Sukhpreet Kaur (Migration)

Sukhpreet Kaur (Migration) [2018] AATA 2679 (18 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Sukhpreet Kaur
Mr Gurpreet Singh
Miss Rasanjot Kaur
CASE NUMBER:  1704090
HOME AFFAIRS REFERENCE(S):           BCC2017/321411
MEMBER:Alison Mercer
DATE:18 June 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 18 June 2018 at 5:28pm

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Whether the ground for cancellation exists - Where the standard business sponsor had been deregistered – Where unemployment lasted longer than 90 days - Ground for cancellation exists – Whether the visa should be cancelled – Subclass 457 visa does not guarantee a pathway to permanent residency – Where the applicant was not notified of the sponsor’s deregistration – Unemployment arose out of circumstances beyond the applicant’s control – Where applicant sought and obtained employment shortly after becoming aware – Decision remitted with direction
LEGISLATION
Migration Act 1958 (Cth), ss 48, 116(1)(b), 140, 348
Migration Legislation Amendment (Temporary Skills Shortage Visa and Complementary Reforms) Regulations 2018 (Cth), cl 6704(6)
Migration Regulations 1994 (Cth), rr .2.72, 2.84, Schedule 4, PIC 4013, Schedule 8, Condition 8107(3)(b)
CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 7 March 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had breached one of the conditions imposed on her subclass 457 visa, being condition 8107. Condition 8107(3)(b) required that the applicant not cease employment for her most recently approved standard business sponsor for more than 90 consecutive days. The delegate found that the applicant’s most recently approved sponsoring employer was J’vons Pty Ltd ATF J’vons Business Trust, but that this company had been deregistered on 30 October 2016. Moreover, the applicant had confirmed with the Department on 18 January 2017 that she ceased employment with the company in October 2016. Accordingly, the delegate found that she had ceased employment for more than 90 days and this was a breach of condition 8107(3)(b) and also of s.116(1)(b) such that her visa was subject to cancellation. The delegate found that the factors in favour of cancellation outweighed those against cancellation and cancelled the visa. The delegate found that the visas of the second and third named applicants (the applicant’s husband and child) were subject to consequential cancellation pursuant to s.140 of the Act.
The Tribunal received a review application from the applicants on 7 March 2017. It was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Ms Carina Ford, as their representative and authorised recipient for correspondence. The following documents were also provided:
·memorandum of resolution of J’vons Pty Ltd ATF J’vons Business Trust, dated 23 September 2016, to transfer 25 units from Rosetta Parrillo ATF Parrillo Family Trust to Think Enterprises Pty Ltd;
·memorandum of resolution of J’vons Pty Ltd ATF J’vons Business Trust, dated 23 September 2016, to transfer 25 units from Rosetta Parrillo ATF Parrillo Family Trust to H3 Hair Pty Ltd; and
·unit certificates issued by J’vons Pty Ltd ATF J’vons Business Trust reflecting the above transfers.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other applicants’ visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the first named 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 visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.
On 24 May 2018, the applicant’s agent wrote to the Tribunal to request priority processing for the review application for the following reasons:
·the applicant’s subclass 457 visa would, if not cancelled, expire on 30 June 2018, and if the matter was not determined by the Tribunal prior to that date, the review process would essentially be futile for the applicant as she would be prevented from lodging any subsequent substantive visa application and she would remain the holder of a bridging visa E;
·the applicant’s subclass 457 visa was cancelled on 7 March 2017 under s.116 for breaching condition 8107 due to ceasing her employment for more than 90 days. A new nomination was lodged on 11 October 2017 by Goodfield Pty Ltd nominating the applicant for the occupation of Salon Manager (ANZSCO 142114). The Department began processing this nomination in January 2018 and additional information was provided on 16 January 2018 and 22 January 2018. However, on 3 May 2018, the Department – without warning – administratively finalised the pending nomination on the basis that the nomination was an ‘orphan nomination.’ On 15 May 2018, the applicants’ agent requested that the nomination be reinstated and it had now been reinstated; and
·as the Tribunal was aware, there was some dispute as to whether this nomination could in fact be approved under the previous r.2.72. However, it was submitted that should the cancellation be set aside, the nomination could then in fact be approved under the old r.2.72 as it would then identify the holder of a subclass 457 visa.
Attached to the request was a range of documents, including the following:
·email correspondence between the applicants’ agent and the Department providing additional information about the genuineness of the nominated position of Salon Manager made by Goodfield Pty Ltd (trading as Quadro Hair);
·email correspondence between the applicants’ agent and the Department requesting that Goodfield Pty Ltd’s nomination, which had been ‘otherwise finalised’, be reinstated;
·Departmental acknowledgment of nomination application made by Goodfield Pty Ltd dated 11 October 2017;
·letter from Goodfield Pty Ltd dated 15 January 2018 confirming that the position of Salon Manager offered to the applicant was genuine, and had formerly been filled by another employee who had left in July 2017;
·payslips for the former employee in the position of Salon Manager;
·profit and loss statements for Goodfield Pty Ltd for the 2015/16 and 2016/17 financial years;
·print outs of various pages from Goodfield Pty Ltd’s internet site and photos of the Quadro Hair Salon; and
·employment agreement between Goodfield Pty Ltd and the applicant, dated 29 October 2013 [sic].
