RAIGAMAGE (Migration)

[2017] AATA 2515

RAIGAMAGE (Migration) [2017] AATA 2515 (14 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kushmali Thivankani Perera Raigamage
Mr Rasika Ranjitha Hapuarachchige

CASE NUMBER:  1619925

DIBP REFERENCE(S):  BCC2016/3107018

MEMBER:Danica Buljan

DATE:14 August 2017

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-named applicant.

Statement made on 14 August 2017 at 4:15pm

CATCHWORDS

Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Employment with sponsor ceased for over 90 days – Compelling need to remain in Australia – Efforts to find a new sponsoring employer – No labour shortage in the information technology sector – Responsibility to abide by visa conditions – Recognition of Australian qualifications in Sri Lanka

LEGISLATION

Administrative Appeals Tribunal Act 1975 s 2A

Migration Act 1958, ss 48, 116, 133C, 137J, 140, 189, 198, 199, 205, 351, 359A, 362B, 363, 501

Migration Regulations 1994, Schedule 4 cl 457.223(4), Condition 8107, r 1.20GA, 2.43

CASES

Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Atomic Skifabrik Alois Rohrmoserv Registrar of Trade Marks [1987] FCA 22
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767
Ghori v Minister for Immigration and Citizenship [2011] FCA 759
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration & Anor [2013] FCCA 1641
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
MIEA v Guo & Anor [1997] 191 CLR 559
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Moller v Minister for Immigration and Citizenship [2007] FMCA 168
MZZGY v Minister for Immigration and Border Protection [2014] FCA 488
Nagalingam v MILGEA [1992] 38 FCR 191
Paduano v Minister for Immigration & Multicultural & Indigenous Affairs & Migration Review Tribunal [2005] FCA 211
Pradhan v Minister for Immigration and Multicultural Affairs [1999] FCA 1240
Prasad v MIEA [1985] 6 FCR 155
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 & Anor [2014] FCCA 2537
Tien & Ors v Minister for Immigration and Multicultural Affairs [1998] 89 FCR 80
Visnumolakala v Minister for Immigration [2006] FMCA 1209
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 22 November 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. The second-named applicant’s visa was 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 this other visa 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-named applicant.

   [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 25 November 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]

   [2]     AAT Case file 1619925 (T1), f.1-7

   [3]     D1 - Departmental file BCC2016/3107018, folio numbered 1-44

   [4]     T1 - AAT case file 1619925, folio number 1-79

5. On 29 March 2017 the Tribunal invited the applicant to comment on certain information before it, including departmental records. 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. This invitation included copies of the relevant legislative provisions and condition 8107 to facilitate the applicant’s response.[5]

   [5]     T1, f.25-29

6. On 11 April 2017 the Tribunal received a submission from the applicant’s representative in response to its invitation.[6] On 17 May 2017 the Tribunal also received additional evidence at the hearing in support of the application for review.[7]

   [6]     T1, f.39-41

   [7]     T1, f.61-66

   The Tribunal Hearing 

7. On 19 April 2017 the applicant was invited (through her migration agent) to appear before the Tribunal on 17 May April 2017 to give evidence and present arguments relating to the issues arising in relation to the decision under review. 

8. On 16 May 2017 the applicant’s representative requested a postponement of the hearing on the basis that the applicant was unwell and unable to attend. A medical certificate from Dr Deepakanthu Wijayathilaka (dated 15 May 2017), a general practitioner, was provided in support of this request.[8]

   [8]     T1, f.49-50

9. The Tribunal notes that under subsection 362B(1) of the Act it has a discretion, which is confirmed by subsection 362B(2), to reschedule the applicant’s appearance before it, or to delay its decision on the review, in order to enable her appearance to be rescheduled.

10. Accordingly, on 16 May 2017 the Tribunal considered whether it would be appropriate for it to exercise this discretion in the applicant’s favour having regard to the medical certificate before it. In doing so, the Tribunal had regard to the decisions in Kaur v Minister for Immigration & Anor[9], Singh v Minister for Immigration & Anor[10] and MZZGY v Minister for Immigration and Border Protection[11] where the Courts have generally held that a medical certificate that merely indicates that an applicant is unfit for work for a brief period will not necessarily constitute a firm basis for a scheduled hearing to be postponed in all circumstances.

    [9] [2013] FCCA 1641 (16 September 2013) at [7] – [11]

    [10] [2014] FCCA 2537 (Simpson J, 14 October 2014)

    [11] (2014) FCA 488 at [7] – [11]

11. The Tribunal acknowledges that it is not a Court. In addition, at the time of the requested postponement, the Tribunal took into account that the medical certificate before it was from a registered medical practitioner. The Tribunal also had regard to the fact that the medical certificate stated that the applicant was unwell and suffering from a medical condition (unspecified), and that it further stated that sick leave for the period 15 – 19 May 2017 inclusive had been advised.

12. On the other hand, the medical certificate did not set out why the applicant could not participate in the hearing to give oral evidence before the Tribunal, either in person or by telephone. In considering this matter the Tribunal had regard to the history of the application before it.

13. Accordingly, and pursuant to section 362B of the Act, on 16 May 2017 the Tribunal responded to the requested postponement as follows:

    The Tribunal refers to your request dated 16 May 2017 for a postponement of the Tribunal hearing scheduled for 17 May 2017.

    The Tribunal has a legal responsibility under section 2A of the Administrative Appeals Tribunal Act 1975 to ensure that the review is fair, just, informal, economical and quick.

    The Tribunal notes that the Department of Immigration cancelled the applicant’s subclass 457 visa 22 November 2016. The applicant also included a copy of the primary decision record with the application for review she lodged with the Tribunal on 25 November 2015. As a result, the Tribunal observes that the applicant has been aware of the reasons for the cancellation of her visa for approximately 6 months.

    In addition, the Tribunal notes that it invited the applicant on 29 March 2017 to comment on or respond to information under section 359A of the Migration Act (‘the Act’). In the same letter, the Tribunal also invited the applicant to provide information that was relevant to the exercise of its discretion. In response to this request, the Tribunal received a brief submission on 11 April 2017 that did not include any information that would substantiate the applicant’s claims.

    The Tribunal further observes that on 19 April 2017 it invited the applicant, through you as her authorised representative, to a hearing scheduled for 17 May 2017.

    In relation to your request for the applicant’s hearing to be postponed, the Tribunal observes that the medical certificate from Dr Deepakanthu Wijayathilaka (dated 15 May 2017) states that the applicant has been unwell and due to her medical condition sick leave has been advised from 15 – 19 May inclusive.

    However, the medical certificate does not explain in detail why the applicant cannot attend the scheduled Tribunal hearing to give oral evidence. Nor does it explain why you cannot give oral evidence by telephone in relation to the issues arising in her application for review at the scheduled hearing.

    Accordingly, given the contents of the medical certificate, and the lateness of your request, the Tribunal has not granted your request for the hearing to be postponed.

