Tariq (Migration)

Tariq (Migration) [2021] AATA 2645 (3 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Shahbaz Tariq
CASE NUMBER:  2001120
HOME AFFAIRS REFERENCE(S):          BCC2019/2583748
MEMBER:L. Hawas
DATE:3 June 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Temporary Business Entry (class UC) (Temporary Work (Skilled)) (subclass 457) visa.

Statement made on 3 June 2021 at 11:42 am

CATCHWORDS
MIGRATION– cancellation– 457 (Temporary Work (Skilled))– sponsorship agreement had been cancelled – employment ceased – COVID-19 pandemic –applicant was not able to secure another nomination – awaiting the outcome of 190 visa application – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994, r 2.43

STATEMENT OF DECISION AND REASONS

Introduction

The applicant is a 32 year old man from Pakistan.[1] He currently lives in Australia with his wife (who is 30 years old) and two sons (who are four and two).[2] He first came to Australia in 2009 on a student visa.[3] On 29 March 2018, the Department of Home Affairs granted the applicant a Temporary Business Entry (class UC) (Temporary Work (Skilled)) (subclass 457) visa for two years to 29 March 2020.[4] By written decision dated 20 January 2020, a delegate of the Minister for the Department of Home Affairs cancelled the applicant’s visa.
[1] The applicant was born on 14 August 1988. See delegate’s decision dated 20 January 2020 at p. 1. The applicant confirmed his date of birth at the hearing on 19 February 2021.
[2] Applicant’s oral evidence at the hearing and delegate’s decision at p. 8.
[3] Applicant’s oral evidence at the hearing.
[4] Delegate’s decision at p. 1.
The delegate cancelled the applicant’s visa under s.116(1)(g) of the Migration Act 1958 (Act). That section provides that subject to subsections (2) and (3) (which are not relevant for present purposes) a minister may cancel a visa on a prescribed ground for cancelling that applies to the visa holder. The delegate relied on the ground for cancellation of a visa set out in r. 2.43(1)(l)(iv) of the Migration Regulations 1994 (Regulations) as the relevant prescribed ground. That regulation provides that for the purpose of s. 116(1)(g) of the Act, a prescribed ground is, in the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa (as well as others) who is a primary sponsored person in relation to a person who is, or was, a standard business sponsor who has been cancelled or barred under s. 140M of the Act. In other words, the prescribed ground will apply where the standard business sponsor of a 457 visa has been cancelled or barred under s. 140M. The delegate found that on 15 May 2019, a delegate of the Minister for Home Affairs cancelled the approval as a standard business sponsor of Little Mushrooms Pty Ltd (Little Mushrooms), being the applicant’s approved sponsoring employer, under s. 140M(1)(a) of the Act.[5] On that ground, the delegate found that the power to cancel the applicant’s visa under s. 116(1)(g) of the Act had been enlivened. After considering the matters relevant to the delegate’s discretion to cancel the delegate decided to cancel the applicant’s visa.
[5] Delegate’s decision p. 2.
The applicant has now applied to this Tribunal for a review of that decision. The applicant gave the Tribunal a copy of the delegate’s decision at the time he applied for this review.
Accordingly, in this review, the Tribunal must decide whether the ground for cancelling the applicant’s visa is made out, and if so, whether the visa should be cancelled.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

Procedural matters

The applicant appeared before the Tribunal on 19 February 2021 to give evidence and present arguments. The applicant was not represented at the hearing.
The hearing was held during the COVID-19 pandemic. The Tribunal exercised its discretion to hold the hearing by video conference (Microsoft Teams). The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick. The hearing of the matter would have been delayed if it was not to be conducted by video conference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments at the hearing.
The Department of Home Affairs sent the applicant a notice of intention to consider cancellation of his visa dated 16 November 2019.[6] The notice provided that there appeared to be grounds to cancel the applicant’s visa under s. 116(1)(g) of the Act and r. 2.43(1)(l)(iv) of the Regulations. The grounds described in the notice of intention to consider cancellation are the same as those set out the delegate’s decision, which are summarised in paragraph 2 above. The notice invited the applicant to comment on the grounds for cancellation identified in the notice and to give reasons why his visa should not be cancelled.
[6] The notice is on the department’s file.
The applicant’s former solicitor responded on the applicant’s behalf to the notice of intention to consider cancellation by emails to the department on 3 December, 9 December, and 11 December 2019. The responses included a statement by the applicant dated 3 December 2019 (3 December Statement) and a letter containing detailed submissions by the applicant’s former solicitor dated 11 December 2019 (11 December Letter). The responses also included various documents in support of the applicant’s arguments. At the hearing, the applicant stated that the 3 December Statement and the 11 December Letter were accurate and that he relied on them in this review. In this review, the Tribunal has considered the 3 December Statement, the 11 December Letter, and all the emails and documents his former solicitor sent to the department in response to the notice of intention to consider cancellation.

