Rahman (Migration)

Rahman (Migration) [2018] AATA 3731 (29 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mahbubar Rahman
CASE NUMBER:  1701266
HOME AFFAIRS REFERENCE(S):           BCC2016/3971615
MEMBER:Alison Mercer
DATE:29 June 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Statement made on 29 June 2018 at 11:34am

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) visa – Sponsoring employer ceased – Contacted the Department about his circumstances – Stayed more than 16 months without an approved sponsor – Applied for a student visa – Found a new employer – Desire to stay permanently not a compelling reason – Hardship – Evidence not provided – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 48, 189, 198, 116, 140
Migration Regulations 1994 r 2.43 Schedule 2 cl 457.223 Schedule 4 PIC 4013 Schedule 8 Condition 8107
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 20 January 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant breached condition 8107 of his subclass 457 visa, which required (amongst other things) that he not cease work for his original sponsoring employer for more than 90 calendar days. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The Tribunal received a review application from the applicant on 25 January 2017, which was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Venkata Tanari, as his representative and authorised recipient for correspondence.
On 3 April 2018, the Tribunal invited the applicant to attend a hearing on 15 May 2018.
The applicant appeared before the Tribunal on 15 May 2018 to give evidence and present arguments.
Following the hearing, he provided a letter from his current employer on 25 May 2018.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Departmental history
The Department’s records indicate that the applicant was granted a subclass 457 visa on 24 November 2017, valid until 24 November 2018. This visa was subject to condition 8107, which provides as follows (Tribunal’s emphasis in bold font):
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) (as in force before 18 March 2018):
(a) the holder:
(i) must work only in the occupation listed in the most recently approved nomination for the holder; and
(ii) unless the circumstances in subclause (3A) apply:
(A) must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or
(B) if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor or an associated entity of the sponsor; or
(C) 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) subject to paragraph (c), the holder must:
(i) if the holder was outside Australia when the visa was granted—commence work within 90 days after the holder’s arrival in Australia; and
(ii) if the holder was in Australia when the visa was granted—commence work within 90 days after the holder’s visa was granted; 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:
(i) must hold the licence, registration or membership while the holder is performing the occupation; and
(ii) if the holder was outside Australia when the visa was granted—the holder must hold that licence, registration or membership within 90 days after the holder’s arrival in Australia; and
(iii) if the holder was in Australia when the visa was granted—the holder must hold that licence, registration or membership within 90 days after the holder’s visa was granted; and
(iv) must notify the Department, in writing as soon as practicable if an application for the licence, registration or membership is refused; and
(v) must comply with each condition or requirement to which the licence, registration or membership is subject; and
(vi) must not engage in work that is inconsistent with the licence, registration or membership, including any conditions or requirements to which the licence, registration or membership is subject; and
(vii) must notify the Department, in writing as soon as practicable if the licence, registration or membership ceases to be in force or is revoked or cancelled.
…
The Department’s records further indicate that the applicant was nominated for this visa as a Cook by his sponsoring employer, Saidul Haque Pty Ltd, whose nomination of the applicant was approved on 24 November 2014.
The Department sent a Notice of Intention to Consider Cancellation (NOICC) to the applicant on 4 January 2017, on the basis that he was considered to have breached condition 8107(3)(b) of his visa and therefore also breached s.116(1)(b) of the Act. The letter stated that it appeared that the applicant had ceased work with his sponsoring employer for more than 90 consecutive days as the applicant himself had advised the Department on 22 September 2016 that he ceased employment there on 2 September 2015. The applicant was given 5 working days to respond.
The applicant provided a response on 8 January 2017, in which he confirmed that he was working for Saidul Haque Pty Ltd (trading as Tucker Box Diner) as the holder of a subclass 457 visa, but due to a change of ownership of the business on 2 September 2015, he lost his job. The applicant stated that he was aware of condition 8107 and that his visa was going cease after 90 days once he lost that employment. He therefore applied for a student visa on 30 September 2015. The applicant further stated that his aim was to open a restaurant in his own country, and that he had applied for the student visa to undertake a marketing course to gain skills to promote this and hopefully gain more cooking experience as well. The applicant said that after making his student visa application, he received an automatic reply from the Department advising him that he had been granted a bridging visa, and that he had followed its conditions. After a long wait, his student visa was refused on 5 September 2016. A few days later, he checked his visa status on the Department’s VEVO online system and discovered that he still held a subclass 457 visa. After that, he called the Department to clarify his status and to advise that he was no longer working for his original employer. He states that he was told his subclass 457 visa would be ceased soon, and that he should find another employer who could sponsor him for the subclass 457 visa.