    Please note, the Tribunal is not bound by the rules of evidence, its procedures are inquisitorial, rather than adversarial, and it proceeds on a relatively informal basis at a hearing. As a result, the Tribunal has the capacity to amend its procedures at the proposed hearing to take into account the applicant's personal circumstances. For example, it can conduct the hearing by telephone with the applicant.

    Please note, and as previously advised to you and the applicant on 19 April 2017, if the applicant does not appear at the scheduled hearing in person, or as otherwise arranged by the Tribunal, on 17 May 2017, the Tribunal may proceed to either make a decision without taking any further action to allow or enable the applicant to appear before it.  Alternatively, the Tribunal may dismiss the application for review without any consideration of the application or the information before it.

    If you have any questions please contact us at [email protected] or call 1800 228 333.[12]

    [12]    T1, f.51-58

14. On 16 May 2017 the applicant’s representative responded that he had forwarded the Tribunal correspondence to the applicant and that “[a]lthough she is sick, she may attend the hearing as you have indicated”. He also provided the applicant’s telephone number, in the event that the applicant could not attend the scheduled hearing in person on 17 May 2017.[13]

    [13]    T1, f.59

15. The applicant appeared before the Tribunal in person on 17 May 2017 to give evidence and present arguments. The applicant also confirmed for the Tribunal that she was able and willing to give oral evidence, as her medical condition related to a physical condition rather than her capacity to answer questions and give oral evidence.

16. In addition, the Tribunal received oral evidence from the second-named applicant. It notes that the applicant was represented in relation to the review by her registered migration agent.

17. 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

18. 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.

19. 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

20. The applicant gave evidence that she had first arrived in Australia as the holder of a student visa in 2008. The applicant also stated that she had successfully applied for extensions to her student visa so that she could undertake a Masters qualification. 

21. In addition, the applicant gave evidence that she was granted a subclass 457 visa on 13 July 2015 on the basis that she would be employed as an ‘ICT Customer Support Officer’ (ANZSCO Code 313112) with Community Training Initiatives Pty Ltd, a registered training organisation providing government funded courses to students. The applicant stated that her position of employment with Community Training Initiatives Pty Ltd was based in Spotswood, Victoria and that her subclass 457 visa was granted for a period of 4 years until 13 July 2019. Departmental records confirm the applicant’s oral evidence regarding these matters.

22. Accordingly, and having regard to this evidence, the Tribunal finds that the Department granted the applicant a subclass 457 visa on the basis that she was sponsored by a standard business sponsor under subclause 457.223(4).

23. Furthermore, the applicant gave evidence that her employment with Community Training Initiatives Pty Ltd ended on 22 January 2016 when she was made redundant, along with approximately 20 other employees. At the hearing the applicant also provided copies of two letters (both dated 22 January 2016) addressed to her by Community Training Initiatives Pty Ltd to confirm this.[14]  

    [14]    T1, f.65-66

    Notification procedures

24. 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.[15]  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.

    [15] Section 119 of the Act

25. 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.[16]

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

26. On 11 November 2016[17] the Department sent the applicant a ‘Notice of Intention to Consider Cancellation’ (‘the notice’) noting that it had received written advice from her sponsoring employer on 8 April 2016 that she had ceased her employment with her sponsor effective 18 March 2016. The notice also stated that neither the applicant nor the sponsor had advised the Department that she had returned to work for the sponsor, or an associated entity, within 90 days of ceasing that employment.[18]

    [17]    D1, f.31-33

    [18] This information was included in the invitation sent to the applicant under section 359A of the Act on 29 March 2017. See T1, f.25-29

27. As a result, the Department 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 invited the applicant to comment on why her visa should not be cancelled, and she responded to this invitation on 17 November 2016.[19]  The applicant also confirmed these matters at the hearing.

    [19]    D1, f.19-20

28. Accordingly, the Tribunal finds that the applicant was given a notice of intention to consider cancellation (dated 11 November 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 on 17 November 2016 indicated that she understood the nature of the alleged non-compliance.

29. In these circumstances, the Tribunal considers 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?

30. 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.

31. 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.

32. 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:

33. 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. In this instance, condition 8107 is relevant to the current application for review.

34. The operative version of a visa condition is the version that was applicable at the time of visa grant.[20]  Accordingly, the relevant version of condition 8107 is extracted in the attachment to this decision.

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

35. 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 confirmed these matters at the hearing.

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

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

37. 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, given the applicant’s oral evidence and the departmental records that the Department approved the nomination lodged by Community Training Initiatives Pty Ltd for an 'ICT Customer Support Officer' on 7 July 2015, the Tribunal is satisfied that the applicant’s sponsor made this application after 1 July 2010.[21]

    [21] This information was included in the invitation sent to the applicant under section 359A of the Act on 29 March 2017. See T1, f.25-29

1. In relation to paragraph 8107(3A)(aa), the applicant will only be exempted from the requirements of subclause 8107(3) if her occupation (' ICT Customer Support Officer') 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.[22]

   [22]    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

2. However, IMMI 13/067 does not specify an 'ICT Customer Support Officer' (ANZSCO Code 313112) 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).

3. In relation to paragraph 8107(3A)(b), the Tribunal has had regard to the applicant’s written and oral evidence that she ceased her employment with her sponsoring employer, Community Training Initiatives Pty Ltd when she was made redundant on 22 January 2016. The Tribunal has also taken into account the applicant’s evidence that, although Community Training Initiatives Pty Ltd had operated 6-7 registered training organisations, she had never worked for any of these associated entities.

4. As a consequence, the Tribunal is satisfied that the applicant did not “continue to work” for an associated entity of Community Training Initiatives Pty Ltd for the purposes of paragraph 8107(3A)(b) and, therefore, that she does not meet the requirements of this provision.

5. Accordingly, given its findings in respect of paragraphs 8107(3A)(a), (aa) and (b), the Tribunal 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)?

6. 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).

7. 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 ‘ICT Customer Support Officer’ with Community Training Initiatives 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).

8. At the Tribunal hearing the applicant gave evidence that she commenced her employment as an ‘ICT Customer Support Officer’ with Community Training Initiatives Pty Ltd shortly after her subclass 457 visa was granted to her on 13 July 2015. She also gave evidence that she had ceased this employment on 22 January 2016 when she was notified that her position had become redundant. In addition, the applicant confirmed that she has not worked for Community Training Initiatives Pty Ltd since 22 January 2016. This is confirmed by the letters (dated 22 January 2016) from Community Training Initiatives Pty Ltd that the applicant provided at the hearing.[23] As a result, the applicant acknowledged that she had ceased her employment with her sponsoring employer for more than 90 consecutive days. 

   [23] As the applicant provided this information to the Tribunal at the hearing and for the purpose of the application for review, it comes within the exception in subsection 359A(4)(b) of the Act. See: T1, f.65-66.

9. Accordingly, given the evidence before it, the Tribunal finds that the applicant's employment in the nominated occupation of 'ICT Customer Support Officer' at Community Training Initiatives Pty Ltd ceased on 22 January 2016. The Tribunal further finds that the applicant has not returned to this employment at the time of its decision.

