Raina (Migration)

Raina (Migration) [2021] AATA 1135 (12 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Neillia Raina
Mr Manpreet Singh Jhaba
CASE NUMBER:  2002483
HOME AFFAIRS REFERENCE(S):          BCC2019/4356324
MEMBER:L. Hawas
DATE:12 March 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the first applicant’s Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa.
The Tribunal does not have any jurisdiction with respect to the second applicant.

Statement made on 12 March 2021 at 4:09pm
CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ceased employment for more than 90 days – downturn in business and lower wages paid intermittently – closure for renovations, then closure of business and cancellation of sponsorship – not informed by employer, so did not look for new employer – physical health – application for student visa refused – discretion to cancel visa – visa, study and work history – no new employer found as at date of decision – intention to remain in Australia – potential hardship if visa cancelled – member of family unit – decision affirmed for first applicant, no jurisdiction for second applicant
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140(1), 348
Migration Regulations 1994 (Cth), Schedule 8, condition 8107(3)(b)
CASES
R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Cooperative Limited (1977) 16 SASR 6
Rani v MIMA (1997) 80 FCR 379
Tien v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

Introduction

The first applicant (hereinafter referred to as the applicant) is a 33 year old woman from India.[1] She came to Australia in March 2008 on a student visa.[2] Presently, she lives in Australia with her husband, being the second applicant.[3] On 31 May 2016, the Department of Immigration and Border Protection granted the applicant a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa for four years to 31 May 2020.[4] By written decision dated 4 February 2020, a delegate of the Minister for the Department of Home Affairs cancelled the applicant’s visa. By this application, the applicant seeks a review of that decision. The applicant gave the Tribunal a copy of the delegate’s decision at the time she applied for this review.
[1] The applicant was born on 2 November 1987. See delegate’s decision dated 4 February 2020 at p. 1. The applicant confirmed her date of birth at the hearing on 25 November 2020.
[2] Applicant’s oral evidence at the hearing.
[3] Applicant’s oral evidence at the hearing.
[4] Delegate’s decision at p. 1.
The delegate cancelled the applicant’s visa under s.116(1)(b) of the Migration Act 1958 (Act) on the ground that she did not comply with condition 8107(3)(b) of her visa. That condition provided that if the applicant ceased employment with her sponsoring employer the period during which the applicant ceases employment must not exceed 90 consecutive days. The delegate found that the applicant ceased employment with her sponsoring employer “effective December 2018”[5] and that she ceased that employment for more than 90 consecutive days in breach of condition 8107(3)(b). After considering the matters relevant to the delegate’s discretion to cancel the applicant’s visa the delegate decided to cancel the visa. Consequently, the visa of the second applicant was cancelled under s.140(1) of the Act.
[5] Delegate’s decision at p. 2. The delegate also found that in her response to the department’s notice dated 23 December 2018 of intention consider cancellation of her visa the applicant acknowledged that she was not employed at the time (see p. 2). The applicant’s response, which referred to that notice, was undated but was sent to the department on 28 December 2019. Both documents are located on the department’s file.
The applicants have now applied to this Tribunal for a review of that decision.
For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision before the Tribunal is the decision cancelling the applicant’s visa. The second applicant’s visa was automatically cancelled as a consequence of the applicant’s visa cancellation. Accordingly, the second applicant’s visa was not cancelled by decision but by force of the operation of s.140(1) of the Act. The cancellation of that visa was self-executing on the cancellation of the applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the cancellation of the second applicant’s visa under s.140(1), the Tribunal has no jurisdiction with respect to him.
Accordingly, in this review, the Tribunal must decide whether the ground for cancelling the applicant’s visa is made out, and if so, whether the visa should be cancelled.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

Procedural matters

The applicant appeared before the Tribunal on 25 November 2020 to give evidence and present arguments.
The applicants were represented in relation to the review by their registered migration agent. The agent attended the hearing.
The hearing was held during the COVID-19 pandemic. The Tribunal exercised its discretion to hold the hearing by video conference (Microsoft Teams). The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick. The hearing of the matter would have been delayed if it was not to be conducted by video conference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments at the hearing.
By email on 18 November 2020 (before the hearing), the Tribunal received written submissions with attachments from the applicant’s representative (pre-hearing submissions). The submissions were signed by the applicant underneath the following statement:
“I, Neilla Raina declare that the above information provided is true and correct………”
After the hearing concluded on 25 November 2020, the Tribunal received further documents from the applicant’s representative. The Tribunal has considered the applicant’s pre-hearing submissions and the attachments to them as well as the documents the Tribunal received after the hearing.