On 25 May 2018, the Tribunal agreed to grant priority processing and sought consent from the applicants to shorten the hearing notification period so that a hearing could be conducted on 5 June 2018. The applicants consented to this on 29 May 2018.
The Tribunal received a submission with supporting documents from the applicants’ agent on 1 June 2018.
The applicants appeared before the Tribunal on 5 June 2018. The applicant and her husband gave evidence and presented arguments. The Tribunal also received oral evidence by telephone from the applicant’s proposed employer, Mr Dominic Chiavalle, and oral legal submissions from the applicant’s agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi (Indian) and English languages.
Following the hearing, the applicants’ agent provided a letter dated 13 June 2018 from the Department approving Greenfield Pty Ltd’s nomination of the applicant for the position of Hair or Beauty Salon Manager.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
The Tribunal considers it appropriate to set out the history of the matter in some detail, before making its findings on the above matters.
Departmental history
The Department’s records indicate that:
·the applicant originally came to Australia as the holder of a subclass 572 student visa on 17 February 2010;
·she applied for a subclass 457 visa on 16 April 2014, nominated by J’vons Pty Ltd ATF J’vons Business Trust for the occupation of Hair or Beauty Salon Manager and was granted a subclass 457 visa on this basis on 30 June 2014, which was valid until 30 June 2018; and
·the applicant’s husband and daughter (the second and third named applicants) were granted subclass 457 visas on the basis that they were members of the applicant’s family unit.
On 16 February 2017, the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC). The particulars of the grounds for cancellation were stated to be that it appeared that the applicant had not complied with condition 8107(3) of her subclass 457 visa; specifically, that the Department had received information that the applicant’s most recently approved nominating sponsor, J’vons Pty Ltd ATF J’vons Business Trust, had been deregistered by ASIC, and that the applicant herself had advised a Department officer on 18 January 2017 that she had ceased employment with her employer as of October 2016.
On 22 February 2017, the applicant’s then-agent provided a response, in which he indicated that:
·J’vons Pty Ltd ATF J’vons Business Trust was deregistered due to the ignorance of its bookkeeper. However, it was currently in the process of re-registration;
·the company had undergone a business restructure. The Department’s sponsor monitoring section requested documentary evidence of this, but the company was waiting on receiving documents from its lawyer, who was unavailable over the Christmas break. The company was unable to provide the requested evidence by the due date and was barred as a sponsor as a result;
·J’von Pty Ltd had sold 20% of its shares to Think Enterprises Pty Ltd and another 20% to H3 Hair Pty Ltd. The applicant had continuously worked for J’von Pty Ltd until October 2016. While the business was being restructured, she was supposed to work for Think Enterprises Pty Ltd after the Christmas break. She was informed of this by her employer at J’vons Pty Ltd, Mr Mark Minutolo, but she was not advised or aware that J’vons Pty Ltd had been deregistered until 23 January 2017, when she was advised that its sponsorship approval had been cancelled. She then received the NOICC from the Department on 16 February 2017;
·the applicant had worked for her sponsoring employer for as long as possible, and it was the sponsoring employer’s responsibility to advise the Department within 28 days of any change to its business structure, according to r.2.84. Its failure to do so was not within the control of the applicant, who believed that she was working within the terms of her visa;
·the applicant had complied with all other visa conditions and had worked for more than 2 years continuously as a fulltime Hair Salon Manager. She had paid all expenses and fees for her daughter to attend primary school in Australia and cancellation of her visa would cause hardship for the whole family economically and emotionally, since the applicant had been living in Australia since 2010 and she and her husband had sold major assets (such as a motor vehicle) to fund her studies in Australia; and
·the Department was asked to defer its decision in order for the applicant to lodge a new residency application with Think Enterprises Pty Ltd.
The supporting documents included a lease agreement for Think Enterprises Pty Ltd (trading as Mystique Creations), an application to ASIC for reinstatement of J’vons Pty Ltd’s registration and a statutory declaration by Mr Mark Minutolo in support of that request, dated 25 January 2017.
On 7 March 2017, a delegate of the Minister made a decision to cancel the applicant’s subclass 457 visa. In reaching that conclusion, the delegate found that:
·a ground for cancellation under s.116(1)(b) was made out, as it was conceded that the applicant ceased employment with J’vons Pty Ltd, her most recently approved nominating standard business sponsor employer, as of October 2016. At the time of the delegate’s consideration in March 2017, the applicant had therefore ceased that employment for more than 90 consecutive days, in breach of condition 8107(3)(b), to which her subclass 457 visa was subject.