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

As set out in paragraph 2 above, the Minister or the Tribunal (on review) may cancel a visa under s.116(1)(g) of the Act if satisfied that a prescribed ground for cancelling a visa applies to the visa-holder. Also as set out in paragraph 2 above, r. 2.43(1)(l)(iv) of the Regulations provides, in effect, that in the case of a 457 visa holder a prescribed ground for cancelling under s. 116(1)(g) includes an instance where the sponsor has been cancelled or barred under s. 140M of the Act. Plainly, that includes a decision under s. 140M(1)(a) of the Act to cancel a sponsor’s approval as a standard business sponsor.
In the cancellation decision, the delegate found that:
(a)Little Mushrooms was the standard business sponsor who had nominated the applicant in the most recently approved nomination for his 457 visa;
(b)On 15 May 2019, a delegate of the Minister for Home Affairs decided to cancel Little Mushrooms’ approval as a standard busines sponsor under s. 140M(1)(a) of the Act; and
(c)A notice was sent to the applicant on 15 May 2019 advising him of that decision.[7]
[7] Delegate’s decision at p. 2.
On that evidence, the delegate found that there was a ground for cancelling the applicants visa under s. 116(1)(g) of the Act and r. 2.43(1)(l)(iv) of the Regulations.[8]
[8] Delegate’s decision at p. 2.
On the evidence before the Tribunal, Little Mushrooms was the standard business sponsor who nominated the applicant for his 457 visa and the applicant worked for Little Mushrooms until March 2019.[9]
[9] Applicant’s oral evidence at the hearing, the 3 December Statement, and the 11 December Letter.
The notice dated 15 May 2019 referred to in paragraph 11(c) above was contained on the department’s file. The notice was one from the Australian Border Force (ABF) to the applicant dated 15 May 2019. It provided that the sponsorship agreement of Little Mushrooms had been cancelled and that Little Mushrooms was no longer an approved business sponsor from 15 May 2019. The notice went on to state that as Little Mushrooms was no longer an approved sponsor the applicant’s visa may also be cancelled. The notice stated that to ensure continued eligibility to stay in Australia on his 457 visa the applicant must have an approved nomination in place with an approved standard business sponsor. In his 3 December Statement, the applicant stated that he received that notice from the ABF. The department’s file also contained a notice of decision dated 15 May 2019 by the ABF addressed to Little Mushrooms, which records that a decision had been made under s. 140M(1)(a) of the Act to cancel the approval of Little Mushrooms as a standard business sponsor.
In the 11 December Letter, the applicant’s former solicitor stated that the applicant concedes that there were grounds to cancel his visa under s. 116(1)(g) of the Act and r. 2.43(1)(l)(iv) of the Regulations. The letter provided that the applicant knew that Little Mushrooms had its approval as a standard business sponsor cancelled under s. 140M(1)(a) of the Act on 15 May 2019. In the 3 December Statement, the applicant stated that Little Mushrooms had its sponsorship cancelled and that he had not worked for Little Mushrooms since March 2019.
At the hearing, the applicant stated that Little Mushrooms’ registration as a standard business sponsor had been cancelled and that there were grounds to cancel his visa.
On the evidence before the Tribunal as set out in paragraphs 11-16 above, the Tribunal finds:
(a)Little Mushrooms was the standard business sponsor who nominated the applicant for his 457 visa, and it was his approved employer as of 15 May 2019;
(b)On 15 May 2019, the approval of Little Mushrooms as a standard business was cancelled under s. 140M(1)(a) of the Act; and
(c)The grounds to cancel the applicant’s visa under s. 116(1)(g) of the Act and r. 2.43(1)(l)(iv) of the Regulations has been made out.