10. Consequently, the Tribunal is satisfied that the applicant has ceased her employment with her sponsoring employer for approximately 19 consecutive months at the time of its decision. 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.

11. As a result, the Tribunal finds that the applicant has not complied with the requriements of subclause 8107(3) and condition 8107, which was a condition that applied to her subclass 457 visa.

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

13. 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 Discretion

14. 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.

15. 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.[24]

    [24]    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

16. 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. 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'.

17. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[25] 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.[26] 

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

    [26]    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]

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

19. In considering its discretion, the Tribunal has taken into account the applicant’s various submissions and evidence. This includes submissions dated 17 November 2016[27] and 11 April 2017[28], the oral evidence from the applicant and her spouse (the second-named applicant) at the hearing and the documentary evidence[29] she submitted at the hearing.

    [27]    D1, f.19-20

    [28]    T1, f.39-41

    [29]    T1, f.65-66

20. 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:

21. 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.”[30]

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

22. 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.

23. In this case, the applicant confirmed at the hearing that she was originally granted her subclass 457 visa to work for Community Training Initiatives Pty Ltd, that this visa was valid until 13 July 2019, but that she had ceased her employment on 22 January 2016.

24. Specifically, the applicant gave evidence that in late 2014, whilst still a student, she commenced part-time employment with Community Training Initiatives Pty Ltd. She added that they subsequently agreed to sponsor her as an ‘ICT Customer Support Officer’ on a fulltime basis and as the holder of a subclass 457 visa, which was granted on 13 July 2015. The Tribunal also accepts the applicant’s evidence that she commenced her fulltime employment as an ‘ICT Customer Support Officer’ with her sponsoring employer in July 2015, ad that this employment ceased on 22 January 2016 when she was notified that her position had become redundant.

25. Accordingly, on the basis of the evidence before it, the Tribunal is satisfied that the applicant was issued a subclass 457 visa on 13 July 2015 to enable her to remain in Australia and work as an ‘ICT Customer Support Officer’ for Community Training Initiatives Pty Ltd for a period of 4 years until 13 July 2019.  

26. As a result, given that the applicant’s position of employment with her sponsoring employer ceased on 22 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.

27. Notwithstanding, the applicant and her representative argued that having regard to her qualifications, skills and employment background in information technology, and the circumstances in which her employment had ceased, there were compelling reasons to allow the applicant to remain in Australia that justified the exercise of the Tribunal’s discretion in her favour.

28. As a result, the Tribunal has had regard to the judgment in Paduano v Minister for Immigration & Multicultural & Indigenous Affairs & Migration Review Tribunal[31] 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.

    [31] [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.

29. The Tribunal also notes that according to the Macquarie Dictionary Online[32] the term ‘compelling’ is defined to mean: “1. demanding attention or interest…2. convincing: a compelling argument”. It defines ‘compassionate’ to mean: “1. having or showing compassion. 2.  on the grounds of compassion: compassionate leave…4.  to have compassion for; pity”.

    [32]    T1, f.67-67A:  – Accessed 18 May 2017 & 7 August 2017

30. Similarly, the Oxford Dictionaries Online[33] 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”.

    [33]    T1, f.68: - Accessed 18 May 2017 & 7 August 2017

31. Accordingly, in light of the whole of 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:

32. 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.

33. Given the contents of the applicant’s visa application and her oral evidence at the hearing, the Tribunal finds that she is aged approximately 29 years at the time of decision. In addition, on the basis of the information set out in her representative’s submission (dated 11 April 2017[34]) and her oral evidence, the Tribunal accepts that the applicant holds a ‘Bachelor of Information Technologies’ and that she is qualified as a specialist in system analysis.

    [34]    T1, f.39

34. As a result, the Tribunal is satisfied on the basis of the applicant’s Australian bachelor degree, and her employment at Community Training Initiatives Pty Ltd, that she has qualifications, skills and an employment background that would be relevant to the position of an ‘ICT Customer Support Officer’ (ANZSCO Code 313112) in the Australian information technology sector.

35. However, whilst the applicant’s age, qualifications, skills and employment background are relevant to the assessment regarding whether she has a compelling need to remain in Australia, these factors are not necessarily sufficient, without more, to demonstrate this.

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

36. Accordingly, the Tribunal has also had regard to the applicant’s efforts to find a new sponsoring employer, given her oral evidence that she tried to do so after she was made redundant on 22 January 2016.

37. The evidence confirms the applicant’s efforts resulted in Training Experts Australia Pty Ltd agreeing to sponsor her for a subclass 457 visa in October 2016. Notably, in her response to the Department on 17 November 2016, the applicant she indicated that Training Experts Australia Pty Ltd had lodged a business nomination application for this purpose.[35]

    [35]    D1, f.20

38. The Tribunal also accepts the applicant’s oral evidence that Training Experts Australia Pty Ltd was not an associated entity of Community Training Initiatives Pty Ltd and that its business nomination application was for an ‘ICT Customer Support Officer’ with an annual salary of approximately $55,000. 

39. However, the applicant also gave oral evidence confirming that Training Experts Australia Pty Ltd withdrew this business nomination application shortly after her visa was cancelled on 22 November 2016. In particular, the applicant told the Tribunal that Training Experts Australia Pty Ltd did so because it had received advice from her former migration agent that there was no point in pursuing the business nomination application.

40. As a result, the applicant acknowledged that she did not have an approved sponsor who had an approved business nomination in her favour. The applicant explained that she had found it difficult to find another sponsoring employer because she was barred by section 48 of the Act from applying for another subclass 457 visa onshore. As a consequence, most employers were not interested in sponsoring someone facing these difficulties.

41. In addition, the applicant advised that she has not been employed with any other Australian employer since January 2016. Notably, she has not provided any further information to the Tribunal to indicate that this has situation changed at the time of decision. Therefore, there is little in the evidence to suggest that the applicant is likely to resume employment in the information technology sector in the reasonably foreseeable future.

42. Accordingly, together with its earlier findings, the Tribunal is satisfied that the applicant does not work as an ‘ICT Customer Support Officer’ for Community Training Initiatives Pty Ltd at the time of decision.

43. It also finds that she is not employed in the Australian information technology industry, which is contrary to the purpose for which her subclass 457 visa was originally granted.

    Summation:

44. 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, qualifications, skills and employment background in the information technology sector. It has also had regard to the difficulties she has experienced in finding a new sponsoring employer. 

45. Nevertheless, the Tribunal gives greater weight to the absence of an approved or pending business nomination application that would provide the applicant with an opportunity to work in an approved occupation, given the underlying purpose of the subclass 457 visa programme is to address Australian labour shortages. This is because, despite the applicant’s skills in the information technology sector, her inability to secure alternative employment in her chosen field does not suggest that there is a labour shortage in Australia for her specific skills.

46. As a result, the Tribunal is not satisfied that the evidence reveals compelling reasons for the applicant to remain in Australia. Nor is the Tribunal 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.