The applicant further stated that before his subclass 457 visa was cancelled, he was applying for cooking positions online and in newspapers to gain experience. He was given an interview for a Cook job in Wagga Wagga region, but the owner told him that he wanted someone local and the applicant had already moved to Melbourne. However, after a few weeks the owner called the applicant and told him that he could not find anyone to fill the position on a full time basis due to the fact that it was based in a regional area and on a highway. The applicant stated that he had never breached any conditions since coming to Australia, and the cessation of his original employment was due to circumstances beyond his control. He said that his dream was to gain more experience as a Cook and his proposed employer, Alama Traders 2 Pty Ltd, had already lodged a nomination of him with the Department. The applicant attached a copy of the Departmental acknowledgement of this, dated 22 December 2016.
On 20 January 2017, a delegate made a decision to cancel the applicant’s subclass 457 visa on the basis that he had breached s.116(1)(b) of the Act by not complying with condition 8107 of his subclass 457 visa and the grounds in favour of cancellation outweighed those against cancelling the visa.
In reaching this conclusion, the delegate found that the applicant had breached condition 8107(3)(b) as more than 90 consecutive days had elapsed since the applicant (by his own admission) ceased work for Saidul Haque Pty Ltd on 2 September 2015, and his nominated occupation of Cook was not exempt from having to comply with condition 8107(3)(b). The delegate noted that the applicant’s student visa application, made on 30 November 2015, was refused on 5 September 2016. She further noted that a new employer, Alama Traders 2 Pty Ltd, had lodged a nomination of the applicant as a Cook with the Department on 22 December 2016, but this had not yet been assessed. Having found that a ground for cancellation pursuant to s.116(1)(b) had been established, the delegate then considered several relevant factors in order to determine whether to exercise the discretion not to cancel the visa.
The delegate considered the purpose of the applicant’s travel to, and stay in, Australia. She noted that he was granted the subclass 457 visa to fill a skill shortage and to work in Australia for an approved sponsor in a skilled occupation for which he was specifically nominated, and which could not be filled locally. In the event that his employment with his sponsoring employer ceased, he had 90 consecutive days to resolve his status. The delegate found that the applicant ceased employment with his original employer on 2 September 2015 and had remained in Australia as the holder of a subclass 457 visa for more than 16 months without an approved sponsor. He had not secured a new approved nomination (although it was acknowledged there was a new nomination application of him by another employer pending with the Department). However, he had not been granted another visa nor had he left Australia after ceasing his original employment. The delegate gave this consideration little weight in the applicant’s favour.
In relation to the extent of which the applicant had complied with any conditions subject to which his visa was granted, the delegate found that he had breached condition 8107(3)(b). Although the applicant had stated that he believed that he held a bridging visa once he had lodged his student visa application in late 2015, the delegate noted that the bridging visa grant letter specifically stated that he still held a subclass 457 visa at that time. She further noted that in any case, his bridging visa was also subject to condition 8107. The delegate therefore did not accept that the applicant was unaware that he held a subclass 457 visa and that he was subject to condition 8107. She further found that his breach of condition 8107(3)(b) of more than 16 months was significant.
The delegate noted that the applicant had not provided any information about the degree of hardship which might be caused to him or his family members if the visa was cancelled. The delegate acknowledged that some hardship might be caused to the applicant should he be required to depart Australia, but noted that he would be eligible to apply for a bridging visa E which would allow him to remain for a period to finalise his affairs before departing Australia. The delegate further found that if the visa was cancelled, the applicant would become an unlawful non-citizen and might be liable for deportation or removal under ss189 and 198 of the Act if he did not depart voluntarily. Moreover, he would be subject to s.48 of the Act, which meant he would have limited onshore visa application options. However, the delegate found that the applicant would not be subject to an exclusion period under PIC 4013.
In relation to the circumstances in which the cancellation arose, the delegate noted the applicant’s explanation that he lost his job with his original employer when that employer sold the business on 2 September 2015, and that he had looked for employment since then. However, she considered that he was fully aware that he still held a subclass 457 visa subject to condition 8107 (despite applying for a student visa in the meantime and receiving a letter relating to the grant of a bridging visa), and that he was still non-compliant with that condition, since his new nomination by Alama Traders 2 Pty Ltd was still not approved.
