in Australia. Regulation 2.12 of the Regulations prescribes the classes of visas. Consequently, this limits what visa applications the applicant can make whilst onshore. The applicant has now left Australia and section 48 will not apply. Those matters have a neutral impact on this review.  

3. The Tribunal has considered the potential impact of Public Interest Criteria (PIC) 4013 and 4014 on the applicant.

4. The cancellation of the applicant’s visa will not attract the necessary risk factors to invoke PIC 4013. That has a neutral impact on this review. 

5. PIC 4014 provides that a visa holder will be affected by a risk factor if the person left Australia as an unlawful non-citizen or the holder of certain bridging visas including a bridging visa E. The risk factor will not operate if the visa holder left Australia within 28 days after the substantive visa ceased to be in effect or a while on a bridging visa granted within 28 days after the substantive visa ceased to be in effect. If it applies, PIC 4014 will effectively bar the visa-holder from obtaining another visa unless the application is made more than three years after the person left Australia or there are compelling circumstances affecting Australia, or compassionate or compelling circumstances affecting the interests of an Australian resident, justifying the grant of a visa within three years after departure. As the applicant’s bridging visa E was granted on 20 January 2021, and that is more than 28 days after the applicant’s 457 visa ceased to have effect on 26 February 2020 (when the delegate cancelled it), it appears PIC 4014 will apply to the applicant. That could affect any visa application the applicant makes from offshore in the next three years. If PIC 4014 applies to the applicant, the Tribunal has also considered the possibility that the applicant will not be able to make out the necessary compelling or compassionate circumstances justifying a visa grant in order to obtain a visa in the next three years. The Tribunal has weighed those matters in the applicant’s favour; it has weighed them against cancelling the applicant’s 457 visa.

6. To be clear, the Tribunal does not consider the applicant apparently having remained in Australia without a visa between 26 February 2020, when his 457 visa was cancelled, and 20 January 2021, when he obtained his bridging visa E, to be adverse to his position in this review. The Tribunal does not consider the information to be adverse because come the time of this decision the applicant had obtained a bridging visa E and had regularised his visa status in Australia before leaving. The Tribunal has not weighed the applicant’s stay in Australia for a while without a visa in favour of cancelling the applicant’s visa. That is not a reason or part of the reason for affirming the delegate’s cancellation decision. To the contrary, as set out in the preceding paragraph, that the applicant did not obtain a bridging visa E until after 28 days from visa cancellation has likely invoked the application of PIC 4014. The Tribunal has weighed the consequences of PIC 4014 applying to the applicant against cancelling his visa.    

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

1. The Tribunal has considered Australia’s international obligations including its non-refoulement, family unity, and best interests of the children obligations. Those obligations are not engaged by the cancellation of the applicant’s visa. They have a neutral impact on this review.

Conclusion on discretion

1. The Tribunal has considered all the evidence before it carefully and all the matters in favour of cancelling the applicant’s visa and all the matters that weigh against that outcome.

2. The Tribunal considers the applicant’s breach of condition 8107(3)(b) of his visa to be a substantial one. After ceasing employment with Aurec on (or by) 31 October 2018 he was not able to secure a new nomination application. The Tribunal weighs the matters set out in paragraph 22 above heavily in favour of cancelling the applicant’s visa.

3. On the evidence before it, the Tribunal has also weighed several matters against cancelling the applicant’s visa as set out above. In particular, the Tribunal has examined the circumstances in which the grounds for visa cancellation arose and has found that those circumstances were beyond the applicant’s control. The Tribunal has weighed that against cancelling the applicant’s visa. The Tribunal acknowledges that the ‘General visa cancellation powers’ departmental policy provides that, as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose was beyond the visa holder’s control. That is not a rule of inflexible application but a general rule expressed in departmental policy. The Tribunal has taken it into account and weighed it in the applicant’s favour. It has also weighed in the applicant’s favour the apparent application of PIC 4014 to the applicant, which could hamper a visa application he makes in the next three years.

1. But the Tribunal considers that, on balance, the matters that weigh against the Tribunal cancelling the applicant’s visa (including that the applicant ceased employment with Aurec in circumstances that were beyond his control) do not outweigh the matters set out in paragraph 22 above. The Tribunal concludes that the correct and preferable exercise of its discretion favours affirming the delegate’s decision to cancel the applicant’s 457 visa.

DECISION

1. The Tribunal affirms the decision to cancel the applicant’s Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa.

   L. Hawas
   Senior Member