47. 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:

48. According to the primary decision record the applicant included with her application for review, from a departmental perspective, the cancellation process was triggered when the Department received advice from the applicant's sponsor on 8 April 2016 that she had ceased her employment effective 18 March 2016.[36]

    [36] 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.

49. Although this was the basis for the departmental notice issued on 11 November 2016, the applicant gave oral evidence that this is not strictly accurate. As a result, the applicant submitted that the circumstances that gave rise to the ground of cancellation pointed to the exercise of the relevant discretion in her favour.  

50. In particular, the applicant referred the Tribunal to the letter dated 22 January 2016 from the General Manager (Human Resources) for Community Training Initiatives Pty Ltd, which relevantly stated:

    As you are aware the company is currently in a voluntary trading halt as a result of Department of Education and regulatory authority interventions.

    As a result, a review of our Business Model has been undertaken and consequently your position has been made redundant, based on your length of service, your notice period is one (1) week. Your employment will end today (Friday 22 January 2017) and you will be paid one week’s salary in lieu of notice and all accrued value entitlements in accordance with your contract. This decision is not a reflection of your performance but rather a response to a dramatic change in business circumstances.[37]

    [37]    T1, f.66

1. The applicant also claimed that she had been promised by the Chief Executive Officer / Managing Director (‘CEO’) for Community Training Initiatives Pty Ltd that he would either re-employ her, or sponsor her for another subclass 457 visa. She added that the CEO told her not tell anyone about her employment status because he would make things right, including with immigration.

2. As a result, the applicant stated that in January 2016 she believed her employment with Community Training Initiatives Pty Ltd had only ceased temporarily. She said that this belief was reinforced by the contents of the second letter she received from the CEO on 22 January 2016, which stated the following:

   This is to inform you the Community Training Initiatives would temporarily [sic] redundant you from employment at [address in Spotswood]. We had to make this decision due to the legal matters. We wish to reemploy you to our earliest possibility. As you have been a valued employee, we wouldn’t inform the department of immigration [sic] or at a later day [sic] if we do not sort out CTI we would nominate you to work from [sic] another company of mine.[38]   

   [38]    T1, f.65

3. The Tribunal asked the applicant if she had contacted the Department about these matters and her situation. The applicant answered that she had not done so because she had trusted the CEO of Community Training Initiatives Pty Ltd, especially given his letter dated 22 January 2016.

4. In addition, the applicant gave evidence that her sponsor did not inform her that it had reported the cessation of her employment to the Department on 8 April 2016, or that it was no longer in a position to reemploy her at a later date. She stated that it was only after she had received the notice of intention to cancel her visa that she had spoken to the CEO of her sponsoring employer, who informed her that its administrators had made this report to the Department. Accordingly, the applicant stated that she felt the cancellation of her visa in these circumstances was unfair.

5. 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 left her vulnerable to some level of exploitation by her sponsoring employer.

6. Overall, the Tribunal found the applicant to be a generally frank and credible witness, and it understands that she was honestly surprised to learn her position had become redundant in January 2016. The Tribunal also accepts that the applicant genuinely believed, albeit perhaps a little naively, the CEO’s assurances that she would either be re-employed by Community Training Initiatives Pty Ltd, or employed in another one of his companies.

7. The Tribunal further 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.

8. On the other hand, the applicant has not complied with condition 8107 for approximately 19 months at the time of decision, which far exceeds the 90 days permitted by paragraph 8107(3)(b) and is a matter to which the Tribunal assigns some weight.

9. Notwithstanding the applicant’s claims, given 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:

   (a)The Applicant’s Personal Circumstances and Awareness of Condition 8107:

10. The Tribunal accepts the applicant’s evidence that she was aged just 20 years when she first arrived in Australia as a student in March 2008, that she was alone and without her parents, having tragically lost her younger brother. It also appreciates that given this, the applicant felt her parents had a significant emotional investment in her migration to Australia, ultimately hoping that she would secure permanent residence in Australia. To that end, the applicant has successfully completed an Australian bachelor degree and commenced a masters qualification.

11. In terms of the circumstances surrounding her redundancy, the Tribunal also accepts that the applicant had a very natural and understandable desire to believe that the CEO at Community Training Initiatives Pty Ltd would resolve the issues relating to her immigration status. This may explain why she did not interpret the reference to regulatory interventions in her redundancy letter as a serious warning sign. Consequently, the Tribunal has some sympathy for the applicant’s predicament in January 2016 and the subsequent few months that followed.

12. On the other hand, the Tribunal also observes that the applicant did not proactively approach the Department to discuss this change in her employment in January 2016. At the hearing the applicant claimed that she was not aware of the conditions that applied to her subclass 457 visa, including condition 8107. However, there are several facets to the evidence that undermine this claim.

100.   Firstly, the applicant provided the Tribunal with a copy of the visa grant notice[39]  in her possession that related to her subclass 457 visa. As discussed with the applicant at the hearing, page 3 of this document set out the requirements for compliance with condition 8107, as well as the potential consequences for failing to do so. During her oral evidence the applicant did not deny this, but stated that she had not read the document properly to fully comprehend its contents.

[39]    T1, f.61-64

101.   Although that may well have been the case, the applicant did not identify for the Tribunal any particular reasons that either prevented her from reading this documentation, or from seeking advice from the Department or a migration agent about the requirements of condition 8107 when her visa was granted. As such, there is little to indicate that the applicant’s failure to read and understand the contents of her visa grant notice was due to factors beyond her control.

102.   Secondly, the applicant’s evidence regarding her past compliance with visa conditions after her 2008 arrival in Australia supports the view that she had some awareness that her subclass 457 visa was likely to be subject to conditions. Indeed, the applicant acknowledged at the hearing that as a visa holder she had a responsibility to abide by the conditions of any visa granted to her.

103.   As a result, the Tribunal does not accept that any failure on the applicant’s part to properly read and understand the content of her visa grant notice, which set out the requirements of condition 8107, absolves her from the obligation to comply with condition 8107 of her subclass 457 visa.

104.   Thirdly, the applicant’s actions in finding another employer to sponsor her demonstrate that she had some understanding of the requirements of condition 8107. Specifically, the applicant gave oral evidence that Training Experts Australia Pty Ltd had lodged its business nomination application in October 2016, prior to the issue of the departmental cancellation notice on 11 November 2016. This is confirmed by the evidence she submitted to the Department with her response to this notice.

105.   As such, the Tribunal does not find it plausible that the applicant would have approached Training Experts Australia Pty Ltd to sponsor her for the subclass 457 visa in October 2016 (or earlier) if she had not been alert to the fact that this was necessary for the purposes of condition 8107.

106.   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. Yet, despite this, the applicant did not take any proactive steps to notify the Department of the change in her employment circumstances that occurred in January 2016.

107.   Consequently, this has meant that at the time of the Tribunal’s decision in 2017 the applicant has not complied with condition 8107 for approximately 19 consecutive months, approximately 16 months longer than is permitted by paragraph 8107(3)(b).