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

The Minister or the Tribunal (on review) may cancel a visa under s.116(1)(b) of the Act if satisfied that the visa-holder has not complied with a condition of the visa.
Here, the applicant’s visa contained condition 8107(3)(b), which provided that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.[6]
[6] Delegate’s decision p.2 and the department’s records on the Integrated Client Services Environment (ICSE).
The Tribunal has the following evidence before it relevant to whether the applicant has not complied with condition 8107(3)(b) and whether the ground to cancel the applicant’s visa under s. 116(1)(b) has been made out:
(a)The applicant was granted her 457 visa on 31 May 2016. The term of the visa was four years. Had the delegate not cancelled the visa, the term of the visa would have expired on 31 May 2020.[7] At the time the delegate cancelled the applicant’s 457 visa the standard business sponsor who sponsored the applicant for her visa was Avadh Australia Pty Ltd (Avadh).[8] The applicant’s approved occupation with Avadh was as a baker;[9]
[7] Delegate’s decision at p. 1.
[8] Delegate’s decision at p. 2 and applicant’s pre-hearing submissions.
[9] Applicant pre-hearing submissions.
(b)Avadh owned and operated a Brumby’s bread franchise at Hamilton Place in Mt Waverly, a suburb in Melbourne. The applicant worked as a baker in Avadh’s Mr Waverley outlet. Avadh’s principal with whom the applicant dealt was a gentleman by the name of Kiran Patal (Patel). Patel took over the business in about April 2017 from Jayati Dave;[10]
[10] Applicant’s oral evidence at the hearing.
(c)The applicant’s contracted salary was $54,000 a year as a full time employee;[11]
[11] Applicant’s oral evidence at the hearing.
(d)A few months after Patel took over the business, he began to fall behind in paying the applicant her periodic wages. The payments became irregular and less than the contracted amount. When the applicant questioned Patel about her pay he said that business was slow and he would need time to make the business profitable. He said the applicant should keep working and he would make up the shortfall later when business improved;[12]
[12] Applicant’s pre-hearing submissions.
(e)In about April 2018, Patel told the applicant that the business was slow and that he would be giving her less shifts. From about that time, the applicant worked for Avadh casually and Patel paid her either an hourly rate or random lump sums, sometimes in cash. Patel told the applicant that he would fix any shortfall in payment after he had spoken to his accountant. When the applicant told Patel that if he did not make up the shortfall in her pay she would complain. Patel told the applicant that if she complained he would tell the department that she did not work for Avadh anymore and will have her visa cancelled and then deported. Patel told the applicant that he would not assist her to obtain permanent residency if she complained;[13]
[13] Applicant’s evidence at the hearing and applicant’s pre-hearing submissions.
(f)In the 2018 financial year Avadh paid the applicant $36,654 (before tax) in salary.[14] That was well below her contracted annual salary of $54,000;
[14] Applicant’s 2018 tax return attached to her pre-hearing submissions.
(g)In September or October 2018, the local council inspected Avadh’s business premises and found that the bread prover, the dough mixer, and the oven were not working properly and there were a few chips on the ground. The council required the defects be fixed. Around that time, Patel told the applicant that business was slow and the bakery was old and needed to be renovated. He said that he wanted to close the store for a couple of months to renovate it. He told the applicant that there was no work for her to do while the bakery was closed. He said that she should not return to work until he called her and asked her to return;[15]
[15] Applicant’s oral evidence at the hearing.
(h)The applicant’s final day at work was sometime in October 2018;[16]
[16] Applicant’s oral evidence at the hearing.
(i)Between October 2018 and March 2019, the applicant called Patel four or five times and asked for a return date to work.[17] On each occasion, Patel told the applicant that the renovation of the Mt Waverly store was still proceeding and she could not return to work yet. During some of those conversations the applicant told Patel that she was worried about the 90 day condition on her visa and she wanted to return to work to avoid breaching that condition. Patel said that the applicant should not worry because the applicant was still employed. He said that if immigration contacted him about a breach of the applicant’s 90 day visa condition he would tell them that the Mt Waverly store was being renovated and she was still employed;[18]
[17] The applicant’s evidence at the hearing about when she spoke to Patel after her last day at work was unclear. She said that she spoke to him four or five times between October 2018 and March 2019 but said that as far as she could recall the last time she spoke to him was in November or December 2018. She said that after that time she focused on trying to fall pregnant and did not focus much on work.
[18] Applicant’s oral evidence at the hearing.
(j)Patel never asked the applicant to return to work;[19]
[19] Applicant’s oral evidence at the hearing.
(k)The applicant learned in March 2019 that she had fallen pregnant. In May 2019 she collapsed at home and was subsequently diagnosed with an ectopic pregnancy. On 4 May 2019, the applicant had surgery to address that problem but she lost her baby as a result of the surgery;[20]
[20] Applicant’s oral evidence at the hearing.
(l)The applicant suffered from several complications after her surgery. She could not walk for more than five minutes for a while after surgery. In June 2019 her naval became infected. After anti-biotics did not clear the infection she was diagnosed with fluid in her naval, which required surgery. She is not to have that surgery until December 2020 because of COVID-19 related delays. Those health problems left her emotionally and physically drained and prevented her working or looking for work during the time she was suffering from them;[21]
[21] Applicant’s oral evidence at the hearing.
(m)By letter dated 2 September 2019 to Australian Border Force, Patel informed Border Force that Avadh closed its business in December 2018 due to continuous losses.[22] The letter was sent in response to a letter from Border Force dated 30 August 2019. The applicant stated that Avadh sent the letter to Border Force in response to a NOITTA (Notice of Intention to Take Action);[23]