Consideration of the discretion to cancel the applicant’s visa

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

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

The Tribunal has the following evidence before it:
(a)The applicant came to Australia in 2009 on a student visa;[10]
[10] Applicant’s oral evidence at the hearing.
(b)While in Australia, the applicant obtained Certificates III and IV in Commercial Cookery, a Diploma of Hospitality and Management, and part completed a Diploma of Hospitality and Management;[11]
[11] Applicant’s oral evidence at the hearing. See also 3 December Statement.
(c)The applicant was married in Pakistan in 2012. His wife came to Australia in 2015 while he was still on a student visa;[12]
[12] Applicant’s oral evidence at the hearing.
(d)While the applicant was studying, he worked at an Indian Restaurant in Richmond, who he hoped would sponsor him for a visa when he completed his studies. He completed his studies in 2015 but the business did not sponsor him for a visa;[13]
[13] 3 December Statement.
(e)On 17 October 2015, the applicant was granted a sub-class 457 visa on the sponsorship of a business by the name of Bar-B-Q Lounge. His approved position with that business was as a cook. He was an investor in that business and operated it effectively in partnership with another individual;[14]
[14] 3 December Statement. At the hearing, the applicant stated that the arrangement was legal. There is nothing before the Tribunal to suggest the arrangement was not legal and could not ground a 457 visa.
(f)Shortly after the applicant was granted his 457 visa, his effective partner in Bar-B-Q Lounge tried to exclude him from the business, and in March 2016 purported to terminate his employment with the business. After mediation through intermediaries, the applicant was able to remain working at the business, largely so his 457 visa was not jeopardised, but it become plain to him that he had to find another job;[15]
[15] 3 December Statement.
(g)Little Mushrooms owned and operated a Halal and Pakistani restaurant in Ballarat. In May 2016, Little Mushrooms offered the applicant employment as a cook and at around that time applied to nominate him for a 457 visa. That nomination application was approved on 13 October 2016. He left Bar-B-Q lounge and commenced work for Little Mushrooms at about that time;[16]
[16] 3 December Statement.
(h)On 29 March 2018, the applicant’s initial 457 visa expired and he was granted a further 457 visa for two years under Little Mushrooms’ sponsorship, being the visa that was cancelled on 20 January 2020;[17]
[17] 3 December Statement.
(i)On 30 March 2017, Little Mushrooms applied to the Regional Certifying Body for approval of the applicant’s position under the Regional Sponsored Migration Scheme. That application was approved on 25 May 2017;[18]
[18] 3 December Statement and Regional Sponsored Migration Scheme – Regional Certifying Body Advice dated 25 May 2017 sent to the department in response to the notice of intention to consider cancellation of the applicant’s visa.
(j)Subsequently, Little Mushrooms applied to nominate the applicant for a visa consequent on the approval of the Regional Certifying Body. Little Mushrooms’ nomination application was approved on 20 February 2019. However, the applicant did not apply for a visa (sub-class 187) consequent on that approval. He did not do so because of a combination of lack funds to pay the application fees for himself and his family to apply for a visa at the time Little Mushrooms lodged the nomination application, and by the time the nomination was approved Little Mushrooms’ business had begun to decline and the principal of the business, Mohammed Awais (Awais) was considering closing it;[19]
[19] 3 December Statement.
(k)In about February 2018, the applicant undertook a skills assessment as a cook that he passed. Subsequently, he applied to the Victorian government for nomination for a sub-class 190 visa under the Skilled Nominated Scheme. That application was granted on 27 September 2018. By granting the application, the Victorian government stated that – “We have assessed that your experience and qualifications are currently in demand in Victoria, Australia”. On 1 October 2018, he applied for a sub-class 190 visa. That application is still pending;[20]
[20] 3 December Statement and applicant’s oral evidence at the hearing. Also State nominated Migration – Victoria notice of decision dated 27 September 2018 sent to the department in response to the notice of intention to consider cancellation of the applicant’s visa.
(l)Little Mushrooms’ business began to decline in about mid 2018. The business needed two full time cooks. In early 2018, the full time cook with whom the applicant worked in the business went overseas and did not return. Little Mushrooms did not employ (or could not locate) another full time cook for the business. The applicant repeatedly told Awais that the business needed another cook but Awais did not take the applicant’s pleas seriously. Eventually, Little Mushrooms retained a student as a part time cook but that was not enough and the pressure fell on the applicant to service the business. That resulted in the business declining;[21]
[21] 3 December Statement and applicant’s oral evidence at the hearing.