(b)The Applicant’s Efforts to Mitigate the Breach:

108.   As noted previously, the Tribunal found the applicant was an open and frank witness and a person for whom it had some sympathy. Given this, the Tribunal is satisfied that the applicant did not set out to deliberately mislead the Department regarding the circumstances surrounding the cessation of her employment at Community Training Initiatives Pty Ltd.

109.   Nevertheless, as discussed earlier, the Tribunal accepts that Training Experts Australia Pty Ltd was willing in October 2016 to sponsor the applicant as an ‘ICT Customer Support Officer’. On the other hand, given the applicant’s oral evidence, this did not take place until approximately 9 months after she had ceased her employment with Community Training Initiatives Pty Ltd.

110.   In addition, as confirmed by the applicant at the hearing, Training Experts Australia Pty Ltd withdrew its business nomination application in November 2016 and she has been unable since to find a new employer to sponsor her. As a consequence, the applicant has not been engaged in paid employment with her approved sponsor, or another sponsor in her chosen field, for approximately 19 months at the time of decision. 

111.   The Tribunal accepts the applicant’s explanation that the difficult labour market for information technology professionals, and the complications associated with her immigration status as a person whose visa has been cancelled, has made it harder for her to find an employer willing to sponsor her for the subclass 457 visa.

112.   Nevertheless, on her own evidence, the applicant was no closer to finding a new sponsor in May 2017 (at the time of the Tribunal hearing) than she was in November 2016. There is also little in the evidence before the Tribunal suggest that there has been any change to this situation at the time of decision.

113.   Accordingly, in its assessment of the evidence and its discretion, the Tribunal gives greater weight to this fact and less to the circumstances that gave rise to the applicant becoming redundant at Community Training Initiatives Pty Ltd.

(c)The Alleged Poor Advice / Conduct by the Applicant’s Former Migration Agents:

114.   In considering whether to exercise the relevant discretion in her favour, the Tribunal has also considered the applicant’s claims regarding the poor advice she and Training Experts Australia Pty Ltd received in November 2016 from her then migration agent, which resulted in this potential employer withdrawing its business nomination application on 29 November 2016.  

115.   Specifically, the applicant gave evidence that her former migration agent advised Training Experts Australia Pty Ltd in November 2016 that there was no point in proceeding with the business nomination application once the applicant’s visa was cancelled on 22 November 2016, despite the fact that she had lodged an application for review with the Tribunal on 25 November 2016.

116. In addition, the applicant maintained that she had received poor immigration advice from both of the migration agents she had engaged since becoming redundant in 2016. In particular, the applicant gave evidence that her first migration agent had advised her that she was section 48 barred and, therefore, that she could not apply for another subclass 457 visa in Australia.

117.   The applicant further stated that this migration agent was overseas when her visa was cancelled and, accordingly, told her to wait until the representative’s return to apply for a bridging visa. The applicant stated that it was only when she engaged her second migration agent that she learned that she needed to immediately apply for a bridging visa, which she did on 22 December 2016. Unfortunately, the applicant stated that this meant that she did not have permission to work in Australia and, thus, had to rely on family and friends for financial support. The applicant also expressed some dissatisfaction with her second migration agent, stating that he had not properly prepared her for the Tribunal hearing.

118.   Accordingly, in assessing this claim the Tribunal has had regard to the general principles of agency in Australian law[40], which indicate that the relationship between principal and agent can arise in several ways, including by agreement, the conduct of the parties or the operation of law. In addition, the Courts have held in the immigration context that the acts or omissions of an agent who an applicant has engaged to do certain things on their behalf are not circumstances that can generally said to be beyond a person’s control.[41]

[40]    T1, f.72, See The Laws of Australia, Legal Online, Geoff Masel (1993 – 2001)

[41]    See Atomic Skifabrik Alois Rohrmoserv Registrar of Trade Marks [1987] FCA 22 ( 5 February 1987) at [18]

119.   These matters were discussed with the applicant at the hearing. On the basis of the signed ‘Advice by a migration agent/exempt person of providing immigration assistance’ (Form 956) dated 15 November 2016[42] provided to the Department, and the signed authority with similar effect provided to the Tribunal on 22 December 2016[43], the Tribunal considers the general principles of agency to be applicable to the relationships between the applicant and each of the migration agent’s she has appointed since November 2016.

[42]    D1, f.17-18

[43]    T1, f.10-13

120.   Given the Tribunal’s finding that the applicant was a frank and credible witness, it does not dispute her account of these matters. As a result, the Tribunal has some sympathy for the applicant, given that the advice she had received from her registered migration agents appears to have exacerbated her immigration status at the time of decision. In particular, it is plausible that had Training Experts Australia Pty Ltd been encouraged to proceed with its business nomination application in November 2016, that application may have been finalised in the applicant’s favour such that there may well have been a potentially a different outcome to this application for review.  

121.   Correspondingly, the Tribunal appreciates the difficult situation the applicant found herself in and, as stated previously, it is not unsympathetic to her plight. As such, the Tribunal acknowledges that an applicant, who is unfamiliar with the complex requirements of the migration legislation, is likely to rely upon the advice of a registered migration agent. Indeed, in this case the Tribunal accepts that the applicant has relied on the advice of both of her former registered migration agents at different points in time.

122.   Notwithstanding, as discussed previously, the applicant is not the subject of an approved nomination lodged by an approved sponsor at the time of the Tribunal’s decision. In addition, whilst the applicant expressed her disappointment with the allegedly poor immigration advice she had received after her visa was cancelled, the Tribunal notes that she did not suggest that either of her former migration agents had acted outside the authority that she had conferred upon them.

123.   Further, the fact that the applicant and her prospective employer relied upon her former migration agent’s advice in November 2016, which included an assessment of their respective prospects of success, does not necessarily demonstrate the type of the professional incompetence / negligence the Courts have generally required before they will excuse an applicant for the actions of their agent. Nor does it automatically point to circumstances that warrant the exercise of the cancellation discretion in the applicant’s favour.

124.   There is also little in the evidence to suggest that either of the migration agents the applicant had engaged had any direct involvement in the circumstances that led to her non-compliance with condition 8107.

125.   Finally, by November 2016 the applicant had failed to comply with condition 8107 for approximately 7 months, having ceased her employment with Community Training Initiatives Pty Ltd some 10 months earlier.

126.   Therefore, having regard to the whole of the evidence before it, the Tribunal is not satisfied that the actions or omissions of the applicant’s former migration agents, including the migration agent who advised Training Experts Australia Pty Ltd to withdraw its business nomination application, were factors beyond the applicant’s control such that they led to her ongoing non-compliance with condition 8107.

127.   As a consequence, the Tribunal does not accept that the applicant’s reliance on the advice of her former migration agents, or that the nature of their conduct in the particular circumstances of this case, are factors that point to the favourable exercise of the relevant discretion not to cancel her subclass 457 visa.