(n)The applicant received a letter from Border Force dated 24 September 2019 informing her that Avadh’s sponsorship agreement had been cancelled and that Avadh was no longer an approved business sponsor. The letter also provided that as Avadh was no longer an approved sponsor her visa could be cancelled and that she needed to obtain a sponsorship from an approved sponsor to ensure her continued eligibility to remain in Australia;[24]
(o)On 9 October 2019, the applicant applied for a student visa.[25] She applied for a student visa after receiving the letter from Border Force dated 24 September 2019. She applied for the visa because she did not know what else to do at the time. She wanted to remain in Australia and needed authority to remain. She did not want to be “illegal” and applied for the visa in an attempt to remain in Australia legally;[26]
(p)The department refused the application for a student visa on 28 January 2020.[27] The application was refused because the applicant’s migration agent at the time included incorrect information in the GTE statement and application;[28]
(q)Until she received the letter from Border Force dated 24 September 2019, the applicant did not know that Avadh had closed its business and did not realise that she might be in breach of the conditions of her visa. Given what Patel had told her, she thought her employment remained ongoing and she would be okay because she would be able to return to work for Avadh. After receiving the letter from Border Force dated 24 September 2019, the applicant searched for work but was not able to locate any. If she knew that Avadh had closed its business or her employment had ended earlier she would have looked for a new employer. She did not look for a new employer before September 2019 because she thought she was still employed by Avadh. Also, she did not have searching for work on her mind because of the loss of her child in May 2019, which left her devastated;[29]
(r)Subsequently, the applicant received from the Department of Home Affairs a notice of intention to consider cancellation of her visa dated 23 December 2019. In the notice, the department stated that the applicant’s sponsor (Avadh) had advised the department that the applicant ceased employment with it “effective December 2018”;[30]
(s)The applicant responded to the notice of intention to consider cancellation of her visa on 28 December 2019. In that response, the applicant stated that “I tried my best to find another employer for a few months but due to my medical condition things went down the track……… She went on to set out the medical problems she suffered after falling pregnant. The applicant also stated that she applied for a student visa to sharpen her skills for future jobs back home as part of the effort to get back on track after recovering from her medical problems. The applicant stated that she lost track emotionally, physically, and mentally but was now in a better state of mind;
(t)Patel did not ever inform the applicant that he was going to close the business (or that he had closed the business). He did not ever notify the applicant (whether in writing or orally) that her employment was terminated;[31]
(u)In the cancellation decision, the delegate found that the applicant ceased employment in the nominated position with her approved sponsor “effective December 2018”;[32] and
(v)The applicant accepted that she knew it was a condition of her visa that she could not cease employment with Avadh for more than 90 consecutive days.[33]
[22] The letter was attached to the applicant’s pre-hearing submissions. The letter was not sent to the applicant. The applicant obtained it from the department’s file during this review process and provided it to the Tribunal with her pre-hearing submissions.
[23] Applicant’s pre-hearing submissions.
[24] The applicant’s referred to the letter in her pre-hearing submissions and during her oral evidence at the hearing. The applicant stated she received the letter. The letter is contained on the department’s file.
[25] Delegate’s decision at p. 3 and department’s decision record dated 28 January 2020, which the applicant sent to the Tribunal after the hearing.
[26] Applicant’s oral evidence at the hearing.
[27] Department’s decision record dated 28 January 2020, which the applicant sent to the Tribunal after the hearing.
[28] Applicant’s oral evidence at the hearing.
[29] Applicant’s pre-hearing submissions and oral evidence at the hearing.
[30] Applicant’s pre-hearing submissions. The notice of intention to consider cancellation of the applicant’s visa on the department’s file.
[31] Applicant’s oral evidence at the hearing.
[32] At p. 2.
[33] Applicant’s oral evidence at the hearing.
In this case, for the power to cancel the applicant’s visa to be enlivened under s. 116(1)(b) of the Act for breach of condition 8107(3)(b), she must have ceased employment with Avadh and not resumed employment within the following 90 consecutive days.
In her pre-hearing submissions, the applicant argued that she never ceased employment with Avadh because the company (or Patel) did not give her any notice terminating her employment, and it did not express to the applicant any intention to terminate her employment. Accordingly, the applicant did not breach condition 8107(3)(b) of her visa and the power to terminate her visa under s. 116(1)(b) was not enlivened. [34] At the hearing, the applicant’s agent stated that the policy applied by the Department of Home Affairs provided that for the purpose of condition 8107(3)(b) of a 457 visa, a visa holder’s employment would not cease unless the employer gave the employee (or vice versa) written notice of termination.
[34] The applicant’s agent also made the argument orally at the hearing.
In support of that argument, after the hearing the applicant’s agent sent the Tribunal an extract from a policy document from the Department of Immigration and Border Protection in relation to condition 8107 of 457 visas. The extract was printed on 25 November 2020. The Tribunal assumes the document was current as at that date. Under the heading, “4.2.5 Must not cease employment for more than 60 days” the policy document provides as follows:
“Ceasing employment
A subclass 457 visa holder is considered to have ceased employment if:
· the employer or employee gives written notice that employment will cease, or has ceased, on a particular date: and
· the date has passed.”

