Singh (Migration)

[2017] AATA 207

Singh (Migration) [2017] AATA 207 (14 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Satbir Singh

CASE NUMBER:  1608055

DIBP REFERENCE(S):  BCC2015/1957229

MEMBER:Louie Hawas

DATE:14 February 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 14 February 2017 at 8:38pm

CATCHWORDS

Migration – Cancellation – Temporary Work (Skilled) visa – Subclass 457 – Sponsored bar – Tribunal discretion – Unemployed 14 months – Not secured new employment – Circumstances beyond control – Ceased employment exceeding 90 consecutive days

LEGISLATION

Migration Act 1958, ss 48, 116, 140M

Migration Regulations 1994, r 2.12, r 2.43(1)(l)(iv), cl 457.223(4), Condition 8107

CASES

Brennan J in Re Drake (No. 2) (1978-1980) 2 ALD 634
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 28 May 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 457 Temporary Work (Skilled) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) of the Act because a prescribed ground for cancelling the applicant’s visa existed. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

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

   The evidence before the Tribunal

4. The delegate’s decision record, which was provided to the Tribunal in the review, recorded the following:

   (a)On 26 November 2012, the applicant was granted a Temporary Business Entry (Class UC), Temporary Work (Skilled) (Subclass 457) visa, which was to remain current for four years until 26 November 2016;

   (b)The standard business sponsor who most recently nominated the applicant for a 457 visa was Lagan One Investment Pty Ltd trading as Vision Art Printing (Lagan). The nomination was approved on 12 November 2012;

   (c)On 3 July 2015, a delegate of the Minister:

   (i)cancelled Lagan’s approval as a standard business sponsor under s. 140M(1)(a) of the Act; and

   (ii)barred Lagan from making future applications for approval as a standard business sponsor for three years under s. 140M(2) of the Act;

   (d)Regulation 2.43(1)(l)(iv) of the Migration Regulations 1994 (Regulations) prescribed a cancellation of a sponsor’s approval as a standard business sponsor under s. 140M of the Act as a ground for cancelling a 457 visa under s. 116(1)(g);

   (e)The applicant did not respond to the department’s notice of intention to cancel his visa asking him to explain why his visa should not be cancelled;[1]

   (f)There was no record on the department’s file of a new nomination application having been made on the applicant’s behalf;

   (g)If the delegate cancelled the applicant’s visa, the applicant will not be prevented from applying for a new 457 visa offshore, and being granted a new visa, if he was able to find an approved sponsor. The circumstances in which the applicant’s visa was cancelled will not attract the application of Public Interest Criteria 4013, which could have prevented him from applying for and being granted a new visa offshore; and

   (h)The delegate cancelled the applicant’s visa on 28 May 2016. 

   [1] The department’s file contains a notice of intention to cancel the applicant’s visa dated 9 May 2016, which was addressed to the applicant at his home address and sent to him by email.

5. On 2 June 2016, the applicant applied for a review of the delegate’s decision to cancel his visa.

6. By letter dated 14 October 2016, the Tribunal notified the applicant that it had considered the information before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to a hearing on 4 November 2016 at which time he could give oral (and any written) evidence and present his arguments.

7. The applicant appeared before the Tribunal on 4 November 2016 to give evidence and present arguments. His friend Sukhpal Singh appeared as a witness.

8. During the hearing, the applicant gave the following oral evidence:

   (a)He was born on 8 November 1988 (27 years old);

   (b)He does not have any immediate family in Australia. He has some cousins in Australia. His parents and a brother and sister live in India;

   (c)He arrived in Australia from India in September 2008 on a student visa;

   (d)After arriving in Australia, he enrolled in a one year certificate three course in pre-press and graphics at the Cambridge International College. After graduating with the certificate three, he commenced a one year Diploma course in multimedia also at the Cambridge International College;

   (e)Lagan operated a printing business that designed and printed posters, flyers, business cards, and the like. In late 2012, Lagan successfully nominated and employed him as a printing press and graphics tradesperson (or similar occupation that was on the ANZSCO list of occupations at the time). Lagan paid him an annual salary of $55,000 per year (plus superannuation);

   (f)During the time that the applicant worked for Lagan, it had two employees including the applicant. A gentleman by the name of Sarabjit Singh (Sarabjit) was the principal of the business (the boss). He managed the day-to-day affairs of the business;