The delegate then considered the factors set out in Departmental policy as to whether the visa should be cancelled in the circumstances of the case;
·in relation to the purpose of the applicant’s travel to and stay in Australia, the delegate found that she was granted the subclass 457 visa for the purpose of working for an approved sponsor in a skilled occupation for which she was specifically nominated to work. As she ceased work there in October 2016, it appeared that she was no longer in Australia in accordance with the original purpose of her visa;
·Departmental records indicated that H3 Hair Pty Ltd lodged a business sponsorship and nomination application with the Department on 15 June 2016 in respect of the applicant, but that these were withdrawn on 9 August 2016. There was no evidence that the applicant had lodged any other nomination with the Department. Although it was acknowledged that the applicant initially came to study and then obtained a visa to work, she had not found a new employer or approved nomination within 90 days of her employment with her original employer ceasing, so her original purpose in coming to and staying in Australia did not provide a reason not to cancel her visa;
·the delegate considered the extent of the applicant’s non-compliance with condition 8107 to be significant, as she had ceased employment with her sponsor for more than 4 months at the time of the delegate’s consideration;
·the delegate accepted that the cancellation of the visa would probably lead to some financial hardship on the part of the applicant and her family but noted that no relevant evidence had been provided to substantiate this, and therefore gave this factor little weight;
·the delegate noted that the cancellation of the applicant’s visa would result in the consequential cancellation of her husband and daughter’s visas, and therefore considered Australia’s obligations under the UN Convention on the Rights of the Child (CROC). While the delegate accepted that the family, including the applicant’s daughter, would suffer some hardship if their visas were cancelled, the delegate found that the family would not be separated as they would depart Australia together and there was no evidence that any of them would experience significant hardship if required to depart;
·the delegate acknowledged that the applicants would become unlawful non-citizens if their visas were cancelled but noted that they would be entitled to apply for bridging visa Es to enable them to depart lawfully. The delegate also acknowledged that the applicant would be subject to s.48 of the Act, which limited her onshore visa options, but found that she would not be subject to Public Interest Criterion 4013, so would not be prevented from applying for a new visa from overseas;
·in relation to the circumstances in which the ground for cancellation arose, the delegate noted the history of the matter and acknowledged that the issues with the deregistration of the applicant’s original employer were outside her control, but found that she should have been aware that she had 90 days to find a new employer to nominate her when she ceased employment with the original employer in October 2016. This was not beyond her control, yet she had not done so. Nor had she departed Australia;
·the delegate considered the claim that the applicant was supposed to have worked for Think Enterprises Pty Ltd after the restructure but noted that ASIC records did not establish that this company was an associated entity of the original employer, nor that it had been approved as a standard business sponsor or had nominated the applicant. She therefore remained in breach of condition 8107;
·the delegate gave weight to the fact that the applicant had been cooperative with the Department in response to the NOICC; and
·after considering all of the above factors, the delegate determined that the factors in favour of cancellation of the applicant’s visa outweighed those against cancellation.
Tribunal history
In addition to the submissions and documents provided with the review application in March 2017 and the priority request of May 2018, the applicants’ agent provided the following legal submissions on 1 June 2018:
·it was conceded that a ground for cancellation was made out as the applicant no longer worked for her original sponsoring employer; however, the applicant maintained that her ceasing work there was due to factors beyond her control;
·despite the ground for cancellation existing under s.116(1)(b), it was submitted that after consideration of the Departmental factors, the discretion not to cancel the applicant’s visa should be exercised by the Tribunal;
·in relation to the purpose of the applicant’s travel to and stay in Australia, it was noted that the subclass 457 visa program was designed to enable employers to address labour shortages by bringing in genuinely skilled worker where they cannot find an appropriately skilled Australia;
·the applicant was identified in a pending nomination made by Goodfield Pty Ltd (trading as Quadro Hair Team) for the occupation of Hair or Beauty Salon Manager (ANZSCO 142114), which was the same occupation for which she was originally nominated for and granted a subclass 457 visa. Therefore, her primary purpose of remaining in Australia was to continue working in Australia to fill a labour shortage for a business that could not find an appropriately skilled Australian;
·further, the applicant had been undertaking some work in her nominated occupation since the cancellation of her subclass 457 visa, as she held a bridging visa E with work rights. As the purpose of the applicant’s stay in Australia had remained consistent, it was submitted that this consideration weighed in favour of not cancelling her visa;
·apart from the conceded breach of condition 8107, the applicant had complied with all other conditions to which her previous and current visas were subject;
·the applicant had been in Australia since 2010 and had built her life and career here. Her ceasing employment with her original employer was due to factors beyond her control and she had now found a new sponsoring employer and was looking forward to returning to work to support her family. The cancellation of her visa in March 2017 had caused her and her family stress and hardship;