The policy also provides as follows:
“Unauthorised absences from work
A subclass 457 visa holder who is absent without leave (AWOL) from, or who abandons, their employment may be regarded as have ceased employment if the employer has attempted to give notice that employment will cease, or has ceased, on a particular date, and that date has passed………”
The Tribunal does not accept the applicant’s argument that the department’s policy prescribes the only circumstances in which a visa holder’s employment will cease within the meaning of condition 8107(3)(b) of a 457 visa and that employment can only cease in instances where the employer (or employee) gives written notice of employment ceasing. The Tribunal rejects the argument for three reasons. First, condition 8107(3)(b) itself does not refer to employment ceasing only on written notice by either the employer or employee. It refers only to the visa holder ceasing employment for more than 90 consecutive days. Those words should be given their plain and ordinary meaning. The words (and effect of those words) of condition 8107(3)(b) should be preferred over any department policy. Second, the department’s policy sets out the general approach it will take to determine whether employment will cease in any particular instance for the purpose of condition 8107(3)(b). By its terms, the policy does not set out the only circumstances in which employment can cease within the meaning of that condition. Third, even if the policy were to be elevated to a prescription that governed condition 8107(3)(b), the relevant part of the policy as set out in paragraph 17 above is not expressed in mandatory terms. It is expressed in permissive terms. It provides that employment will be considered to have ceased if written notice of termination is given. But it does not state that employment can only cease in those circumstances. That is reinforced by the part of the policy set out in paragraph 18 above, which refers to employment ceasing in circumstances where the employee abandons employment. The policy leaves scope for employment to cease for the purpose of condition 8107 (3)(b) in circumstances not specifically referred to in the policy.
Turning then to whether the applicant ceased employment with Avadh and, if so when, at the hearing the applicant said that her last day at work with Avadh was in October 2018. However, it does not necessarily follow that the applicant ceased employment with Avadh on that day. The effect of the applicant’s evidence was that Patel told the applicant that he needed to close the Mt Waverly store temporarily in order to complete the planned renovations and that he would advise her when the store would reopen and she could return to work. It was in that context that the applicant attended work for the last time on a date in October 2018. The Tribunal considers it more likely that Avadh placed the applicant on unpaid leave at that time pending the store renovation being completed. On the evidence before it, the Tribunal does not find that the applicant ceased employment with Avadh in October 2018 when she attended work for the last time.
But come 2 September 2019, Avadh’s position on the applicant’s employment was either made plain or changed. By its letter to Border Force of that date[35], Avdah stated that closed its business in December 2018. Avadh did not state that it operated another bakery (other than the Brumby’s store in Mt Waverley) at which the applicant could work and it did not state that it required the applicant to continue to work for it in some other capacity. It just stated that it ceased trading entirely in December 2018. The applicant does not dispute that Avadh closed its business in December 2018. She maintains only that she did not learn of or suspect the closure of Avadh’s business until September 2019. On the evidence before the Tribunal, the applicant’s last day at work was in October 2018, Avadh closed its business in December 2018, and the applicant did not ever return to work for Avadh.
[35] Which the applicant gave the Tribunal with the pre-hearing submissions.
On the evidence before the Tribunal, the applicant’s position as a baker with Avadh was made redundant when Avadh closed its business in December 2018. By closing the business, Avadh no longer required the applicant (nor anybody else) to perform her job as a baker. Legally, that constitutes dismissal by redundancy. In R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Cooperative Limited[36], Bray CJ described the position this way:
...a job becomes redundant when the employer no longer desires to have it performed by anyone. A dismissal for redundancy seems to be a dismissal, not on account of any personal act or default of the employee dismissed or any consideration peculiar to him, but because the employer no longer wishes the job the employee has been doing to be done by anyone.
[36] (1977) 16 SASR 6.
Accordingly, the Tribunal finds that the applicant ceased employment with Avadh in December 2018 when Avadh closed its business. After that time there was no position with Avadh for the applicant to resume. The applicant did not return to work for Avadh (or any other employer) for 90 consecutive days from December 2018. On that analysis, the applicant breached condition 8107(3)(b) of her visa and the power to cancel her visa under s. 116(1)(b) of the Act has been made out.
However, on the evidence before the Tribunal, Avadh did not ever inform the applicant that it had closed its business or that her employment had ceased. The applicant first learnt that might be the case when she received the letter from Border Force dated 24 September 2019 informing her that Avadh’s sponsorship as a standard business sponsor had been cancelled. On her evidence, the applicant realised at that point that she might be in breach of condition 8107(3)(b) of her visa and she applied for a student visa on 9 October 2019 in order to try and remain in Australia legally.
From her response to the notice of intention to cancel her visa that she sent to the department on 28 December 2019, it is plain that the applicant was not employed as at that date. In the letter the applicant seems to refer to having looked for new employment before she suffered the medical complications from her pregnancy,[37] which on her evidence was in May 2019. Also, the applicant said at the hearing that as far as she can recall the last time she spoke to Patel was in November or December 2018. Subsequently, Patel never asked the applicant to return to work whether verbally or in writing. So on that evidence, by May 2019, the applicant would have known, or at least suspected, that she would not be returning to work for Avadh. But for the purpose of the present analysis the Tribunal will assume that the applicant did not know, or did not have grounds to suspect, that her employment with Avadh had ceased until 24 September 2019 when she received the letter from Border Force.
[37] See paragraph 14(s) above.
So, if the applicant’s employment did not strictly cease in December 2018 for the purpose of condition 8107(3)(b) because she did not know Avadh had closed its business and no longer required her for work (being the implicit submission her agent made to the Tribunal), that changed on about 24 September 2019. At that time she received the letter from Border Force informing her of the cancellation of Avadh’s approval as a standard business sponsor and that her visa could be cancelled as a result. The letter also informed the applicant that in order to avoid cancellation she needed to have an approved nomination in place with an approved standard business sponsor. Given that the applicant had not by that time worked for Avadh for nearly 12 months, she would have realised that she would not be returning to work for Avadh. She would also have realised (or at least had solid grounds to suspect) that her employment with the company had ceased. The applicant confirmed that by her conduct when she applied for a student visa on 9 October 2019 in an attempt to remain in Australia legally.
Accordingly, even if the Tribunal takes the date the applicant learnt she would not be returning to work for Avadh, being about 24 September 2019, as that date the applicant ceased work with the company, the underlying position does not change. The applicant did not return to work for Avadh (or any other employer) for 90 consecutive days from 24 September 2019. On that more favourable analysis of the applicant’s position, she still breached condition 8107(3)(b) of her visa and the power to cancel her visa under s. 116(1)(b) of the Act has still been made out.
The Tribunal considers the applicant’s breach of condition 8107(3)(b) of her 457 visa to be serious. After ceasing work with Avadh, the applicant was not able to secure another application to sponsor her for a visa. The Tribunal returns to that matter below.