   (g)Lagan was regularly late in paying the applicant’s wages;

   (h)In early 2015, Sarabjit went to India for about two months. He married during that trip. Sarabjit managed the Lagan business, such as paying the bills, from India during that time;

   (i)In August or September 2015, Sarabjit went back to India to visit his wife. A few weeks before Sarabjit left, the applicant told Sarabjit (in about July 2015) that Lagan was late paying his wages. Sarabjit told the applicant that he would ‘fix it’. Before Sarabjit left for India a few weeks after the conversation about wages, Lagan paid the applicant some of the outstanding wages but not all of it. In the meantime, the applicant continued to work and accrue wages that Lagan did not pay. The applicant did not know that Sarabjit had gone to India for a second time in 2015 until after he had gone. Sarabjit did not return from India and is still there;

   (j)The applicant continued to work for Lagan for one or two months after Sarabjit left for India for the second time. Lagan did not pay the applicant his wages for that work. Lagan also stopped paying rent on its business premises and utility bills. By the end of September 2015, Lagan’s second employee had left for India as well. The applicant was the only person working in the business;

   (k)In about October 2015, the landlord of Lagan’s business premises changed the locks on the premises and locked-out Lagan (and the applicant). He called Sarabjit in India and told him about the lock-out. Sarabjit said that the landlord was his friend and he would talk to the landlord and ‘fix it’ before coming back to the applicant. Sarabjit also told the applicant in that conversation and subsequent conversations that when he returned to Australia, he would lease new business premises, revive the Lagan business, resume employing the applicant, and pay the applicant his outstanding wages. Sarabjit did not come back to the applicant about any of those matters. The applicant was not able to enter Lagan’s business premises again. Lagan has not paid the applicant his outstanding wages;

   (l)Notwithstanding the undertakings Sarabjit gave the applicant about returning to Australia to resume the Lagan business (upon which he relied), the applicant began to search for new employment, and for a new employer that would nominate him, in about October 2015 when Lagan was locked out of its business premises. He did not have written evidence (such as job applications) of searching for a new employer at that time but he could name some of the potential employers he approached. Some of the employers interviewed him but none of them were prepared to nominate and employ him;

   (m)In about May 2016 after the department cancelled his visa, he spoke to Sarabjit by telephone. Sarabjit said that he would contact an immigration lawyer to try and assist the applicant. Sarabjit did not act on his offer to assist the applicant in any way;

   (n)If the delegate’s cancellation decision is set aside, it will be easier for him to find an alternative employer who would be prepared to nominate him for a 457 visa. Many of the potential employers he has approached for work were not prepared to nominate and employ him once they learnt that his visa had been cancelled. A cancelled visa has a negative ‘psychological effect’ on employers making it less likely that they will employ him. If the cancellation decision is set aside, that psychological effect will be removed and an employer will be more likely to nominate and employ him;

   (o)He has skills operating printing equipment that would be valuable to another employer;

   (p)His father owns and operates a small flour mill in India. His mother is a housewife. His brother is unemployed. His sister is a recent graduate. He will suffer hardship if his visa remains cancelled and he is required to return to India because his family in India had been relying on him for financial support from Australia. His ability to support them from India will be limited;

   (q)He has been supporting himself in Australia with the assistance of relatives and family friends. He considers that he must repay his relatives and friends for their support. He estimates the debt he owes his relatives and friends to be about $20,000. If he returns to return to India, he will not be able to repay the debt;  

   (r)He has lived in Australia for the last eight years (from 2008). It will be difficult for him to find a good job in India, and he will not be able to earn Australian income (such as the income he was earning from Lagan);

   (s)He was engaged to a bride in India and he wants to get married. His marriage plans will be interfered with if he returns to India;

   (t)He did not know for certain why the department cancelled Lagan’s approval as a standard business sponsor. He suspects it was related to a problem that Lagan was encountering updating its address details with the department. Lagan moved its business premises from Geelong to Melbourne’s western suburbs, and it might have encountered a problem at that point updating its address details but he does not know for sure. He was shocked when he discovered that the department was considering cancelling his visa because of some problem with Lagan;