·the applicant’s daughter had commenced primary school in Australia and was now in Grade 1 at her local primary school. Cancellation of her visa would severely disrupt her education and social development;
·it was reiterated that the grounds for cancellation arose due to factors beyond the applicant’s control. She was not aware of the deregistration of her original sponsoring employer’s company and was instructed that it was due to an accounting error. She had now found a new employer and this should weigh heavily in favour of not cancelling her visa;
·the applicant had been truthful and cooperative in her dealings with the Department, which should also weigh in her favour;
·the applicant’s husband and daughter were subject to consequential cancellation of their visas in the event of the applicant’s visa remaining cancelled and in particular, the effect of this on the applicant’s daughter was adverse given she had recently commenced primary school in Australia. This was also relevant to Australia’s obligations under the CROC;
·if the cancellations were upheld, the family would be subject to s.48, which would severely limit their onshore visa application options (including preventing a new subclass 457 visa application onshore);
·the applicant’s circumstances were also affected by recent changes to the subclass 457 visa program. Clause 6704(6) of the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 provided that the nominations made prior to 18 March 2018 might still be assessed under r.2.72 as in force prior to 18 March 2018 if the nomination was made in relation to:
oa holder of a subclass 457 visa; or
oan applicant, or proposed applicant for a subclass 457 visa, if the applicant or proposed applicant applied for the subclass 457 visa prior to the commencement day;
·the applicant did not fall into either of the above categories as she did not hold a subclass 457 visa. On this basis, and for the reasons stated already, the Tribunal was requested to set aside the cancellation of the applicant’s subclass 457 visa so that her nomination could be processed under r.2.72 as in force prior to 18 March 2018; and
·further, it was reiterated that the applicant’s visa, if not cancelled, would expire on 30 June 2018, and therefore, the Tribunal was requested, if it was of a mind to set aside the cancellation, to do so prior to that date in order that the applicant and her family were not affected by s.48 of the Act.

The submissions were accompanied by supporting documents, including:
·bridging visa E grant notice to the applicant, dated 26 May 2017, indicating that she is not prohibited from working; and
·nomination application made on 11 October 2017 by Goodfield Pty Ltd in relation to the applicant for the position of Hair or Beauty Salon Manager.
At the hearing on 5 June 2018, the applicant and her husband gave evidence and presented arguments. The Tribunal also received oral evidence by telephone from the applicant’s proposed employer, Mr Dominic Chiavalle, and oral legal submissions from the applicant’s agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi (Indian) and English languages.
It was conceded by the applicant and her agent that the applicant had breached condition 8107(3)(b) due to ceasing work for more than 90 consecutive days for her original sponsoring and nominating employer, J’vons Pty Ltd. The applicant told the Tribunal that she in fact worked for J’vons Pty Ltd as a Hair Salon Manager up until 4 November 2016. She and her family then went to India for 6 weeks, from 8 November 2016 to 20 December 2016. This was approved by her employer. On her return to Australia, the applicant said that she was told by Mark, the owner of J’vons Pty Ltd, that he was restructuring the business, and bringing in 2 business partners, Think Enterprises Pty Ltd and H3 Hair Pty Ltd, and that he would operate 2 salons, one with each of the new business partners. He said that one salon (the one in which his new partner was Think Enterprises Pty Ltd) would continue to employ her once the salons reopened after the Christmas break in mid January 2017, but the ABN number of the business would be the same. The applicant said that she was unaware at this time that J’vons Pty Ltd had been deregistered by ASIC.
The applicant said that she was told this by a Department officer who rang her on 16 January 2017. She was confused as she did not know this had happened. Mark, the owner, said that the company was in the process of re-registering. The Department then sent her to NOICC in February 2017. She was advised to find a new employer and get a new nomination approved as soon as possible but while she was trying to do so, the Department made the decision to cancel her subclass 457 visa, despite her and her then-agent providing a response to the NOICC indicating that the situation with the sponsoring employer was outside the applicant’s knowledge and control and that she was in the process of finding another job in her field. The applicant said that she was further confused as her colleague, who was to have worked in the other salon operated by Mark and H3 Hair Pty Ltd, also received a NOICC but the Department elected not to cancel her subclass 457 visa. Yet the applicant’s visa was cancelled. The Tribunal indicated that it could not shed light on the Department’s actions in this regard, as it did not have any information about the applicant’s colleague’s circumstances.
The applicant said that before she went to India, she had been preparing to lodge a permanent residence application based on her nomination by J’vons Pty Ltd, but this all fell through on her return to Australia. In response to the Tribunal’s query, the applicant said that she understood her subclass 457 visa was subject to a 90 day limitation in relation to finding new employment, but that she did not understand that she was in that position as, firstly, part of the time she was not working from November 2016 to January 2017, she was on approved leave and the Salon was shut, and secondly, she had been told that although she would work in a new salon on her return to Australia, it would still be the same ABN as J’vons Pty Ltd.