Consideration of the discretion to cancel the applicant’s visa

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

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

During the hearing, the applicant said that:
(a)She came to Australia on a student visa in 2008;
(b)Between 2008 and 2015:
(i)She obtained a diploma of business from the Melbourne Institute of Technology;
(ii)Subsequently, she obtained certificates III and IV in patisserie from the Australian Institute of Technology;
(c)In 2015 she located the position as a baker with Avadh who applied to sponsor her for a 457 visa;
(d)After her 457 visa was granted on 31 May 2016 she worked for Avadh as a baker until her employment ceased as set out in paragraphs 21 to 26 above; and
(e)She wants to remain in Australia to do further study and sharpen her skills. She wants to study for a Diploma of Hospitality Management.
As set out in paragraph 25 above, in her written response to the notice of intention to consider cancellation of her visa, the applicant seemed to say that she tried to locate a new employer before she suffered the complications from her pregnancy in May 2019. From there, her search for work was hindered by her medical problems. At the hearing she said that after May 2019 she was not focused on searching for work because she was devastated by the loss of her baby.
In her pre-hearing submissions, the applicant stated that after she learnt on 24 September 2019 of the cancellation of Avadh’s approval as a standard business sponsor, she again searched for a new employer but could not locate one. At the time, the applicant was still struggling with complications from her pregnancy. She was also in shock and depressed. In support of that claim, the applicant submitted to the Tribunal a bundle of tax invoices, discharge summaries, appointment letters, referral letters, prescription scripts, and test results setting out the medical problems she suffered between the middle of 2019 and late 2020.
A 457 visa is a temporary visa that provides for skilled people (and their immediate families) to come to Australia to work for an approved employer for up to four years. The visa operated on the premise that it would not undermine job opportunities for Australians. The 457 scheme allowed visa holders to fill roles where there was a genuine skills shortage or, in effect, where a suitably qualified Australian worker is not available.[38]
[38] Larsen G; The subclass 457 Visa: a quick guide; Parliament of Australia at >
The applicant’s stay in Australia on her 457 visa was for the purpose of working for Avadh to fill a need that employer had for a baker, which it could not fill with a suitably qualified Australian worker. When the applicant learnt in late September 2019 that she would not be returning to work for Avadh, given condition 8107(3)(b) of her visa, she effectively had 90 days to locate another sponsoring employer in order to remain within the conditions of her visa. In reality, the applicant had from well before that time to find a new employer. It appears from the letter the applicant sent to the department on 28 December 2019 that she began looking for a new employer before May 2019 when she suffered from her pregnancy complications. As set out in paragraph 25 above, the applicant would have known, or at least suspected, well before late September 2019 that she would not be returning to work for Avadh. In the end, the applicant was not able to locate another sponsoring employer (or secure a new application to nominate her for a visa) within 90 days of either December 2018 when Avadh ceased trading (and her position as a baker was no longer available), early to mid 2019 when she appears to have searched for work, or 24 September 2019 when she was informed that Avadh’s approval as a standard business sponsor was cancelled. After 90 days from 24 September 2019 at the latest (if not earlier), the applicant fell into breach of condition 8107(3)(b). From that point, the applicant’s continued stay in Australia on her 457 was in tension with the purpose of that visa.
Despite apparently searching for a new sponsoring employer in early to mid 2019 and then in late 2019, the applicant has not to date been able to secure a new nomination. Although condition 8107(3)(b) of the applicant’s 457 visa contemplated that she would have some time (90 days) to locate a new sponsoring employer after her employment ceased, it did not contemplate the applicant remaining in Australia for such an extended period – now nearly two years from early 2019 – to search for work. That purpose (extended search for work) is not consistent with the purpose of the applicant’s visa.
The applicant’s wish to remain in Australia even longer now to study in order to sharpen her skills ultimately counts against her in this review. Remaining in Australia to study is not consistent with the purpose of her 457 visa.
The applicant has now had well over 90 days of ceasing her employment with Avadh, and thus a reasonably opportunity, to locate a new sponsoring employer in Australia but has been unable to do so.
Accordingly, the Tribunal weighs the following matters heavily in favour of cancelling the applicant’s visa:
(a)The seriousness of the applicant’s breach of condition 8107(3)(b) of her visa. The applicant ceased employment with Avadh in December 2018 and learnt in late September 2019 (if not earlier) that she would not be returning to work for Avadh. To date she has not secured a new nomination application;
(b)The applicant has now had a reasonable opportunity to secure a new nomination but has not been successful; and
(c)The applicant’s wish to remain in Australia to study and improve her skills is not consistent with the purpose of her 457 visa.
The Tribunal has considered the applicant’s claim that her search for a new sponsoring employer was hampered by the medical complications and depression from which she suffered from about May 2019. The Tribunal accepts those matters either distracted the applicant from searching for a new employer or hampered her search and it weighs that against cancelling the applicant’s visa. But the weight the Tribunal places on that matter is limited. As stated in paragraphs 37 and 38 above, the applicant has now had well over 90 days of ceasing her employment with Avadh, and thus a reasonably opportunity, to secure a new nomination but has been unable to secure one.
Insofar as the applicant claims that she wants to remain in Australia on a 457 visa to continue to undergo medical treatment for the complications from her pregnancy or as a means of ultimately securing permanent residency in Australia and all the benefits that entails (including health care and economic opportunity), the Tribunal weighs those matters against cancelling the applicant’s visa. But the weight the Tribunal places on those matters is limited. Remaining in Australia to undergo health care is not consistent with the purpose of a 457 visa. Although the Tribunal acknowledges that a 457 visa is often a pathway to permanent residency in Australia (and all the benefits that affords including health care and economic opportunity), hence the weight the Tribunal has given the claim (albeit limited), a 457 visa is temporary and it does not come with any guarantee or express representation of permanent residency. Strictly, remaining in Australia to explore permanent residency avenues is not consistent with the purpose of her 457 visa.
Although the applicant did not make this claim, the Tribunal has taken into account the impact of the COVID-19 pandemic and the resulting business shutdowns and interruptions in Victoria from about March 2020. Those matters would have hampered the applicant’s search for a new employer and it weighs that against cancelling the applicant’s visa. But the weight the Tribunal places on that matter is reduced by the length of time the applicant has had in Australia to locate a new employer, which time was not all impacted by COVID-19 related business shutdowns.
Under this purpose-of-the-457-visa head, the Tribunal has weighed the matters set out in paragraph 38 above heavily in favour of cancelling the applicant’s 457 visa. The Tribunal has weighed the matters set out in paragraphs 39 to 41 above against cancelling the visa. Those matters mitigate the weight the Tribunal places on the matters in paragraph 38 above but do not outweigh them entirely.
Otherwise, the Tribunal does not consider the applicant to have a compelling need to remain in Australia.