   (u)He accepts that he did not respond to the department’s notice of intention to cancel his visa dated 9 May 2016. He accepts that he received the notice at about the time of its date but he cannot recall reading it, and he did not appreciate at the time that it notified him of the department’s intention to cancel his visa subject to his response.[2] Had he understood the notice’s contents at the time, he would have responded. He overlooked the notice’s contents because he received an email from the department on 2 May 2016 asking him to complete an attached form 929 updating his contact details. He subsequently completed the form updating his contact details and returned it to the department. When he received an email from the department on about 9 may 2016 attaching the notice of intention to cancel his visa, he assumed it confirmed that the department had updated his contact details. He cannot recall reading the attached notice at the time;

   (v)He accepts that the delegate had lawful grounds to cancel his visa. He is relying on the Tribunal’s discretion to set aside that decision; and

   (w)If the delegate’s cancellation decision is set aside, he will be able to help everybody affected by the decision. He can help himself and his family in India by earning Australian wages, and help employers and the community in Australia who could benefit from his skills.

   [2] The Tribunal received an email from the applicant on 8 November 2016 confirming that he received from the department the notice of intention to cancel his visa at about the time of the notice date.

9. Sukhpal Singh said the following in support of the applicant:

   (a)He has known the applicant for 10 years. They travelled to Australia together. He has been an Australian resident since October 2015;

   (b)He has been helping the applicant with living expenses from the time the applicant lost his right to work in Australia;

   (c)The applicant is now in trouble with his visa because his employer disappeared. The applicant’s current circumstances were brought about by the applicant’s former employer not the applicant; and

   (d)The applicant began to look for another employer and potential sponsor as soon as his former employer was locked out of its business premises. The applicant has had difficulty locating a new employer because his visa was cancelled. Employers are ‘scared’ of people with cancelled visas.

10. The applicant submitted to the Tribunal some documents at the hearing and afterwards in support of his application. The documents went to establishing that the applicant was a qualified graphic pre-press tradesperson who had been employed in that capacity (or similar capacities) before working for Lagan. Amongst those documents, the applicant tendered a letter from Spendless Printing dated 11 November 2016, which noted that the applicant had applied for work as a pre-press graphics operator (the time of application was not noted). The letter noted that Spendless could not offer the applicant work because he did not hold ‘visa status’. The letter stated that the applicant was highly qualified and experienced and it invited him to apply for work again if his onshore visa circumstances changed. The letter stopped short of stating that the business would be prepared to nominate the applicant for a 457 visa and then employ him if he was successful in this review.

    Consideration of claims

    Does the ground for cancellation exist?

11. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, these include the ground set out in s.116(1)(g). Under that section, a visa may be cancelled if the Minister or the Tribunal is satisfied that a prescribed ground for cancelling the visa applies to the applicant. Regulation 2.43 of the Regulations prescribes the grounds for cancellation for the purpose of s. 116(1)(g). The ground in r. 2.43(1)(l)(iv) is the relevant provision in this review. It prescribes a cancellation or barring of a sponsor’s approval as a standard business sponsor under s. 140M as a ground for cancelling a 457 visa under s. 116(1)(g).

12. On the evidence, the Tribunal is satisfied that:

    (a)on 3 July 2015, a delegate of the Minister cancelled Lagan’s approval as a standard business sponsor under s. 140M(1)(a) of the Act, and barred Lagan for three years from making future applications as a standard business sponsor under s. 140M(2);[3]

    (b)As of 28 May 2016 (the date of the delegate’s decision), the ground prescribed under r. 2.43(1)(l)(iv) existed; and

    (c)The delegate had lawful grounds under s. 116(1)(g) to cancel the applicant’s visa.

    [3] During the hearing, the applicant did not dispute that the delegate had proper grounds (as identified in the delegate’s decision record) to cancel his visa. By checking the information about Lagan on the department’s Integrated Client Services Environment (ICSE), the Tribunal was able to confirm that on 3 July 2015 a delegate of the Minister cancelled Lagan’s approval as a standard business sponsor, and barred Lagan for three year from applying for approval as a standard business sponsor.

13. The matters set out in paragraphs 12(a) and (b) above subsist now.

14. As those grounds do not require mandatory cancellation of the applicant’s visa under s. 116(3) of the Act, the Tribunal must proceed to consider whether, as a matter of discretion, the power to cancel the visa should be exercised.