Summation:

128.   Accordingly, the Tribunal has considered the extent to which the applicant was aware of condition 8107 and her unsuccessful efforts to mitigate the breach by finding a new sponsor. It has also had regard to the applicant’s account of what happened with her employment at Community Training Initiatives Pty Ltd in January 2016, including the promises that were made to her at that time. In addition, the Tribunal has taken into account the applicant’s claims regarding her former migration agents’ conduct.

129.   However, 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:

130.   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.

131.   The Tribunal therefore accepts that the 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.

132.   As discussed above, the applicant did not contact the Department regarding the changed circumstances affecting her employment with Community Training Initiatives Pty Ltd. On the other hand, the Tribunal further notes that the applicant has since indicated that it would have been preferable for her to have done so.

133.   In addition, the Tribunal has considered that the applicant responded promptly to the departmental notice issued to her on 11 November 2016. Accordingly, there is little in this evidence to suggest that the applicant has a history of being deliberately difficult, or failing to co-operate, with the Department.  

134.   The Tribunal also accepts that the applicant was co-operative in her dealings with it. Notably, the applicant responded to the Tribunal invitation dated 29 March 2017 in a timely manner, and she was cooperative whilst giving her oral evidence at the hearing.

135.   Accordingly, the Tribunal accepts that, on balance, the applicant’s past and present conduct are matters that can be positively taken into account in the applicant’s favour.

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

136.   The applicant put forward a number of grounds relating to hardship that she argued justified the exercise of the discretion in her favour. The Tribunal has considered each of these in turn.

(a)The Applicant’s Long-term Goals:

137.   At the hearing the Tribunal asked the applicant what she thought was the purpose of the subclass 457 programme. The applicant responded that she came to Australia in 2008 to study because she wanted a good education and an opportunity to secure permanent residence in Australia. She also told the Tribunal that following her younger brother’s death she needed a change of environment.

138.   As indicated previously, the applicant told the Tribunal that her family was highly invested in the applicant achieving permanent residence in Australia. She stated that both she and her family had spent a lot of money on her education in Australia.

139.   The applicant also said that she had studied hard and made many personal sacrifices to achieve these goals. She added that she has been in Australia for approximately 9 years and that she loved Australia, which was calm and where she saw her future. As a result, the applicant stated that she did not wish to return to Sri Lanka because this would shatter her dream to obtain permanent residence.

140.   The Tribunal understands these personal goals; they are not without merit. It also recognises that the applicant’s current circumstances, especially in relation to the cancellation of her subclass 457 visa, represent a significant personal setback for her, her spouse and her family, in terms of this objective.

141.   However, as noted previously and as explained to the applicant at the hearing, the subclass 457 programme is a temporary residence programme. Importantly, as such it may not necessarily lead to permanent residence because it is designed to address labour market shortages in Australia that may change according to prevailing economic conditions.

142.   As a result, the Tribunal gives the applicant’s personal objectives regarding permanent residence in Australia less weight in its consideration of the issues before it.

(b)The Potential Detriment to the Applicant:

143.   In assessing whether to exercise its discretion in the applicant’s favour, the Tribunal has also taken into account the applicant’s oral evidence that she would suffer personal hardship if she were required to depart Australia and return to Sri Lanka.

144.   Specifically, the applicant explained that, due to the current economic climate in Sri Lanka, she would find it difficult to find employment, as her Australian qualifications would only receive limited recognition there. The applicant also advised that she would have nowhere to live because her parents rent a home. As a result, the applicant stated that she does not have the financial resources to survive in Sri Lanka.

145.   In addition, the applicant gave evidence that following the cancellation of her visa she had been forced to borrow from family and friends in Sri Lanka and Australia in order to support herself financially. The applicant added that she would not be able to repay these debts if she had to return to Sri Lanka.

146.   In terms of the potential personal hardship to the applicant, that Tribunal has also had regard to the applicant’s evidence that her former migration agents gave her poor immigration advice. In particular, the Tribunal accepts that the overseas absence of the applicant’s first migration agent in November 2016, coupled with the advice she received at that time, led to a delay in the lodgment of her application for a bridging visa, and permission to work in Australia. In turn, this meant that the applicant had few options other than to seek financial assistance from her family and friends.   

147.   However, for the reasons outlined previously, the Tribunal is not satisfied that the evidence before it meets the threshold set by the Courts for assessing alleged professional incompetence. Therefore, the Tribunal gives limited weight to the claims the applicant has made about the advice she received from her former migration agents.

148.   The Tribunal acknowledges that the cancellation of the applicant’s visa is likely to cause her to suffer a financial loss. As such the Tribunal does not dispute the applicant’s claim that present economic conditions in Sri Lanka do not compare favourably with those prevailing in Australia. It also accepts that she may encounter difficulties in securing suitable employment in Sri Lanka, notwithstanding her Australian qualifications in information technology. Given this, the Tribunal recognises that the applicant’s financial circumstances might impose constraints upon her ability to apply for temporary residence in Australia in the future.

149.   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. 

150.   Correspondingly, the Tribunal has had regard to the applicant’s claim that the financial position of her parents and in-laws in Sri Lanka does not compare favourably with the financially circumstances she has previously enjoyed in Australia as a student and subclass 457 visa holder. It also appreciates that it may be difficult for the applicant’s extended family in Sri Lanka to provide long-term or extensive support to her and her spouse should she return to Sri Lanka, especially if she experiences difficulties in finding suitable employment and accommodation. As a consequence, the Tribunal recognises that there are personal and financial costs for the applicant associated with any requirement for her to return to Sri Lanka.

151.   On the other hand, whilst the Tribunal acknowledges that it may be difficult for the applicant to find employment immediately once she returns to Sri Lanka, given her qualifications and work experience in the information technology sector, there is little in the evidence before the Tribunal to suggest that it would not be possible for her to eventually obtain employment in Sri Lanka.

152.   The Tribunal also notes that the applicant gave evidence that her parents and in-laws had provided her with financial support following the cancellation of her visa in Australia. In addition, the applicant told the Tribunal that her parents live in Sri Lanka’s Western Province and that her step-brother, a telecommunications engineer, lives in Colombo with his spouse without any children. The applicant further advised that her sister-in-law lives with her spouse’s parents and that her mother-in-law still works as a teacher in the Western Province.

153.   The Tribunal recognises that the personal circumstances of these extended family members may mean that the applicant cannot totally depend upon them in Sri Lanka for an extended period of time.

154.   Notwithstanding, given the assistance the applicant stated her family and friends have provided her in Australia to date, the Tribunal does not accept that it would be impractical for some of these relatives to provide the applicant with a measure of initial support in the event she returned to Sri Lanka.

155.   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. As a result, and without wishing to sound harsh, this programme is not directed at assisting parties to remain in Australia and achieve permanent residence where the need for particular skills with a sponsoring employer has ceased to exist.

156.   Accordingly, although the Tribunal understands the applicant’s stated desire to remain in Australia permanently, if possible, it also notes that she has been aware since her arrival in 2008 that she was present in Australia on a temporary basis. Notably, the applicant confirmed during her oral evidence that she had arrived in Australia in March 2008 as the holder of a temporary student visa, which she subsequently on several occasions until the grant of her temporary subclass 457 visa in July 2015.  