The extent of compliance with visa conditions

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

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

If the applicant’s 457 visa is cancelled, subject to any application she might make to extend her stay in Australia (and that of her husband the second applicant), she will not have the authority to remain and she will have to return to India with her husband.
The applicant claims she will suffer the following instances of hardship if her visa is cancelled and she must return to India with her husband:
(a)She has been in Australia with her husband for about 12 years and they have become accustomed to life here and have embraced the culture;[39]
(b)If she returns to India with her husband because of the cancellation of her visa, “it will cause a lot of mental pain and hardship”;[40]
(c)The second applicant is working in Australia as an Uber driver and supporting his parents in India and assisting them to pay off loans. If the applicants must return to India the applicants and the second applicant’s parents will suffer economic hardship because of the second applicant’s inability to support his parents with income from Australia;
(d)The social structure and culture in Punjab, where the applicants are from, will frown on the applicants returning home because their visa was cancelled;[41] and
(e)The applicant will be humiliated and suffer from a social stigma if she returns to India childless because her visa was cancelled.[42]
[39] Applicant’s pre-hearing submissions.
[40] Applicant’s pre-hearing submissions.
[41] Applicant’s pre-hearing submissions.
[42] Applicant’s oral evidence at the hearing.

The Tribunal accepts that the applicant and her husband will suffer the claimed instances of hardship if the applicant’s visa is cancelled and she is required to return to India with her husband. The Tribunal accepts that the applicants have become accustomed to life in Australia after 12 or so years here and that it will be difficult for them to readjust to life in India. The applicant and her husband would have established a network of friends in Australia and other ties to the country in their time here. The Tribunal also accepts that the second applicant leaving his current job in Australia and returning to India will visit some hardship on him, the applicant, and his parents. He might not be able to secure work quickly in India, and even if he does, the work might not be as well remunerated. The same applies to the applicant. That is compounded by the current COVID-19 pandemic, which can only interfere with the applicants’ attempts to find work in India. The Tribunal also accepts that the applicants will suffer some embarrassment if they return to India after 12 years in Australia and that will be compounded by them returning childless by way of visa cancellation (as the applicant has claimed). The Tribunal weighs those matters against cancelling the applicant’s visa.
But the applicant is 33 years old. The second applicant is also 33 years old.[43] The Tribunal considers that although having to re-adjust to life in India will entail some challenges for the applicant and her husband, they will still be able to re-establish their lives in India. The applicant and her husband are young. That will be in their favour when seeking to re-establish their lives and careers. The applicant’s Australian qualifications can only assist her in re-establishing her career. There is no evidence that they could hinder her and that does not follow as a matter of logic. Those matters mitigate the weight the Tribunal places on the applicant’s hardship claims.
[43] According to the Tribunal’s records as derives from the applicant’s application for review, the second applicant was born on 17 November 1987.
On balance, the applicant’s hardship claims weigh against cancelling the applicant’s visa, although their weight is reduced by the matters set out in the preceding paragraph.

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

The applicant claims she ceased employment with Avadh in the circumstances set out in paragraphs 14(d) to (o) above.
In her pre-hearing submissions the applicant also stated that Avadh (and Patel) exploited her due to her dependence on her employment continuing in order to remain within condition 8107(3)(b) of her visa. Patel told the applicant he would only assist her to obtain permanent residency if she worked on wages lower than that Avadh had contracted to pay her. In support of her claim, the applicant referred to a Migrant Workers Taskforce report in 2019, which recognised that temporary migrant workers in Australia were vulnerable to underpayment and exploitation in Australian workplaces because of, amongst other things, their dependence on their employer for their right to remain in Australia (either temporarily or permanently).
The applicant’s employment ceased because Avadh closed its business. Plainly, that was beyond her control. The Tribunal accepts that Patel told, or represented to, the applicant that he would re-open the business after closing it for renovations and would inform the applicant when she could return to work. The Tribunal also accepts that Patel ignored the applicant’s requests to return to work; he never asked her to return or gave her a return date despite saying he would. The Tribunal also accepts that at least for the 2018 financial year Avadh underpaid the applicant. That supports the applicant’s claims that Avadh exploited her by requiring her to work for less than the contracted salary. The Tribunal also acknowledges the vulnerable position in which employees on 457 visas find themselves when dealing with an unscrupulous employer. An employee in that position will not want to lose his employment to avoid falling foul of condition 8107(3)(b) (as well as other conditions) and will want the employer’s cooperation to assist with obtaining permanent residency given a 457 visa is often a pathway to that status. It weighs all of those matters against cancelling the applicant’s visa.
The Tribunal also accepts that the applicant suffered from medical problems associated with her pregnancy from about May 2019. That interfered with her ability to locate work and then to perform her job in the event she was able to locate work. It would also have interfered with her ability to return to work for Avadh if Patel asked her to return (which did not occur). Again, those matters were beyond the applicant’s control. It also weighs those matters against cancelling the applicant’s visa.

Past and present behaviour towards the Department

There is no evidence before the Tribunal that the applicant has not cooperated with the Department. The Tribunal has weighed that against cancelling the applicant’s visa.