    The discretion

15. The Act and the Regulations do not prescribe the matters to be considered in the exercise of the discretion to cancel a visa. The discretion is to be guided by having regard to all the relevant circumstances. The Tribunal may have regard to matters of government policy such as the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’. But the Tribunal is not bound to follow PAM3, and it can have regard to matters outside of PAM3 so long as the matter is relevant.[4] It can have regard to anything not included in PAM3 so long as the matter is relevant. However, PAM3 constitutes a useful starting point for the exercise of the discretion.

    The purpose of the applicant’s travel to and stay in Australia

    [4] See Brennan J in Re Drake (No. 2) (1978-1980) 2 ALD 634. 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 should not be elevated into legally necessary or relevant considerations. The policy guidelines in PAM3 cannot go beyond the wording of the legislation, even when they are favourable to the applicant. See for example Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429.

16. As explained to the applicant during the hearing, the purpose of a 457 visa is not served by allowing the applicant to remain in Australia to look for employment opportunities or improve his financial position. Its purpose is to enable a business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. The 457 visa is one of limited duration related to working for a particular sponsor in a skilled occupation. If the applicant’s visa was not cancelled, it would have expired on 26 November 2016 (about six months after it was cancelled), and failing some action by the applicant extending his authority to remain in Australia, he would have been required to have left Australia after that date.

17. Although the applicant initially came to Australia to study, the purpose of his continued stay in Australia from 26 November 2012, when he was granted his 457 visa, was to work for the life of the visa as graphic pre-press tradesperson for Lagan, being his approved standard business sponsor. 

18. The applicant ceased employment with Lagan in about October 2015 when it was locked out of its business premises. Although Lagan did not formally terminate the applicant at that time,[5] after the lock-out he was unable to enter Lagan’s business premises, he did not do any work for the business, and he was not paid. Sarabjit has not since returned to Australia, and there is no evidence of the Lagan business being resumed.

    [5] On the applicant’s evidence, Sarabjit assured the applicant that he would return to Australia and resume the Lagan business at which time the applicant could resume his work.

19. The Tribunal is prepared to accept that the applicant acted promptly and began searching for a new employer from about October 2015. However, about 14 months have now passed since the applicant stopped working for Lagan, and he has not found another employer prepared to nominate him for a 457 visa and employ him in his current circumstances.

20. During the hearing, the applicant asked the Tribunal to set aside the delegate’s decision so that he can locate fresh employment in Australia without the impediment of a cancelled visa. He stated that his visa being cancelled impeded his ability to locate a new employer prepared to nominate him. He referred to the psychological effect on employers of a job applicant with a cancelled visa being such that they were less prepared to nominate and employ somebody with a cancelled visa or with visa problems. The applicant tendered one letter from Spendless Printing dated 11 November 2016, which stated that it could not employ him because he did not have visa status, and it invited the applicant to apply again for work once his onshore visa circumstances had changed. The applicant stated that if the cancellation decision was set aside, and he was able to search for employment free of the impediment of a cancelled visa, he would be able to locate a new employer who would nominate him formally and employ him. That way, the purpose of his stay in Australia under a 457 visa will remain intact.

1. The Tribunal accepts that a visa cancellation could potentially impede the ability of the holder of the cancelled visa to secure new employment or secure a commitment from a potential employer to nominate the visa holder. The Tribunal also accepts that the delegate’s decision on 28 May 2016 to cancel the applicant’s visa impeded the applicant, to some degree, after that date in securing a commitment from a new employer to nominate and employ him. Apart from noting that one potential employer has stated in writing that it was reluctant to employ the applicant because of his cancelled visa, it is difficult otherwise for the Tribunal to assess the degree to which the cancellation impeded the applicant in his employment search after 28 May given the paucity of evidence before it on the issue. The Tribunal is prepared though to take account of some negative impact on the applicant’s employment prospects occasioned by his cancelled visa.

2. However, balanced against that matter in the applicant’s favour are two matters that go against him. First, on his evidence, the applicant had from October 2015 to late May 2016 to locate a new employer and make a fresh nomination application unimpeded by a cancelled visa. The applicant was unable to secure an employment offer or a commitment from a new employer to nominate him, let alone make a fresh nomination application before his visa was cancelled.