(m)The lease over the premises from which Little Mushrooms operated its business was due to expire on 16 April 2019. In March 2019, Awais told the applicant that he needed to close the business temporarily until he concluded discissions with the landlord over a new lease. At that time, Awais told the applicant to take annual leave, and then once that leave was used up to take unpaid leave, until he concluded a new lease with the landlord. The applicant had no choice but to comply. The applicant was expecting to be away from work for only one or two weeks. He commenced his leave sometime in March 2019. At the time, the applicant believed Awais would not renew the lease but relocate to new premises. The applicant did not believe Awais would close the business;[22]
[22] 3 December Statement and applicant’s oral evidence at the hearing.
(n)On 10 April 2019, officers from the ABF attended at Little Mushrooms’ Ballarat premises to find it closed. On 3 May 2019, Little Mushrooms received a notice of intention to take action from the ABF to the effect that it was proposing cancelling Little Mushrooms’ approval as a standard busines sponsor as it appeared to have closed its business without informing the department. Awais told the applicant that he proposed to respond by stating that the business was closed temporarily while new lease terms were being finalised but he was not entirely clear with the applicant;[23]
[23] 3 December Statement.
(o)Little Mushrooms responded to the notice of intention to take action by letter dated 9 May 2019 in which it stated that Little Mushrooms business was not closed permanently but only temporarily because its lease had expired and it was negotiating a new lease at different premises;[24]
(p)On 15 May 2019, the ABF (or a delegate of the minister for home affairs and the ABF communicated the decision) cancelled Little Mushrooms’ approval as a standard business sponsor under s. 140M(1)(a) of the Act;[25]
(q)As of 15 May 2019 when the applicant received the letter from the ABF advising him of the cancellation of Little Mushroom’s approval as a standard business sponsor, Awais had not told him clearly what he proposed to do with the business. The applicant called Awais and visited him in the preceding weeks and spoke to him but Awais did not give the applicant a clear answer. When the applicant called Awais after receiving the 15 May 2019 letter from the ABF, Awais told the applicant that he had decided to wind up the business. At that time, the applicant had outstanding holiday pay and he asked Awais for that outstanding pay. The applicant is yet to be paid that outstanding amount. The applicant’s last day at work for Little Mushrooms was in March 2019;[26]
(r)The applicant then began searching for work as a cook. He looked for work on SEEK and visited restaurants in the Melbourne CBD and suburbs searching for work. He was not able to secure work because at the time the Commonwealth government had recently abolished 457 visas and moved to 482 visas. Employers did not understand the system and were reluctant to employ the applicant and contend with a visa system they did not understand. The COVID-19 pandemic, which began in about March 2020, also interfered with the applicant’s ability to find work;[27]
(s)The applicant is currently working as a delivery driver and he does casual security work;[28]
(t)The applicant’s wife owns and operates a taxi licence through a company (Maxkey Pty Ltd). Several drivers drive the taxi on rotation;[29]
(u)The applicant wants to remain in Australia to await the outcome of his application for a 190 visa. He also wants to continue working in Australia while that visa application is pending. He has incurred debts while in Australia, including outstanding rent of $10,000. Between the income he earns and what his wife earns from the taxi licence he is struggling to survive; [30] and
(v)In the 3 December Statement, the applicant stated as follows:
I have invested the best years of my life in Australia, and have worked hard to establish myself here. I have been exploited at various stages during my time here, by employers who did not care about me. My wife and I have worked hard to establish a family here.
Our only hope now is my Skilled visa application, lodged last year. I hope that will be granted to us and put an end to our uncertainty. I ask only that our lawful status is maintained for the next few months, until our skilled application is decided.
[24] Letter from Little Mushrooms to Australian Border Force dated 9 May 2019 sent to the department in response to the notice of intention to consider cancellation of the applicant’s visa.
[25] See paragraph 14 above.
[26] 3 December Statement and applicant oral evidence at the hearing.
[27] Applicant’s oral evidence at the hearing.
[28] Applicant’s oral evidence at the hearing.
[29] 3 December Statement and applicant’s oral evidence at the hearing. Note the delegate stated at p. 5 of the cancellation decision that at the time of the decision Maxkey Pty Ltd had been deregistered. At the hearing the applicant stated that was due to the non-payment of a fee. That has now been remedied and the company is registered. That is correct according to publicly available ASIC records – see Applicant’s oral evidence at the hearing.