157.   As a result, in considering its discretion the Tribunal gives less weight to the potential financial detriment, or relocation issues the applicant and her spouse would face in Sri Lanka, due to the cancellation of their temporary visas.

(c)The Emotional, Psychological and Educational Impact:

158.   The Tribunal has also considered the psychological, emotional and educational impact upon the applicant and her spouse if her visa is cancelled. It notes that the evidence about these matters is largely limited to the applicant’s oral statements at the Tribunal hearing.

159.   Nevertheless, the Tribunal does not dispute the applicant’s evidence that she has completed one semester of her masters qualification in Australia and that her student visa was cancelled once she was granted her subclass 457 visa. In addition, the Tribunal accepts the applicant’s evidence that, after she was granted her subclass 457 visa, she also informed her education provider that she would cease her masters studies.

160.   The Tribunal acknowledges that the applicant has a natural desire to complete these studies and her education in Australia. It also recognises that there is likely to be some disruption to the applicant’s ability to do so, if she is required to return to Sri Lanka. Nor does the Tribunal deny that the applicant, her spouse, and the extended family she has in Australia (consisting of more than five cousins, two uncles, an aunt, and her grandmother, located variously in Melbourne, Sydney and Adelaide), will need to make psychological, emotional and other adjustments if the applicant and her souse are required to depart Australia for Sri Lanka.

161.   On the other hand, the Tribunal considers these matters need to be balanced against the fact that the applicants arrived in Australia as non-citizens and that their most recent temporary visas (namely, their subclass 457 visas) were subject to certain conditions, including condition 8107. Finally, the Tribunal observes that the transition from temporary residence, as the holder of a subclass 457 visa, to Australian permanent resident is never certain, something the applicant accepted at the hearing.

162.   Accordingly, given the whole of the evidence before it, whilst the Tribunal accepts that the applicant and her spouse may be affected at a psychological and/or emotional level, including in terms of their educational progress, by the cancellation of her visa. It also understands that the applicant and her spouse have a strong inclination to remain in Australia. In addition, the Tribunal does not doubt that they would derive a considerable measure of happiness from being allowed to remain in Australia.

163.   However, for the reasons outlined above, the Tribunal gives these matters less weight in relation to the exercise of the relevant cancellation discretion.

Summation:

164.   In considering the exercise of its discretion, the Tribunal has had regard to the extent to which the applicant might experience hardship, be that on a financial, psychological, emotional or some other basis. It has taken into account the applicant’s aspiration to achieve permanent residence in Australia.

165.   The Tribunal has also considered the potential financial detriment to the applicant, her spouse and her extended family and friends in Australia. It has also had regard to the potential difficulties the applicant might face in obtaining employment in Sri Lanka if her visa is cancelled.

166.   Nevertheless, for the reasons set out previously, the Tribunal gives these matters less weight in relation to the exercise of the relevant discretion.

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:

167.   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.

168. 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.

169.   However, these possible legal outcomes are the intended consequence of the legislation and reflect the seriousness with which visa cancellation is viewed. Given the evidence before it, the Tribunal is not persuaded in this case that there is anything in this factor that warrants the exercise of the relevant discretion in the applicant’s favour.

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

170.   The applicant expressed concern that she would be subject to a 3-year ban on the grant of any new visa in the future, if her subclass 457 visa was cancelled.

171.   Accordingly, the Tribunal has 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:

172.   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.

173. The applicant has not disputed 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.

174. Further, a subclass 457 visa is not specified in Part 2 of Schedule 4 of the Regulations. The applicant, given the applicant’s oral evidence at the hearing, the Tribunal finds that she was not the holder of a student visa or a subclass 773 Border visa when her visa was cancelled.

175.   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 did not dispute these matters at the hearing.

176.   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:

177.   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.

178.   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.

179.   In this case, the applicant confirmed that her substantive visa ceased to be in effect on 22 November 2016 when it was cancelled. She also advised that she did not apply for a Bridging visa within the required timeframe to obtain work rights because her then migration agent had advised her to wait until the latter returned to Australia.

180.   Accordingly, the applicant is potentially at risk that subclause 4014(1) could apply to her unless she can persuade a future decision maker to waive the application of this subclause under paragraph 4014(1)(b).

181.   Given the manner in which events have unfolded in this case, the Tribunal considers that this possibility is a matter that points to the favourable exercise of the relevant cancellation discretion. It also expresses the hope that any future decision maker would give due regard to the findings of this decision record in assessing whether to apply public interest criterion 4014 to the applicant.  

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

182. 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.

183. 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.

184.   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.  

185.   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:

186.   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.

187. 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 would not 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. It also acknowledges that the applicant may be at risk of public interest criterion 4014 being applied to her.

188.   Nevertheless, or the reasons it has outlined above, the Tribunal does not accept that the  mandatory legal consequences that might apply to the applicant under the relevant legislation, in general, point to the exercise of the relevant discretion in her favour.

Whether there would be consequential cancellations under section 140

189. As noted earlier, the applicant’s spouse had his subclass 457 visa automatically cancelled under subsection 140(1) of the Act once the applicant’s visa was cancelled. As a result, the Tribunal finds that there is one secondary visa holder whose authority to remain in Australia would be affected by a consequential cancellation under section 140 of the Act.

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

191.   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:

192.   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.

193. As set out in the Tribunal’s section 359A letter dated 29 March 2017, Community Training Initiatives Pty Ltd had its nomination approved on 7 July 2015, a fact neither the applicant nor her then representative has disputed in either their response to this invitation, or at the hearing. In addition, the applicant was granted her subclass 457 visa on 13 July 2015 on the basis of the departmental approval of this business nomination.

194.   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.

195. 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).

196.   Accordingly, 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:

197.   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).

198.   There is little in the evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements.

199.   Specifically, there is no claim or any evidence before the Tribunal that if the applicant returns to Sri Lanka she will face persecution, death, torture, cruel, inhuman or degrading treatment or punishment. Indeed, the applicant indicated at the hearing that she did not have any claim regarding any potential entitlement to a Protection visa. Nor did the applicant make any claim regarding her rights under the CAT or ICCPR.

200.   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. However, as the applicant and her spouse do not have any children, the Tribunal is satisfied that the CAT does not apply in this case.

201.   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.

202.   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:

203.   The applicant did not make any claim to be the victim of family violence, and she confirmed this for the Tribunal at the hearing. Nor is there any evidence to suggest that this might be a relevant consideration.

204.   Accordingly, the Tribunal is satisfied that there is little in the evidence to suggest that this factor is applicable in the applicant's circumstances. Nor does this factor point to the favourable exercise of the relevant discretion.