The applicant told the Tribunal that after her visa was cancelled, she looked for work as a Hair Salon Manager on Gumtree and responded to an advertisement by Quadro Hair Team (Goodfields Pty Ltd). She was offered a role with that employer, Mr Dominic Chiavalle, as he ran 2 salons and one of his Salon Managers had left. However, she was of the understanding that she could not take up that employment until Goodfields Pty Ltd was approved as a sponsor and had its nomination of her approved. The applicant’s agent confirmed that Goodfields Pty Ltd lodged its nomination of the application with the Department in October 2017, and that they had expected it to be finalised before the closure of the subclass 457 visa program on 18 March 2018, especially as they were requested to, and did, provide additional information about the genuineness of the nominated position to the Department in January 2018. The agent said that they were unable to understand why the Department did not make a decision on the nomination by 18 March 2018. However, the Department then ‘administratively finalised’ the nomination, apparently on the grounds that the nomination was an ‘orphan nomination’ because of the earlier cancellation of the applicant’s subclass 457 visa. The applicants and their agent objected to this, and as a result, the nomination application was reinstated by the Department and remained pending with the Department as at the time of the Tribunal hearing.
The applicant said that in the meantime, she did work as a Hair Salon Manager for H3 Hair Pty Ltd for about 10 months, after being granted permission to work on her bridging visa E. In response to the Tribunal’s query, the applicant said that her husband also worked. He initially did warehouse work when he came to Australia as her student dependant, but had been driving taxis full-time for the last 2 years. The applicant confirmed that her daughter, who is about to turn 7, was born in India and spent a lot of time there until about 2016, being cared for by the applicant’s husband’s parents. She came to Australia in 2016 and was now in grade 1 at her local primary school in Melbourne and was well-settled. The applicant confirmed that her parents and sisters remain in India (although her parents are currently visiting Australia). Her father is retired, her mother is a housewife, and her sisters are married with their own families. In relation to her husband’s family, his father and a sister remained in India. Her husband’s mother died 2 years ago.
The applicant told the Tribunal that it would be very hard for her and her family to relocate to India. They would not be able to earn the same amount of money, which they currently use to support themselves and also to provide financial support to the applicant’s husband’s father for his heart medication and his cousin’s schooling, as the applicant’s husband’s family had adopted him and he lived with them in India. The applicant said that she had never worked in India as she came to study in Australia after finishing school in India, and thus had no real employment connections there. Her husband did not have a profession before coming to Australia with her, but helped his father on their small farm. The applicant expressed concern about the costs of educating their daughter in India, the educational and emotional disruption to her education if she had to move from the Australian to the Indian education system, and the difficulties for the family if they had to try to move to a city from their home village, in order to have better work opportunities. In response to the Tribunal’s query, the applicant said that her parents could probably provide accommodation for a period if she returned with her family to India but they could not do so indefinitely. Nor could they provide financial support, as her father’s pension had to cover the costs of himself and the applicant’s mother already.
The Tribunal then took telephone evidence from the applicant’s proposed employer, Mr Dominic Chiavalle, by telephone. Mr Chiavalle confirmed that through Greenfields Pty Ltd (trading as Quadro Hair Team), he operates 2 Hair Salons. He confirmed that he offered the applicant the position of Manager of the Glen Waverley/Wheeler’s Hill salon in or about mid-2017. While waiting for the business’ nomination to be approved, he did get someone to fill in in this position but that person left about 1 month ago. He confirmed that he still wanted to employ the applicant and stated that there was an industry-wide problem finding suitable local employees for this occupation. He confirmed that the salon which the applicant would manage currently employs 9 hairdressers.
The Tribunal then took evidence from the applicant’s husband. He confirmed that he and the applicant financially support his family in India (his father and cousin in particular). He said his sister is married and mostly lives with her husband’s family. He had 1 brother, who is an Australian permanent resident. That brother shares the rental accommodation with the applicant, her husband and their daughter. He works in a warehouse in Melbourne. The applicant’s husband voiced similar concerns to the applicant concerning their financial position if they were to return to India, the difficulty of finding decent employment and their concerns about their daughter’s educational and emotional wellbeing if returned to India and obliged to leave the Australian education system. He also said that the family had spent a lot of money treating his mother, who died of a brain tumour approximately 2 years ago.
The Tribunal discussed with the applicant’s agent the somewhat unusual legal circumstances affecting the applicants’ case; namely, the abolition of the subclass 457 visa scheme as of 18 March 2018, and the ambiguity in some of the transitional legislation regarding the position of ‘orphan nominations’ (that is, nominations for which there was never, or was no longer, an associated subclass 457 visa holder or proposed subclass 457 visa holder before 18 March 2018). The Tribunal queried what the point of reinstating the applicant’s subclass 457 visa was, when she could not now make a new subclass 457 visa application (as that subclass no longer existed as of 18 March 2018) even if the Department approved Greenfield Pty Ltd’s nomination of her before 30 June 2018. The applicant’s agent argued that the issue for the Tribunal was whether the grounds for cancellation outweighed those against, and the applicant’s future plans were not strictly relevant to that assessment. The Tribunal noted that one of the discretionary factors in the Department’s guidelines was the purpose of the applicant’s travel to and stay in Australia, as well as the overall intention of the subclass 457 visa program, which was to provide a means for Australian employers to fill labour shortages. It noted that this program had now been abolished and even if Greenfield Pty Ltd’s nomination was processed as no longer being an ‘orphan nomination’ (assuming the Tribunal set aside the cancellation of the applicant’s subclass 457 visa), then it could not be used to obtain a subclass 457 or a TSS visa onshore. The applicant’s agent conceded this but noted that the restoration of the applicant’s subclass 457 visa meant that she could potentially lodge another kind of visa application onshore (such as a Regional Sponsored Migration Scheme permanent residence visa, where her nominated occupation of Hair or Beauty Salon Manager was still on the relevant occupational list).