A 457 visa is a temporary visa that provides for skilled people (and their immediate families) to come to Australia to work for an approved employer for up to four years. The visa operated on the premise that it would not undermine job opportunities for Australians. The 457 scheme allowed visa holders to fill roles where there was a genuine skills shortage or, in effect, where a suitably qualified Australian worker is not available.[31]
[31] Larsen G; The subclass 457 Visa: a quick guide; Parliament of Australia at >
The applicant’s stay in Australia on his 457 visa was for the purpose of working for Little Mushrooms to fill a need that employer had for a cook, which it could not fill with a suitably qualified Australian worker. Between March 2019 and 15 May 2019, that purpose of the applicant’s visa and his continued stay in Australia on the visa was undermined. In March 2019 Little Mushrooms stopped trading and placed the applicant on leave until further notice. On 15 May 2019, Little Mushrooms’ approval as a standard business sponsor was cancelled under s. 140M(1)(a) of the Act. Shortly after, Awais notified the applicant that he was winding up Little Mushrooms’ business. Insofar as the applicant remained employed by Little Mushrooms between March 2019 when he stopped work and 15 May 2019 when the applicant spoke to Awais about the notice from the ABF (because he was on approved leave), the applicant’s employment with the company ceased when Awais told the applicant he was winding up Little Mushrooms’ business (which had not traded since March 2019). Strictly, the applicant was made redundant at that time (if his employment did not end earlier) because his employer advised him that it did not wish his former function to be performed by him or anyone else.[32] From 15 May 2019, the applicant’s continued stay in Australia on his 457 visa fell into tension with the purpose of that visa.
[32] See R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Cooperative Limited (1977) 16 SASR 6.
The Tribunal accepts that the applicant searched promptly for a new sponsoring employer after Awais told him in May 2019 that Little Mushrooms was winding up its business. The Tribunal accepts that the applicant’s search for a new sponsoring employer was impeded by uncertainty by employers about 457 and 482 visas and it would have been impeded from about March 2020 by the COVID-19 pandemic and the related business interruptions and shutdowns in Victoria. The Tribunal accepts that the applicant is a qualified and experienced cook who could meet a skills shortage suffered by an Australian employer. The Tribunal also acknowledges that the applicant was the subject of a successful application to nominate him for a 187 visa under the Regional Sponsored Migration Scheme. The Regional Sponsored Migration Scheme is a variation of the Employer Nomination Scheme. It allows employers in regional areas to sponsor overseas employees for permanent residency to fill positions the employer cannot fill from the local workforce.[33] That is analogous to the purpose of a 457 visa. Finally, the applicant wants to remain in Australia in the short term to await the outcome of his 190 visa application. The Tribunal acknowledges that the applicant has successfully undertaken the skills assessment for such a visa and the Victorian government has assessed the applicant’s experience and qualifications to be in demand in Victoria. Again, the purpose of a 190 is visa is analogous to that of a 457 visa in that it provides for the applicant to meet an assessed skills shortage. If the 190 visa is granted the applicant will then remain in Australia on that visa. The Tribunal weighs the matters in this paragraph against cancelling the applicant’s visa.
[33] >
On the applicant’s claim in relation to the impact of COVID-19, as set out in the preceding paragraph, the Tribunal accepts that the pandemic hampered the applicant’s search for a new employer and it has weighed that against cancelling the applicant’s visa. But the weight the Tribunal places on that matter in the applicant’s favour is limited. The COVID-19 induced business shutdowns and interruptions did not commence until about March 2020. By that time, the applicant had been in Australia searching for a new sponsoring employer since about mid-May 2019 without success. The Tribunal considers the period between May 2019 and March 2020 during which the applicant would not have been hampered by COVID-19 to constitute a reasonable opportunity for the applicant to locate a new sponsoring employer. He was not able to secure another nomination.
Under this head, the Tribunal considers there to be two matters that weigh heavily in favour of cancelling the applicant’s 457 visa. First, although the applicant searched for a new employer to nominate him for a 457 or 482 visa, he was not able to secure another application to nominate him let alone an approved nomination. The applicant has now been in Australia for two years since the cancellation of Little Mushrooms’ approval as a standard business sponsor under s. 140M(1)(a) of the Act without having been the subject of another nomination application. As set out in the preceding paragraph, the applicant had the period between May 2019 and about March 2020 to secure another nomination unimpeded by COVID-19. The Tribunal weighs that heavily in favour of cancelling the applicant’s visa.
Second, the applicant now wishes to remain in Australia to await the outcome of his 190 visa application (being a permanent visa) and he wants to continue working while he waits. Although the Tribunal has acknowledged that the purpose of a 190 visa has some analogies with that of a 457 visa and has weighed that in the applicant’s favour (as set out in paragraph 22 above), and it acknowledges that a 457 visa is often a pathway to permanent residency in Australia, remaining in Australia to await the outcome of a permanent visa application and to work for an employer that has not applied to nominate the visa holder is not strictly consistent with the purpose of a 457 visa. The Tribunal also considers that to weigh heavily in favour of cancelling the applicant’s visa.
Before leaving this head of discretion, the Tribunal deals with a submission made on the applicant’s behalf in the 11 December Letter, in which the applicant’s former solicitor did not specifically deal with this head, but made a submission that touched on it. At the time of that letter, the applicant’s visa had four months to run – to 29 March 2020. The focus of the submissions in the letter on the proper exercise of delegate’s discretion were made to that background. The applicant’s former solicitor submitted that if the delegate cancelled the applicant’s 457 visa, he would be eligible to apply for a bridging visa E allowing him to remain in Australia with his family pending the outcome of his 190 visa application. But the solicitor argued that the bridging visa E was unlikely to carry work rights. The solicitor argued that it would visit undue hardship on the applicant to remain in Australia with his wife and children to await the outcome of his 190 visa application without the ability to work to support his family. For that reason, the delegate should preserve the applicant’s lawful status in Australia for the remaining term of his 457 visa (by not cancelling the visa) so that the applicant was certain he could remain in Australia and work while his 190 visa application was being processed. The submission assumed (or at least hoped) the department would determine the applicant’s 190 visa application during the term of the applicant’s 457 visa. The applicant’s 457 visa has now expired by effluxion of time. So it is now not the case that the applicant’s 457 visa would subsist if the cancellation decision were set aside. That submission is now of limited relevance.
The submission that the applicant could not remain in Australia on a bridging visa E that carried work rights if the delegate cancelled his visa has turned out to be incorrect. The applicant is now in Australia on a bridging visa E, which carries work rights, pending this review being determined. The applicant and his wife are currently working on those bridging visas.[34]
[34] Applicant’s oral evidence at the hearing.
At the hearing, the applicant stated that he considered he could apply for a bridging visa E to remain in Australia with his family to await the outcome of his 190 visa application even if the Tribunal affirmed the delegate’s decision to cancel his visa. Plainly, that proposition is correct. If the applicant is granted another bridging visa E once this review had been determined allowing him to remain in Australia with his family pending his 190 visa application being decided, on the evidence before the Tribunal, there is no reason why any such bridging visa E should not also carry work rights in the same way as the applicant’s current bridging visa E. The Tribunal considers that could now weigh in favour of cancellation but for the purpose of this head the Tribunal treats the matter to be neutral. The Tribunal has dealt with the point for completeness given it featured heavily in the 11 December Letter. The Tribunal returns to this matter where relevant below.
Under this purpose-of-the-457-visa head, on balance, the Tribunal considers the matters that weigh in favour of cancelling the applicant’s visa do so heavily and they outweigh the matters against.