The delegate accepted that the applicant contacted the Department to try to resolve his status after his student visa was refused, and that he provided the information to the Department about the cessation of his original employment. She also accepted that the applicant had been cooperative with the Department, and she gave this factor some weight in his favour.
The delegate was satisfied that the cancellation would not result in the consequential cancellation of the visa of any family member of the applicant, or that there was any evidence that cancellation would or might breach Australia’s international obligations.
The delegate stated that after a careful consideration of all the information before her, she was satisfied that a ground for cancellation exists and that the grounds for cancellation outweighed the grounds for not cancelling the applicant’s subclass 457 visa.
Evidence to the Tribunal
At the hearing on 15 May 2018, the applicant told the Tribunal that he originally came to Australia on a student visa, then applied for the subclass 457 visa, which was granted on the basis of his sponsorship by Tucker Box Diner. He confirmed that the owner of this business sold it to new owners on 2 September 2015, and that the new owners wanted to run it as a family business, so were not interested in continuing to employ or sponsor the applicant. He was therefore made redundant. The applicant confirmed that he was aware that as a condition of his subclass 457 visa, he had 90 days to find a new employer to sponsor and nominate him.
The applicant said that within the 90 days of being made redundant, he decided to apply for another student visa, and did so. The Department took 10 months to process this application, and it was ultimately refused in September 2016 on the grounds that the assessing officer did not believe that he genuinely intended to stay only temporarily in Australia. The applicant said that he then spoke with a migration agent, who confirmed that the applicant still held a subclass 457 visa. The migration agent also advised him that he should try to find another employer in a regional area, and if he could not, that he would have to leave Australia.
The applicant rang the Department the next day to advise them of what had happened, and was told that he should have advised them when he became redundant in September 2015. In response to the Tribunal’s query, the applicant said he knew that his subclass 457 visa was subject to condition 8107 but believed he had complied with this by applying for another visa (the student visa) within 90 days of being made redundant by his original employer. He recalled that he applied for the student visa 88 days after he ceased work. He didn’t work in between being made redundant and making the student visa application. After the latter application, he worked casually as a cleaner in Wagga Wagga, for not more than 20 hours per week.
The applicant said that he did find another employer willing to nominate him for a subclass 457 visa, Alama Traders 2 Pty Ltd, but by this time he had received the NOICC. This employer operated a Caltex Roadhouse in the Wagga Wagga area and had difficulty recruiting Cooks. They were therefore willing to nominate the applicant as a Cook (his originally nominated occupation) and they did so in December 2016. He advised the Department of this, but they still cancelled his visa in January 2017. Unfortunately, the nomination lodged by Alama Traders 2 Pty Ltd was refused by the Department in mid-2017, due to the occupational caveat introduced for the occupation of Cook, which prohibited Cooks in ‘fast food’ settings from being approved. The applicant said that the Caltex Roadhouse had offered mainly fast food, but he and another Cook actually changed the menu to provide better food for customers to dine in, and this had in fact increased the turnover. Nevertheless, the nomination was refused. The applicant said that he asked his employer to lodge a review application in relation to the nomination refusal but the employer was not interested in doing this due to the expense involved and the fact that the applicant would have to have gone offshore to apply for a new subclass 457 visa. The applicant said that his visa status was a problem for other employers, despite his efforts to secure another sponsorship and nomination. The applicant said that he was now working at a meat factory in Wagga Wagga doing boning work. He had been doing this work for 2 months. He said that he took this employment as it was full time, and he had only otherwise been offered casual work by other employers. The applicant said that about 1,000 people worked at the meat factory and that it was good employment, as a lot of the workers had been there for a long time.
In response to the Tribunal’s query, the applicant said that if his visa remained cancelled, he would have to return to Bangladesh. He said that he had been away from Bangladesh for 9 years and had not seen his parents in that time. He said that he had recently applied for his parents to visit him in Australia but their visas were refused. He said that he missed his family but that he would like to be able to stay in Australia until at least the end of 2018. He reiterated that he had been in Australia for 9 years, and for 2 in Wagga Wagga. He indicated that he really liked Wagga Wagga and was happy to have secured employment at the meat factory there.

In relation to his study history in Australia, the applicant said that he came to study commercial cookery, then did a Diploma of Electronics but he could not find work in this field. He said that his parents had told him the situation was similar in Bangladesh. He therefore returned to studying commercial cookery and obtained a Certificate IV in this field and a Business Management qualification as he was planning to open his own restaurant in Bangladesh. After this, he obtained the sponsorship and nomination for the subclass 457 visa from his original employer and gained experience as a Cook.