As noted above, the applicants’ agent provided post-hearing submissions indicating that Greenfield Pty Ltd’s nomination of the applicant for the position of Hair or Beauty Salon Manager was approved on 13 June 2018.
Does the ground for cancellation exist?
A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance, condition 8107 attached to the applicant’s visa. This condition requires as follows [Tribunal’s emphasis]:
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:
(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.
(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.
…
Conclusions in relation to s.116(1)(b)
As noted above, the applicant’s subclass 457 visa, granted to her on 30 June 2014 on the basis of an approved nomination as a Hair or Beauty Salon Manager by her then-employer, J’vons Pty Ltd, was subject to condition 8107 as set out above.
According to the Department’s records, the Department became aware that J’vons Pty Ltd was deregistered by ASIC as of 30 October 2016, and the applicant herself confirmed to the Department by telephone in January 2017 that she ceased work for the company in October 2016. At the Tribunal hearing, the applicant provided more detail, indicating that she took approved leave from her position with J’vons Pty Ltd in early November 2016 and was told on her return to Australia, she would be working at another salon operated by a restructured J’vons Pty Ltd in partnership with Think Enterprises Pty Ltd from mid-January 2017, but that this position would still be as a Hair Salon Manager and the business would have the same ABN as J’vons Pty Ltd.
The applicant did not dispute that in fact, she ceased work for J’vons Pty Ltd in early November 2016, but argued that she was not given any notification of its deregistration until after she returned to Australia in late 2016, when the Department rang her in mid-January 2017. She argued that she thus had no reason to be aware that her employment with J’vons Pty Ltd had ceased until she returned to Australia and was advised of this in mid-January 2017.
Having regard to all the evidence before it, including written submissions made on behalf of the applicant and her agent in response to the Department’s NOICC, in which it is not disputed that the business was deregistered in late October 2016, the Tribunal concludes that, whatever its restructure plans were, the fact is that the applicant was no longer employed by that company (her original sponsoring employer) as of late October 2016/early November 2016. Therefore, the Tribunal finds that at the time that the Department issued a NOICC to the applicant on 16 February 2017, she had ceased employment with her original sponsoring employer for more than 90 consecutive days.
It is further satisfied that the applicant had not secured alternative employment, sponsorship or nomination within the 90 day period commencing 30 October 2016 or 8 November 2016.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised. The factors raised by the applicant regarding her state of knowledge of these events will therefore be considered below.
Consideration of discretion
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’.
Purpose of the visa holder’s travel to and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia
As discussed with, and acknowledged by, the applicant at hearing, the subclass 457 ((Temporary Work) Skilled) visa is a temporary visa, the purpose of which is to work for a standard business sponsor in a position approved through the nomination process. There is no other permitted purpose for holding a 457 visa.
The applicant's original approved employment has ceased. However, there is now a new nomination of the applicant for the position of Hair or Beauty Salon Manager made by Greenfields Pty Ltd, trading as Quadro Hair which has now been approved by the Department on 13 June 2018, based on which the applicant would now potentially meet the criteria for a subclass 457 visa.
The applicant has argued that she has compelling reasons to remain in Australia as she has employment with another Australian employer, who strongly supported her employment to assist their business. At the time of the hearing, a nomination of her by that employer was undecided by the Department, but it has now been approved.
The applicant has also argued that she would struggle to re-establish herself in India, and that she and her husband and young daughter would be affected financially and emotionally if they had to leave, and that their families in India might face financial stress if required to support the applicant and her family if they had to return to India and could not find employment.

The Tribunal has considered the applicant’s and Mr Chiavelle’s evidence about her proposed employment with Greenfields Pty Ltd. The applicant has provided documentary evidence that she has been offered full time employment in her profession as a Hair Salon Manager with that employer, and Mr Chiavalle confirmed this in his telephone evidence at hearing, as well as stating that they regard the applicant’s practical skills and employment experience to date as valuable for their business. Documentary evidence was also provided indicating that a nomination of the applicant was lodged by Greenfield Pty Ltd (trading as Quadro Hair) with the Department on 11 October 2017 and was approved on 13 June 2018.
Under these circumstances, the Tribunal considers this employment to be a reasonably strong circumstance in favour of not cancelling the applicant’s visa.
The Tribunal acknowledges the applicant’s evidence that she had been in Australia since 2010 as a student and then a sponsored employee, and that the cessation of her employment with her original sponsor was not by her choice. It also acknowledges that once she became aware that her employment with J’vons Pty Ltd had ceased, she actively sought to find another sponsor and nominator and that she ultimately did so with Greenfields Pty Ltd. It accepts that, in these circumstances, the applicant wishes to remain in Australia.