The extent of compliance with visa conditions

The applicant’s visa contained condition 8107(3)(b), which provided that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.[35]
[35] Department’s records on the Integrated Client Services Environment (ICSE).
As stated in paragraph 21 above, the applicant’s employment with Little Mushrooms ceased in around the middle of May 2019 when Awais informed the applicant that he was winding up Little Mushrooms’ business. The applicant’s employment with Little Mushrooms did not resume (and remained ceased) for the following 60 consecutive days and the applicant was not able to secure another application to nominate him (or approved nomination) in those 60 consecutive days or at all. Accordingly, strictly the applicant breached condition 8107(3)(b) of his visa.
However, that visa breach came about from the same circumstances in which Little Mushrooms’ approval as a standard business sponsor was cancelled under s. 140M(1)(a) of the Act. The Tribunal has considered and weighed those circumstances as set out in paragraphs 45 to 47 below. The Tribunal does not weigh the applicant’s breach of condition 8107(3)(b) of his visa individually or in isolation to the broader circumstances in which the grounds for cancellation arose. It does not weigh that visa condition breach individually in favour of cancelling the applicant’s visa. On its own, the Tribunal considers the applicant’s visa condition breach to be neutral.
Otherwise, there is no evidence before the Tribunal to the effect that the applicant has breached any other condition of his visa. On the evidence, he has always remained within the conditions of his visa. The Tribunal weighs that against cancelling the applicant’s visa.