The applicant said that, besides his parents, he has 2 older brothers and an older sister in Bangladesh. They live in a rural city. His father is now retired from the public service. His siblings work for banks. His mother is a housewife. The applicant confirmed that he is not yet married and has no family in Australia. However, he said that he had lots of friends in both Melbourne and Wagga Wagga.
In response to the Tribunal’s query, the applicant said that his current employers had indicated that they would consider sponsoring him as a Boner for temporary and/or permanent residence, as about 50% of their workforce is made up of working holiday visa holders and they struggled to retain good employees. However, he had been advised that he would need at least 2 years of work experience as a Boner before he could apply for a visa, and so far, he had only 2 months of work as a Boner. The applicant said that his employers wanted him to do a Certificate III in this field but his bridging visa did not permit him to study, although he had permission to work.
The applicant said that his family had told him that it would be difficult for him to re-establish himself in Bangladesh after having spent so long away. He said that he previously worked there as a Customer Service Manager in a mobile phone company, but he was now 34 and might struggle to re-enter this field. The age limit for most government jobs was 30, and most private sector employers also looked for people between 23 and 25. The applicant said that he really only had the option of establishing his own business, and that while his family would try to help him, it was a big risk.
Following the hearing, the applicant provided a letter dated 21 May 2018 from the Onsite Account Manager for Regional Workforce Management (RWM), who confirms that the applicant is an RWM employee working as a labourer in the Boning Room on Line 1, having commenced on 3 April 2018. The author states that the applicant currently works a 40 hour week plus overtime when required, and that he has been a model employee who has been progressing well. The author further states that he understands that the applicant has had some visa problems and that he wanted to help him if he could. The author confirms that the applicant’s employment is ongoing and permanent.
Does the ground for cancellation exist?
A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance, condition 8107 attached to the applicant’s visa. This condition is set out above at paragraph 10 and, in summary, provides that an applicant must not cease work for more than 90 consecutive days for the original sponsoring/nominating employer.
It was not disputed by the applicant that he ceased work for his original employer Saidul Haque Pty Ltd (trading as Tucker Box Diner) on 2 September 2015, after having been made redundant, and therefore that at the time of the Department’s NOICC and its subsequent cancellation decision of 20 January 2017, he was not the subject of a new approved nomination by another approved standard business sponsor (although a nomination was pending at the Department as of December 2016).
The Tribunal is therefore satisfied that the applicant did cease employment with his original employer for more than 90 calendar days.
Under these circumstances, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
Consideration of discretion
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
Purpose of the visa holder’s travel to and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia
As discussed with, and acknowledged by, the applicant at hearing, the subclass 457 ((Temporary Work) Skilled) visa is a temporary visa, the purpose of which is to work for a standard business sponsor in a position approved through the nomination process. There is no other permitted purpose for holding a 457 visa.
The applicant's original approved employment has ceased. A nomination of him by another employer, Alama Traders 2 Pty Ltd, was made in December 2016 but was refused in mid-2017, and no review was sought of that decision. The Tribunal has evidence that the applicant has worked for a new employer, RWM, as a boner in a meat factory, since 3 April 2018 (approximately 3 months), but there is some doubt as to whether the applicant could now meet the criteria for a subclass 482 visa (the successor to the subclass 457 visa) given his lack of formal qualifications or substantial work experience in this occupation.
The applicant has argued that he has compelling reasons to remain in Australia as he has employment with RWM, who was happy with his work, who had offered him permanent, ongoing work, and who strongly supported his employment to assist their business. At the time of the hearing, no nomination had been lodged with the Department by this employer.
The applicant has also argued that he would struggle to re-establish himself in Bangladesh, and that he would be affected financially and emotionally if he had to leave, given the number of years he has lived in Australia and his friendships and employment here. The Tribunal notes, however, that all of the applicant’s family, to whom he is evidently close, are in Bangladesh.
The Tribunal has considered the applicant’s evidence about his employment with RWM in regional Australia (Wagga Wagga). The applicant has provided documentary evidence that he has full time employment in a new profession as a Boner with that employer, and that they regard him as a model employee. However, this employer has not lodged a nomination of him, and it is not clear to the Tribunal that it will do so (nor whether it is an approved standard business sponsor with the capacity to do so). Nor has it been explicitly stated that the applicant would be difficult to replace if he were unable to continue this employment.