As discussed with the applicant at the hearing, the subclass 457 visa is a temporary visa the purpose of which is to enable Australian employers to fill skills shortages, and it is not a guaranteed pathway to permanent residence or long term temporary residence. The Tribunal does not consider the wish of the applicant to remain here for a longer time, or perhaps permanently, to be a compelling reason not to cancel the applicant’s subclass 457 visa, given that it is a temporary visa at best, and is inextricably linked to her being successfully sponsored and nominated for employment by an Australian employer.
The Tribunal acknowledges that the applicant would prefer not to return to India and that she may (initially at least) have a lower standard of living if she re-establishes himself there with her husband and daughter. However, given the purpose of the subclass 457 visa program (and the fact that it is not a guaranteed pathway to ongoing Australian residence), the Tribunal does not consider this to be a compelling reason not to cancel the applicant’s subclass 457 visa. This is particularly so when the Tribunal takes into account the fact that the applicant has qualifications and employment experience which she could use to secure employment in India and that she has some family support there. The Tribunal acknowledges that the applicant’s father in the India appears to be in relatively modest employment but is not satisfied that she or her husband would face such significant difficulties finding employment that they would be unable to support themselves and/or would become a financial burden on their remaining family members there.
Extent of the applicant’s compliance with her visa conditions
There is no evidence before the Tribunal to suggest that the applicant has not complied with the conditions of her previous student or of any other conditions relating to her subclass 457 visa apart from condition 8107.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
As noted above, the applicant indicated that she and her husband and daughter would suffer financial, psychological and emotional hardship if they had to depart Australia and return to India.
The Tribunal acknowledges that the couple and their daughter may suffer some financial, psychological and emotional hardship if they had to depart Australia, but does not consider that the degree of financial, psychological and emotional hardship that they would face would be insurmountable as they would be travelling to and living in India together and (as noted above) the Tribunal is not satisfied that the applicant would not be able to find employment there to support them, although it might not be at the level that they experience in Australia.
The Tribunal has considered the potential effect of the applicant and her husband and daughter having to depart Australia on both the applicant’s father in India and her husband’s brother in Australia. As noted above, the Tribunal does not accept that this would have a significant adverse financial effect on the applicant’s father as it considers the applicant’s claim that she would not be able to find employment in India to be speculative, and thus does not accept that her return to India would be likely to put a significant financial burden on her father. The Tribunal accepts that the applicant’s father might prefer the applicant and her husband and daughter to remain in Australia as it holds better economic opportunities for them but there is nothing before the Tribunal to suggest that the applicant’s father would suffer significant adverse emotional effects if the applicant and her family were not able to do so.
In relation to the applicant’s husband’s Australian permanent resident brother, the Tribunal accepts that he would miss his brother and his brother’s family should they have to depart Australia, but considers that this is the natural feelings of a sibling and it is not satisfied that the psychological, emotional or financial effect on him of this occurring would be severe. In reaching this conclusion, the Tribunal gives weight to the fact that from the applicant’s husband’s evidence, it appears his brother is employed full time and is currently assisting the applicant and his family financially, and there is no evidence to suggest that he and the applicant’s husband would not be able to communicate regularly through social media, telephone and/or emails if in different countries, nor is there anything to indicate that the applicant’s husband’s brother would be unable to visit India to see the applicant and other family members if necessary.
The Tribunal accepts that the applicant’s daughter, although born in India, has been in Australia in 2016 and that the applicant and her husband would prefer her to grow up in Australia where they feel she would have more opportunities, especially since she has now commenced her primary school education here. While the Tribunal accepts that this is their preference, it again notes that the subclass 457 visa is a temporary visa which confers no guarantee of extended or indefinite residence in Australia. Nor is the Tribunal satisfied that there is any cogent evidence to suggest that the applicant’s daughter would not be able to adapt to life in India if she had to relocate there, given she would be in the care of her parents if that were the case, and given that she has only relatively recently entered the Australian education system and thus can be expected to adapt more readily to a change of country than a child who had progressed further in school in Australia.
Circumstances in which the cancellation arose
The Tribunal accepts the applicant’s evidence that she (and another subclass 457-holding employee) were effectively made redundant on 30 October 2016 by their employer, J’vons Pty Ltd, due to that company being deregistered.
The applicant has consistently maintained that she was not informed of the deregistration, but was instead advised that although there would be a change of ownership (with J’vons Pty Ltd going into partnership with Think Enterprises Pty Ltd), she would continue to work in her nominated occupation of Hair Salon Manager at a new salon from mid-2017, under the same ABN as J’vons Pty Ltd. She has further consistently maintained that she was not advised that J’vons Pty Ltd had been deregistered as a company until the Department informed her of this in mid-January 2017, following which she worked actively sought an alternative employer, sponsor and nominator. She achieved this with Greenfields Pty Ltd, which has now been approved as a standard business sponsor and has had its nomination of her for the position of Hair or Beauty Salon Manager approved on 13 June 2018.