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

The Tribunal has the following evidence before it relevant to the applicant’s hardship claims:
(a)The applicant’s wife has been in Australia since 2015. His sons were born in Australia and have never been back to Pakistan. The applicant does not have any other family in Australia. The rest of his family are in Pakistan;[36]
(b)The applicant’s older son has started kindergarten. Both of his sons can only speak English and will not be able to communicate in the local language if they must return to Pakistan. Their education is in Australia. Their future, especially education, will be uncertain in Pakistan. They will be better off in Australia; and[37]
(c)The applicant and his wife planned for a future in Australia. He wants to raise his sons in Australia.[38]
[36] Applicant’s oral evidence at the hearing.
[37] Applicant’s oral evidence at the hearing.
[38] Applicant’s oral evidence at the hearing and 3 December Statement.
By their nature, those hardship claims assume that the cancellation of the applicant’s visa will result in the applicant and his family being required to return to Pakistan. Below, the Tribunal assesses the claims on the grounds that the assumption is correct. But it also qualifies its assessment of the claims because the assumption is not necessarily correct in the circumstances of this review.
The applicant has been in Australia since 2009. He has lived in Australia as a married man with his wife since 2015. They had a son in 2017 and then another in 2018, who have never been to Pakistan. The Tribunal accepts that in his time in Australia the applicant would have established a network of friends and associates (both economic and personal). The applicant’s wife would also have established a network of friends and associates. The Tribunal accepts that the applicant and his wife will encounter some hardship readjusting to life in Pakistan if they must return. The hardship will be both social and economic. The applicant and his wife will need to re-establish their social lives after so long away from Pakistan and that will entail hardship. If the applicant and his wife find work in Pakistan (which will take some time), it will not be as well remunerated as their current work in Australia. In that event, it will take the applicant longer to repay the debt he has incurred in Australia (about $10,000). That will also entail hardship on the applicant and his wife. Further, the current COVID-19 pandemic could interfere with attempts by the applicant and his wife to locate work in Pakistan. The Tribunal accepts that, in the longer term, the family will have less economic opportunities in Pakistan than they will in Australia. The Tribunal weighs those against cancelling the applicant’s visa.
The Tribunal also accepts that returning to Pakistan will visit some hardship on the applicant’s two sons. They will need to learn a new language and need to adjust to a different life in Pakistan. Also, the Tribunal accepts that in the longer term, the applicant’s sons will have more limited educational and career opportunities in Pakistan. The Tribunal also weighs that against cancelling the applicant’s visa.
But the applicant and his wife are still relatively young. He is 32 and his wife is 30. The Tribunal considers that although having to re-adjust to life in Pakistan will entail some challenges for the applicant and his wife, their relatively young age will be in their favour when seeking to re-establish their lives. The applicant’s Australian qualifications can only assist him when it comes to re-establishing his career. In relation to the applicant’s sons, they are still very young and will have time to learn the language and adjust to life in Pakistan. Also, the applicant’s older son has recently started kindergarten. Any dislocation in his education will be limited. Those matters mitigate the weight the Tribunal places on the applicant’s hardship claims.
But the cancellation of the applicant’s visa will not in itself necessarily result in the applicant and his family being required to return to Pakistan. As set out in paragraph 26 to 28 above, the applicant has a 190 visa application pending. As he stated at the hearing, it is open to him to apply for a bridging visa E to allow him to remain in Australia pending his 190 visa application being determined even if the Tribunal affirms the delegate’s cancellation decision. Assuming the applicant is granted another bridging visa E allowing him and his family to remain in Australia pending the outcome of his 190 visa application, any hardship consequent upon him and his family having to return to Pakistan will not be so much because of the cancellation decision now under review being affirmed but because his 190 visa is ultimately not granted. That reduces further the weight the Tribunal places on the applicant’s hardship claims as set out in paragraph 34 above.
At the hearing, the applicant stated that what happened in 2019 (losing his employment with Little Mushrooms and that company’s approval as a standard business sponsor being cancelled) was a “disaster” for him. He stated that it led to financial problems because it took him a while to find work again and the work he has now is uncertain. He said the events of 2019 led to him now having an uncertain future. He stated also that if he did not work in Australia he could not support his parents in Pakistan. In the 3 December Statement, he stated that he wanted to remain in Australia until his 190 was granted to put an end to the family’s uncertainty.
The Tribunal understands those claims to be related to the hardship arguments made on the applicant’s behalf by his former solicitor in the 11 December Letter. Again, those arguments focused on the possibility that if the applicant’s 457 visa was cancelled and he obtained a bridging visa E allowing him to remain in Australia pending the outcome of his 190 visa application, the bridging visa E likely would not have work rights. In that event, the applicant would not be able to support his wife and children in Australia while waiting for the 190 visa and would have no choice but to return to Pakistan. In that event, the applicant’s financial investment in applying for the 190 visa would be wasted (resulting in hardship to the applicant and his family) and the intention of the 190 visa scheme would be subverted. The focus of the argument put on behalf of the applicant was that his 457 should not be cancelled so that he could continue to work in Australia for the life of that visa pending his 190 visa being granted.
In this review, the Tribunal has considered the claims set out in paragraphs 40 and 41 above but considers them now to have more limited relevance and to carry less weight than they did before the delegate, although the Tribunal has given them some weight (albeit limited) against cancelling the applicant’s visa. The applicant’s 457 visa has now expired by effluxion of time. The applicant is now on a bridging visa E that carries work rights. The applicant is currently working on that bridging visa and his wife is operating the taxi business through Maxkey. If the Tribunal affirms the delegate’s cancellation decision, and assuming the applicant is granted another bridging visa E allowing him to remain in Australia with his family pending the outcome of his 190 visa application, on the evidence before the Tribunal, there is no reason why the applicant’s current position in relation to work rights should change. On the evidence, there is no reason why any bridging visa E granted to the applicant after this review should not also carry work rights in the same way as his current bridging visa. In that event, the applicant’s fears as set out in paragraphs 39 and 40 above will not materialise. But the Tribunal considers it possible that if the applicant is granted another bridging visa E, it will not come with work rights. If that occurs, the Tribunal accepts the applicant will then face the uncertainty and hardship set out in paragraphs 39 and 40 above until his 190 visa application has been determined, and the Tribunal gives them some weight against cancelling the applicant’s visa.
The Tribunal has also weighed the applicant’s general claim that he wants to remain in Australia for his sons’ future against exercising its discretion to cancel the applicant’s visa. But the weight the Tribunal places on that matter is limited. Although the Tribunal acknowledges that a 457 visa is often a pathway to permanent residency in Australia (and all the benefits that affords including educational and career opportunity), hence the weight the Tribunal has given this claim (albeit limited), a 457 visa is a temporary visa that does not come with any guarantee or express representation of permanent residency.