Under these circumstances, the Tribunal considers this employment to be a relatively neutral circumstance in the assessment of whether or not the applicant’s visa should be cancelled.
The Tribunal acknowledges the applicant’s evidence that he had been in Australia since 2009 as a student and then a sponsored employee, and that the cessation of his employment with his original sponsor was not by his choice. It also acknowledges that he sought to find another sponsor and nominator after being made aware that his student visa application had been rejected (although not before that). The Tribunal accepts that he ultimately did so with Alama Traders 2 Pty Ltd (though this did not succeed), and is now working for RWM. It accepts that, in these circumstances, the applicant wishes to remain in Australia.
In the Tribunal’s view, the subclass 457 visa was a temporary visa the purpose of which is to enable Australian employers to fill skills shortages, and it is not a guaranteed pathway to permanent residence or long term temporary residence (the same remains true of its successor, the subclass 482 visa). The Tribunal does not consider the wish of the applicant to remain here for a longer time, or perhaps permanently, to be a compelling reason not to cancel the applicant’s subclass 457 visa, given that it is a temporary visa at best, and is inextricably linked to his being successfully sponsored and nominated for employment by an Australian employer.
The Tribunal acknowledges that the applicant would prefer not to return to Bangladesh until the end of 2018 or the start of 2019 and that he may (initially at least) have a lower standard of living if he re-establishes himself there, although he would have the support of his family there to do so. However, given the purpose of the subclass 457 visa program (and the fact that it is not a guaranteed pathway to ongoing Australian residence), the Tribunal does not consider this to be a compelling reason not to cancel the applicant’s subclass 457 visa. This is particularly so when the Tribunal takes into account the fact that the applicant has qualifications and employment experience which he could use to secure employment in Bangladesh and that he has family support there.
Extent of the applicant’s compliance with his visa conditions
There is no evidence before the Tribunal to suggest that the applicant has not complied with the conditions of his previous student or of any other conditions relating to his subclass 457 visa apart from condition 8107.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
As noted above, the applicant indicated that he would suffer some hardship if he had to depart Australia and return to Bangladesh as he would be going into an economically uncertain future and would be leaving his network of friends in Australia.
The Tribunal acknowledges that the applicant may suffer some financial, psychological and/or emotional hardship if he had to depart Australia, but does not consider that the degree of financial, psychological and emotional hardship that he would face would be insurmountable as he would returning to his family in Bangladesh and the Tribunal is not satisfied that the applicant would not be able to find any employment or business opportunities there to support himself, although it might not be at the level that he has experienced in Australia.
Circumstances in which the cancellation arose
The Tribunal accepts the applicant’s evidence that he was made redundant in September 2015 by his employer, Saidul Haque Pty Ltd (trading as Tucker Box Diner), due to the owner selling the business to a new owner.
The applicant conceded that he knew condition 8107 meant he had 90 days to find another employer but maintained that he believed that he had complied with that condition by applying for another visa (the second student visa) within the 90 day period. When it was clear to him that this application had been unsuccessful, he then secured employment and a nomination as a Cook with Alama Traders 2 Pty Ltd but this was ultimately refused by the Department. In the meantime, the applicant has found ongoing employment in another field, as a Boner with RWM in regional Australia. However, this employer has not nominated him and the Tribunal has no indication of whether it will do so or not.
The Tribunal has considered the applicant’s account carefully. It records that it found the applicant to be credible and sincere in his evidence at hearing, which was in turn consistent with his written responses to the Department’s NOICC.
The Tribunal considers that the circumstances in which the breach arose did not involve deliberate or significant breaches by the applicant, and that he tried to secure a new nomination by an Australian employer in his original role of Cook and is now employed in a different field as a Boner in regional Australia. These factors weigh in his favour.
Past and present conduct by the applicant towards the Department
The Tribunal accepts that the applicant has been cooperative with the Department. It acknowledges that he did not inform the Department immediately when he was made redundant in September 2015 but it accepts that he may have assumed his employer would do so, and it also accepts that he believed that, having made an application for a student visa within 90 days of becoming redundant, he had complied with condition 8107. The Tribunal does not consider that the applicant can be held responsible for the lengthy processing time of the student visa application, and it is satisfied that he contacted the Department voluntarily shortly after it was refused to try to get advice about how to resolve his visa status.
If breach relates to breach of r.2.43(1)(la)…
This factor is not applicable in the present case.