The Tribunal has considered the applicant’s account carefully. It records that it found the applicant to be credible and sincere in her evidence at hearing, which was in turn consistent with her written responses to the Department’s NOICC. Having had the benefit of taking detailed oral evidence from the applicant, the Tribunal accepts that the applicant was not aware that the business in which she was employed had been deregistered on 30 October 2016 and that once she was advised of this in mid-January 2017, she made efforts to resolve her situation by having Greenfields Pty Ltd lodge a nomination in respect of her in October 2017. The Tribunal also accepts that in the interim, the applicant continued to work for Hair 3 Pty Ltd for about 10 months as a Hair Salon Manager.
The Tribunal further accepts that the deregistration of J’vons Pty Ltd was beyond the control of the applicant. It is satisfied that she continued to search for a new and was successful in this by October 2017, when the nomination of her by Greenfields Pty Ltd was lodged with the Department. That nomination was approved by the Department on 13 June 2018.
The Tribunal considers that the circumstances in which the breach arose did not involve deliberate or significant breaches by the applicant, and that she tried to secure a new nomination by an Australian employer in her original role of Hair or Beauty Salon Manager and that a new nomination has now been approved by the Department. These factors weigh in her favour.
Past and present conduct by the applicant towards the Department
The Tribunal accepts that the applicant has been cooperative with the Department.
If breach relates to breach of r.2.43(1)(la)…
This factor is not applicable in the present case.
Whether there are mandatory legal consequences, such as whether cancellation would result in the applicant becoming unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention
While the Tribunal accepts that cancellation of a visa would normally result in a person becoming unlawful and subject to detention, the Tribunal is satisfied that the applicant has applied for, and been granted, bridging visas which are valid until the outcome of the Tribunal review. Accordingly, it does not accept that indefinite detention is a possible consequence of cancellation, as a bridging visa would continue to be available to the applicant if she needed this to make arrangements to depart, or to lodge a judicial review application, in the event that the Tribunal review is unsuccessful.
The Tribunal accepts that, if the visa cancellation is affirmed, the applicant will be subject to s.48 of the Act, which significantly limits what future onshore applications she may be able to make (though in the Tribunal’s view, it does not affect her ability to apply for a visa offshore in future).
Whether there would be consequential cancellations pursuant to s.140 of the Act
The Tribunal is satisfied that the applicant’s husband (the second named applicant) and daughter (the third named applicant) would be subject to consequential cancellation of their subclass 457 visas pursuant to s.140 of the Act if the decision to cancel the applicant’s subclass 457 visa is affirmed.
Whether any international obligations would be breached as a result of the cancellation
The applicant did not raise any international obligations that she believed would be breached as the result of the cancellation and there is nothing before the Tribunal to indicate that cancellation would result in Australia breaching any of its international obligations. The Tribunal has considered the UN Convention on the Rights of the Child (CROC) in relation to the applicant’s daughter, but is not satisfied that any of its principles will be breached if she returns to India with her parents.
Any other relevant matter
The Tribunal considers that a stay in Australia on a temporary visa such as the 457 visa is, as the length of visa grant suggests, a temporary stay, which by its nature will come to an end. The natural consequence of a temporary stay is a departure from Australia, which is something which should be anticipated by the holder of a temporary visa.
Significantly, from the Tribunal’s point of view, the applicant’s subclass 457 visa would expire on 30 June 2018 (had it not been cancelled earlier) – a date that is imminent. Moreover, although the matter is not free from doubt, it is appears to be the case that the now approved pre-18 March 2018 nomination of the applicant by Greenfields Pty Ltd cannot be used for a post-18 March 2018 TSS visa application by the applicant. Thus, the value of setting aside the Department’s cancellation is questionable, since there is only a visa of less than a fortnight’s duration to reinstate.
Nevertheless, as discussed above, the Tribunal has some sympathy for the applicant’s circumstances, in that it accepts she has established a life here over approximately 8 years for her young family, that the circumstances that led to the cancellation of her visa were essentially not within her control, that she has persisted in finding new employment and sponsorship/nomination in her profession, that the time taken by the Department to process Greenfield Pty Ltd’s nomination of her and the Tribunal’s decision to await the outcome of this process, was not within the applicant’s control.
The Tribunal considers the submissions of the applicants’ agent that the applicant in this case would be able to make an onshore application in a different visa class (such as a permanent employer nomination scheme visa) and seek to address these criteria if the cancellation is set aside. Although the ultimate outcome of such an application cannot be predicted, the Tribunal considers that it may have an arguable prospect of success, given the applicant’s visa history as set out in this decision. It considers that this is a factor in favour of not affirming the cancellation in the particular circumstances of this case.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
The Tribunal has no jurisdiction with respect to the second and third named applicants.
Alison Mercer
Member

[2018] AATA 2679

18 June 2018

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

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Statutory Construction

Natural Justice