Whether there would be consequential cancellations under s. 140

The second applicant’s visa was cancelled consequentially because of the cancellation of the applicant’s visa. There is no evidence that the cancellation of the applicant’s visa would result in the separation of the applicant from the second applicant. Accordingly, this consideration is neutral. In relation to any hardship on the second applicant by reason of the applicant’s visa cancellation, the Tribunal has considered that in paragraphs 45 to 49 above.

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

The applicant is currently in Australia lawfully on a bridging visa E pending the outcome of this review.[44]
[44] Departments record on ICSE.
If the applicant’s current bridging visa E ceases on the Tribunal affirming the delegate’s decision to cancel the applicant’s 457 visa, in the absence of the Minister granting the applicant another visa, she will not have authority to remain in Australia. If that is the case, the applicant and her husband will have the opportunity to depart Australia. Whilst their continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision. Nevertheless, the Tribunal has weighed that possibility against cancelling the applicant’s visa.
Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s. 116 of the Act, may apply for certain prescribed classes of visas but not others in Australia. Regulation 2.12 of the Regulations prescribes the classes of visas. Consequently, this limits what visa applications the applicant can make whilst onshore. The Tribunal has taken that potential limitation on the applicant’s future visa applications actions into account and weighed that against cancelling the applicant’s visa.
The Tribunal has considered the potential impact of Public Interest Criteria (PIC) 4013 and 4014 on the applicant.
The cancellation of the applicant’s visa will not attract the necessary risk factors to invoke PIC 4013. That has a neutral impact on this review.
At the time the delegate cancelled the applicant’s visa on 4 February 2020, the applicant held a bridging visa A. That visa was granted consequent upon the applicant having applied for a student visa. That application was refused on 28 January 2020. That visa ceased on the cancellation of the applicant’s 457 visa. The applicant was then granted a bridging visa E on 19 February 2020 consequent on having applied for this review.[45] That visa expired on 11 March 2020. It was replaced by a subsequent bridging visa E on the same day.[46] Given those matters, the cancellation of the applicant’s visa will not immediately attract the risk factors necessary to invoke PIC 4014 because the applicant has never been in Australia without a bridging visa for more than 28 days after a substantive visa ceased to have effect. That also has a neutral impact on this review. But the Tribunal acknowledges that, depending on what happens between the date of this decision and when the applicant leaves Australia, PIC 4014 could be invoked and the applicant could be impacted by it. The Tribunal approaches the matter on the grounds that PIC 4014 could be invoked at the time the applicant leaves Australia. In that event, the applicant will not be able to obtain a visa from offshore within three years of leaving. If she subsequently wants to return on another visa within three years of leaving, the Tribunal has considered the possibility that the applicant will not be able to make out the necessary compelling or compassionate circumstances justifying a visa grant in order to obtain a visa in those circumstances. The Tribunal has weighed that possibility against cancelling the applicant’s visa. But the weight is limited. The plain intent of PIC 4014 is to restrict future entry into Australia by people affected with the stated risk factors. It should be allowed to operate according to its terms.

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

[45] The applicant applied for this review on 17 February 2020.

[46] Departments records in ICSE.

The Tribunal has considered Australia’s international obligations including its non-refoulement, family unity, and best interests of the children obligations. Those obligations are not engaged by the cancellation of the applicant’s visa.

Other relevant matters

The Tribunal notes that the travel restrictions currently being applied by countries around the world because of the COVID-19 pandemic might impede the applicant and her husband from returning to India. While the applicant and her husband, as holders of temporary visas, are not prevented from leaving Australia they might be subject to international border restrictions in India preventing their re-entry.[47] The Tribunal has weighed the possibility that the applicant’s return to India might be complicated by international border restrictions against exercising its discretion to cancel the applicant 457 visa. But if international border restrictions are likely to complicate the applicant’s return, it is open to her and her husband to apply for bridging visas allowing them to remain in Australia while arranging their return to India.[48] That reduces the weight the Tribunal places on this consideration.

Conclusion on discretion

[47] type="1">

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

The Tribunal considers the applicant’s breach of condition 8107(3)(b) of her visa to be a substantial one. After ceasing employment with Avadh she was not able to secure a new nomination application. The Tribunal weighs the matters set out in paragraph 38 above heavily in favour of cancelling the applicant’s visa.

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

But the Tribunal considers that, on balance, the matters that weigh against the Tribunal cancelling the applicant’s visa (including that the applicant ceased employment with Avadh in circumstances that were beyond her control) do not outweigh the matters set out in paragraph 38 above. The Tribunal concludes that the correct and preferable exercise of its discretion favours affirming the delegate’s decision to cancel the applicant’s 457 visa.

DECISION

The Tribunal affirms the decision to cancel the first applicant’s Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa.
The Tribunal does not have any jurisdiction with respect to the second applicant.
L. Hawas
Senior Member

Key Legal Topics

Areas of Law

Immigration
Administrative Law

Legal Concepts

Judicial Review
Procedural Fairness
Jurisdiction
Breach
Remedies
Statutory Construction

[2021] AATA 1135

12 March 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Breach

Remedies

Statutory Construction