Whether there are mandatory legal consequences, such as whether cancellation would result in the applicant becoming unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention
While the Tribunal accepts that cancellation of a visa would normally result in a person becoming unlawful and subject to detention, the Tribunal is satisfied that the applicant has applied for, and been granted, bridging visas which are valid until the outcome of the Tribunal review. Accordingly, it does not accept that indefinite detention is a possible consequence of cancellation, as a bridging visa would continue to be available to the applicant if he needed this to make arrangements to depart, or to lodge a judicial review application, in the event that the Tribunal review is unsuccessful.
The Tribunal accepts that, if the visa cancellation is affirmed, the applicant will be subject to s.48 of the Act, which significantly limits what future onshore applications he may be able to make (though in the Tribunal’s view, it does not affect his ability to apply for a visa offshore in future).
Whether there would be consequential cancellations pursuant to s.140 of the Act
The Tribunal is satisfied that the applicant has no family members who would be subject to consequential cancellation of his subclass 457 visas pursuant to s.140 of the Act if the decision to cancel the applicant’s subclass 457 visa is affirmed.
Whether any international obligations would be breached as a result of the cancellation
The applicant did not raise any international obligations that he believed would be breached as the result of the cancellation and there is nothing before the Tribunal to indicate that cancellation would result in Australia breaching any of its international obligations.
Any other relevant matter
The Tribunal considers that a stay in Australia on a temporary visa such as the 457 visa is, as the length of visa grant suggests, a temporary stay, which by its nature will come to an end. The natural consequence of a temporary stay is a departure from Australia, which is something which should be anticipated by the holder of a temporary visa.
Significantly, from the Tribunal’s point of view, the applicant’s subclass 457 visa would expire on 24 November 2018 (had it not been cancelled earlier) – a date that is approximately 5 months away as at the time of the Tribunal’s decision. Thus, the value of setting aside the Department’s cancellation is questionable, since there is only a visa of relatively short duration to reinstate.
As discussed above, the Tribunal has some sympathy for the applicant’s circumstances, in that it accepts he has established a life here over approximately 9 years for himself, that the circumstances that led to the cancellation of his visa were not within his control, that he did try (and initially succeeded) in finding new employment and sponsorship/nomination in his profession and is now working in a new profession, and that the time taken by the Department to process his second student visa application was not within the applicant’s control. While the Tribunal acknowledges the fact that his current employer wishes to retain the applicant’s services, there is no indication that it is in a position to nominate or sponsor him, and the Australian Department of Jobs and Small Business skills shortage lists (published March 2018) do not list Boners as being in short supply in NSW or Australia generally.
As previously stated, the Tribunal considers that a stay in Australia on a temporary visa such as the 457 visa is, as the length of visa grant suggests, a temporary stay, which by its nature will come to an end. The natural consequence of a temporary stay is a departure from Australia, which is something which should be anticipated by the holder of a temporary visa.
In this case the applicant has had a fairly long duration in which to prepare for departure if that is the ultimate result. Alternatively, the applicant has had ample time in which to seek an alternative lawful basis of further stay in Australia. While he has obtained ongoing employment as a Boner since 3 April 2018, this is not the subject of an approved new nomination by an approved sponsor and there is no positive indication that it will be. Nor is there any current offer of full time employment as a Cook by an Australian employer, nor any obvious prospect that there will be in future. While the Tribunal acknowledges that reinstating the applicant’s subclass 457 visa would allow him to remain here until 24 November 2018, the Tribunal must weigh against this the fact that this is not consistent with the purpose of the subclass 457 visa program. That is, the subclass 457 visa is intrinsically linked to fulfilling the needs of Australian employers through approved nominated positions, and is not intended to provide ongoing residence to people who aspire to secure employment and/or temporary or permanent residence in future.
As also noted, the Tribunal has some sympathy for the applicant’s circumstances, in that it accepts he has established a life here over approximately 9 years and has been living and working in regional Australia for the past 2 years. However, the Tribunal gives significant weight in this case to the purpose of the subclass 457 visa which the applicant seeks to have reinstated. As noted above, this visa is intended only to fill shortages in the Australian labour market, for which approved sponsorship and nomination by an Australian employer is required. It is not intended to operate as a de facto residence visa in the absence of formal nomination or sponsorship being approved.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Alison Mercer
Member

[2018] AATA 3731

29 June 2018

Key Legal Topics

Areas of Law

Immigration

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