3. Second, the Tribunal does not accept that the visa cancellation made it impossible for a fresh nomination application to be made in respect of the applicant, or for the applicant at least to secure an undertaking from a new employer to nominate him for a 457 visa at some time in the future. In reviews of decisions to cancel 457 visas, applicants frequently come before the Tribunal armed with a fresh nomination application, or an offer or commitment from an employer to nominate and employ the applicant in future. Such evidence ordinarily stands to the applicant’s benefit. That does not exist here. The Spendless letter of 11 November 2016 stopped short of any future commitment. 

4. On the evidence, the Tribunal is satisfied that the applicant has been afforded a reasonable opportunity to secure new employment in Australia and make any fresh nomination application. That has not occurred.

5. The Tribunal places limited weight on the applicant’s visa only having six months left to run on the cancellation date. That goes to the purpose of the applicant’s stay in Australia being shortly (as of the cancellation date) to expire in any event. The Tribunal has balanced against that, and also taken into account, the applicant’s evidence about the visa cancellation impeding his employment search (as set out in paragraphs 20 and 21 above), and the effect of the cancellation on the applicant’s ability to apply for other visas onshore by reason of the operation of s. 48 of the Act (as set out in paragraph 45 below).

6. Having regard to the matters set out under this heading above, the Tribunal finds that the purpose of the applicant’s continued stay in Australia on a 457 visa no longer exists. He no longer works for Lagan and he has been unemployed for about 14 months with little sign of being able to locate an alternative employer prepared to sponsor him unconditionally. Although the Tribunal accepts that the cancellation of the applicant’s visa had some negative impact on his employment search from 28 May 2016, to which the Tribunal has had regard, it considers the lack of a fresh nomination application or employment offer to be a substantial matter against the applicant, which undermines the purpose of his continued stay in Australia. The Tribunal places substantial weight on the purpose of the applicant’s continued stay in Australia no longer existing.

   The circumstances in which the ground for cancellation arose

7. The Tribunal accepts that the circumstances giving rise to the cancellation of the applicant’s visa were beyond his control. There is no evidence before the Tribunal to suggest that the cancellation of Lagan’s approval as a standard business sponsor had anything to do with the applicant.

8. Further, the Tribunal finds that the applicant did not voluntarily cease work with Lagan. There was little the applicant could do in circumstances where Lagan’s principle left for India never to return, and neglected Lagan’s business such that it was effectively shut down. The Tribunal accepts that the applicant was let down by Lagan and Sarabjit, and that their conduct has had a negative effect on the applicant’s visa standing in Australia.

9. The Tribunal places substantial weight on those matters in the applicant’s favour.

   Extent of compliance with visa conditions

10. The applicant stated that he had not breached his visa conditions.

11. As Lagan was the applicant’s standard business sponsor, and the applicant’s visa was granted because he met the requirements of cl. 457.223(4), condition 8107 attached to the applicant’s visa.[6] Condition 8107(3)(b) would have provided that if the applicant ceases employment, the period during which he ceases employment must not exceed 90 consecutive days.

    [6] The department’s records on ICSE confirm that the applicant’s visa was subject to condition 8107.

12. On the applicant’s evidence, he breached condition 8107(3)(b) of his visa. He ceased employment with Lagan in October 2015 and subsequently remained unemployed for more than 90 consecutive days.

13. However, as set out in paragraphs 27-29 above, the Tribunal finds that the circumstances in which the applicant ceased employment were beyond his control. In the same way, the circumstances that led the applicant to breach special condition 8107 of his visa were also beyond his control. When assessing the impact of the applicant’s breach of special condition 8107 on this review, the Tribunal has placed substantial weight on the circumstances causing the breach being beyond his control such that the effect of the 8107 breach on this review is neutral.

14. Otherwise, there is no evidence before the Tribunal of the applicant having breached any other visa conditions. That stands to the applicant’s favour.

    Hardship caused by the cancellation to the applicant and his family

15. The applicant pointed largely to financial hardship if he returned to India. He said that he will suffer hardship because he will not be able to earn Australian income in India, and he will not be able to assist his parents and siblings as he had been from Australia. He also said that he would not be able to repay from India the $20,000 debt to his relatives and friends.

16. The Tribunal accepts that the applicant will suffer some hardship if he returns to India but it places limited weight on this matter.

17. The applicant is a young man who is well qualified, intelligent, and articulate. His work experience in Australia will stand him in good stead in India. Those matters point to the likelihood that the applicant will be able to re-establish himself in India relatively easily. There is no evidence before the Tribunal that would support a finding that the applicant will encounter insurmountable difficulty re-establishing himself in India.