Any other relevant matters raised by the visa holder:

205.   Importantly, and as discussed with the parties at the hearing, the law regarding the skilled migration program has recently changed. Specifically, on 18 April 2017 the Honourable Prime Minister of Australia and the Minister for Immigration announced significant changes to the skilled occupations that can be nominated and approved for the purposes of the subclass 457 visa programme.[44]

[44]    T1, f.78-79 - Accessed 27 June 2017 & 7 August 2017

206.   The relevant instrument relating to these changes is IMMI 17/060, and it includes the occupation of ‘ICT Customer Support Officer’ (ANZSCO Code 313112) on the ‘Medium and Long-term Strategic Skills List’.[45] As such, the inclusion of this occupation on this list indicates that the Australian government considers such skills to be of strategic medium or long-term value to the Australian community.

[45]    See Legislative Instrument IMMI 17/060, ‘Specification of Occupations – Subclass 457 Visa’,  28 June 2017

207. Given this, the applicant requested that the Tribunal allow her additional time in which to find a new sponsor for the purposes of her subclass 457 visa. In other words, the applicant requested that the Tribunal adjourn the review under subsection 363(1)(b) of the Act for this purpose.

208.   In considering this request, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[46] and Manna v Minister for Immigration and Citizenship[47] where the Courts have held that it is not required to indefinitely defer its decision-making processes. The Tribunal has also had regard to the decision in Minister for Immigration and Citizenship v Li[48] 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[49] which also considered this issue.

[46] [2002] FCA 617

[47] [2012] FMCA 28

[48] [2013] HCA 18 (8 May 2013)

[49] [2014] FCAFC 1 (4 February 2014)

209.   The Tribunal notes that in this case the applicant provided a copy of the primary decision record with the application for review she lodged on 25 November 2016. Accordingly, the applicant has been aware of the reasons for the cancellation of her subclass 457 visa for almost 8.5 months at the time of decision.

210.   In addition, the Tribunal has considered the applicant’s oral evidence that she was not aware of the conditions applicable to her subclass 457 visa, including condition 8107. However, as outlined previously, there are several facets to the evidence that undermine this claim. These included: the fact that the applicant had in her possession a copy of the subclass 457 visa grant notice[50] issued to her; the applicant’s past compliance  with the conditions of the visas granted to her; and the fact that she has not found a new employer willing to sponsor her for a subclass 457 visa in Australia.

[50]    T1, f.61-64

211.   The Tribunal further notes that, even if the applicant were to find a new employer to sponsor her in the reasonably foreseeable future, it is a matter of speculation as to when the Department would finalise any standard business sponsor and/or business nomination applications lodged by that employer, or what the final outcome of those applications might be.  

212.   In addition, the Tribunal has considered whether the representative’s submission[51] that it was unfair for the Department to proceed to cancel the applicant’s visa before it had finalised the business nomination application lodged by Training Experts Australia Pty Ltd provides a basis to give the applicant more time to find a new sponsoring employer.

[51]    T1, f.39 reverse

213.   However, the passage of approximately 9 months since the cancellation of the applicant’s visa on 22 November 2016, which led to the withdrawal of this prospective employer’s business nomination application on 29 November 2016[52], detracts from this argument. In addition, the manner in which events unfolded in November 2016 cannot be undone by the Tribunal in August 2017. Notably, they also relate to issues of administrative processing by the Department over which the Tribunal has no control.

[52] This information was included in the invitation sent to the applicant under section 359A of the Act on 29 March 2017. See T1, f.25-29

214.   Further, as unfortunate as it proved to be for the applicant that Training Experts Australia Pty Ltd withdrew its business nomination application in November 2016, the fact remains that there is little in the evidence to indicate that the applicant has found an alternative sponsor some 8.5 months later at the time of decision.

215.   Finally, the Tribunal observes that the applicant has engaged two separate registered migration agents to assist her with both the notice of intention to consider cancellation, and the application for review.[53]

[53]    D1, f.17-20 & T1, f.13 & 71 reverse

216.   Accordingly, the Tribunal considers it reasonable to expect that each of these professionals would be aware of the purpose of the subclass 457 visa programme, the need for the applicant to find a new sponsoring employer, and that they would have appropriately advised her accordingly. Despite this, there is little in the evidence to suggest that a new sponsor has been found.

217.   For these reasons the Tribunal gives less weight to the applicant’s claim that she was not aware of the conditions on her subclass 457 visa and that she requires further time to find a new sponsoring employer.  

218.   The Tribunal further notes that in Ghori v Minister for Immigration and Citizenship[54], 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”.

[54] [2011] FCA 759 at [22]

219.   On 16 May 2017 the Tribunal received a request to postpone the hearing on medical grounds. The Tribunal acknowledges that the applicant did attend the scheduled hearing on 17 May 2017, at which time she also changed her contact details and cancelled her representative’s authority to receive correspondence on her behalf.

220.   On the other hand, the Tribunal notes that the applicant’s request to adjourn the review for an unspecified period has been made in circumstances where there is a significant degree of uncertainty surrounding whether she would find a new sponsor and what might happen with any sponsorship and business nomination applications lodged by such a party.

221. 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. In particular, the Tribunal considers the sentiment expressed by Perram J in Ghori’s case to have some relevance when it is being asked to adjourn the review so that an applicant can continue searching for a new sponsoring employer 8.5 months after her original subclass 457 visa was cancelled, and approximately 19 months after she had ceased employment with her original sponsor.

222.   As a result, whilst the Tribunal recognises that the applicant has faced a range of practical and legal obstacles in finding a new sponsor, in the particular circumstances of this case it considers she has had sufficient time in which to address the central issues arising in the application for review.

223. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further to allow the applicant to find a new sponsoring employer.

224.   Accordingly, the Tribunal is not persuaded that the additional matters raised by the applicant lend support to the exercise of the discretion not to cancel the subclass 457 in this case.

Summation:

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

Ministerial Intervention

226. Although the applicant did not 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.

227.   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.

228.   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, as is the case here. This is because there are many applicants who fail to meet the legislative criteria for a visa and who nevertheless wish to remain permanently in Australia.

229.   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. Importantly, these guidelines state at paragraph 7 that a case where a person’s visa has been cancelled because they breached their visa conditions would not meet the guidelines for referral to the Minister. 

230.   As a result, the Tribunal does not consider it appropriate to refer the cancellation of the applicant’s visa to the Minister.

231.   As noted previously, the applicant presented to the Tribunal as a reasonably articulate and personable individual. The Tribunal also found the applicants to be frank and credible witnesses who have found themselves in a difficult situation, given the regulatory steps taken in respect of the applicant’s sponsoring employer.

232.   Accordingly, the Tribunal does not seek to dismiss or diminish the concerns the applicant expressed at the hearing about these matters, or how, the cancellation of her visa application has affected her and her spouse, as well as the impact this will have on her extended family.

233.   For these reasons, the Tribunal considers that these claims do raise some compassionate grounds.

234.   However, the Tribunal gives greater weight to the underlying purpose of the subclass 457, including the applicant’s ongoing inability to find a new approved sponsor to nominate her for a subclass 457 visa, either for the remainder of her original subclass 457 visa, or for a new subclass 457 visa.

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

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

DECISION

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

238.   The Tribunal has no jurisdiction with respect to the second-named applicant.

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]

- Accessed 19 May