18. The Tribunal accepts that the applicant will most likely earn less in India than he did in Australia (about $55,000 per year), and that he will not be able to assist his parents and siblings financially as much as he did from Australia. However, the Tribunal does not accept that those considerations constitute sufficient hardship justifying setting aside the delegate’s decision.

19. As explained to the applicant at the hearing (and as set out above), the purpose of a 457 visa is not served by allowing an applicant to stay in Australia because that advantages him financially and advantages siblings and parents who live offshore. Its purpose is to enable Australian employers to fill temporary skills shortages. Also, the 457 visa is one of limited duration related to working for a particular sponsor in a skilled occupation. It does not create an expectation of a permanent or extended life in Australia or an expectation of ongoing financial advantage by reason of being in Australia.

20. The applicant did not submit any written evidence or evidence from his creditor relatives and friends supporting his claim that he owed them about $20,000. Even if the Tribunal accepts the applicant’s debt claim, there is little evidence before it to support a finding that he will not be able to repay some or all of the debt from India. It might be that it will take the applicant longer (even considerably longer) to pay off the debt from India. That is not enough to make out sufficient hardship justifying setting aside the delegate’s decision. Further, the applicant chose to remain in Australia and incur the debt rather than return to India and avoid it. That diminishes from the weight that can be placed on the debt issue.

21. Accordingly, the Tribunal places limited weight on the hardship matters the applicant raised.

    Past and present behaviour towards the department

22. The Tribunal is prepared to give the applicant the benefit of the doubt and accept that he did not read the notice of intention to cancel his visa at about the time he received it on about 9 May 2016. The Tribunal accepts that the applicant would have responded to the notice had he read it, and it will not hold his failure to respond as a matter that counts against him in this review.

23. Otherwise, there is no evidence before the Tribunal to suggest that the applicant has not co-operated with the department. This counts in the applicant’s favour  

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

24. The applicant is currently on a bridging visa because of this review process. In the absence of the applicant making another successful visa application, or the Minister granting a visa, ultimately he will not have authority to remain in Australia. If so, the applicant will have the opportunity to depart Australia. Whilst his continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

25. 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. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore. The Tribunal has taken that potential limitation on the applicant’s future applications from 28 May 2016 into account.

26. Balanced against that, the applicant said that he wanted to remain in Australia to locate another employer who would nominate him for a 457 visa. Although the applicant might prefer to remain in Australia to locate another employer, as the delegate noted in the decision record, the cancellation does not attract Public Interest Criteria 4013, which could have prevented him from applying for and being granted a new visa offshore. The applicant will not be prevented from applying for another 457 visa offshore if he can find an employer prepared to sponsor him. The Tribunal places substantial weight on this matter.

    Whether there are others whose visas would or may be cancelled under s. 140

27. This consideration does not apply. The applicant is single and does not have any children. There are no secondary visa holders whose authority to remain in Australia is affected by the cancellation decision.

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

28. In considering whether to exercise its discretion to cancel the applicant’s visa, the 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, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).

29. Before the hearing, there was nothing in the documents before the Tribunal that would have supported an argument that Australia would offend its international obligations if the applicant was required to return to India. The applicant did not say anything at the hearing, and did not submit any written evidence, that would change that position.

    Conclusion

30. This review is finely balanced. The Tribunal places substantial weight in the applicant’s favour on the circumstances in which the cancellation arose being out of his control. Lagan’s cancellation as an approved standard business sponsor, and it ceasing to conduct a business that could continue to employ the applicant, were not the applicant’s fault. The Tribunal also places limited weight on the applicant’s evidence that the cancelation decision impeded the applicant in locating a new employer from 28 May 2016.

31. But balanced against those matters was the applicant’s inability to locate a new employer unimpeded by a cancelled visa between October 2015 and 28 May 2015, and the purpose of the applicant’s continued stay in Australia no longer existing. Further, the applicant is not prevented from applying for another 457 visa if he can find an employer who will sponsor him either in his time left in Australia or from offshore. 

32. Having regard to all the evidence before it, and balancing the matters both in favour of setting aside the delegate’s decision and affirming it, 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. In the end, the Tribunal considers that the matters in favour of leaving the visa cancelled outweigh those in favour of setting aside the cancellation.

    DECISION

33. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 visa.

    L. Hawas
    Member