On balance, the applicant’s hardship claims weigh against the Tribunal cancelling the applicant’s visa, although their weight is reduced by the matters set out above under this heading. In the end, the Tribunal considers the applicant’s hardship claims to weigh against cancellation minimally to moderately.

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

The applicant claims that Little Mushrooms’ approval as a standard business sponsor was cancelled under s. 140M(1)(a) of the Act in the circumstances set out paragraphs 19(g) to (q) above. The applicant claims that Little Mushrooms was not honest or transparent with him about what was happening with its business, did not tell him that it intended to close its business until after its approval as a standard business sponsor was cancelled, and that it exploited him (as did Bar-B-Q Lounge) as well as still owing him money for outstanding pay and entitlements.
On the evidence before it, the Tribunal accepts that the circumstances in which Little Mushrooms’ approval as a standard business sponsor was cancelled under s. 140M(1)(a) of the Act, being the ground upon which the power to cancel the applicant’s visa has been enlivened, were beyond his control. It follows that the Tribunal accepts that the circumstances in which the applicant’s employment with Little Mushrooms ceased were also beyond his control. The applicant was not the reason Little Mushrooms’ lease expired or its business declined, which ultimately were the reasons for its approval as a standard business sponsor being cancelled and for the applicant’s employment with the company ceasing. The Tribunal weighs that against cancelling the applicant’s visa.
As to the applicant’s general claim of exploitation by Little Mushrooms (and Bar-B-Q Lounge), the Tribunal also acknowledges the vulnerable position in which employees on 457 visas find themselves when dealing with an unscrupulous employer. An employee on a 457 visa is vulnerable because often the subsistence of the visa relies on the employee maintaining the visa holder’s employment. This leads to 457 visa employees being prepared to accept a standard of conduct by an employer in order to maintain employment that they would not otherwise be prepared to accept. Employers will often take advantage of that dynamic and will exploit employees. The Tribunal acknowledges the vulnerable position in which the applicant found himself when Awais was not open with him about the future of Little Mushrooms’ business (and his employment with the business) and then when Little Mushrooms’ approval as a standard business sponsor was cancelled and his employment ceased. At that point, the applicant was left with having to find a new sponsor quickly or his visa would be cancelled. Further, that Little Mushrooms left the applicant with outstanding pay and entitlements reinforces the applicant’s claims of mistreatment and exploitation. An employer of a 457 visa employee can leave the employee out of pocket in the knowledge that the employee is less likely to complain than an employee that is not on a temporary visa that relies on continued employment for its subsistence. The Tribunal weighs all of those matters against cancelling the applicant’s visa but only moderately so. The claims were general and not supported by strong documentary evidence.

Past and present behaviour towards the Department

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

Whether there would be consequential cancellations under s. 140

The visas of the applicant’s wife and two sons were cancelled consequentially because of the cancellation of the applicant’s visa. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in the separation of the applicant from his family. Accordingly, this consideration is neutral. Insofar as the applicant’s wife and children will suffer hardship by reason of the cancellation of the applicant’s visa, the Tribunal has considered those matters in paragraphs 34 to 44 above.

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

The applicant is currently on a bridging visa E (class WE subclass 050) pending the outcome of this review. The applicant was granted that visa on 15 April 2020. Before that, he held a bridging visa E that was granted on 5 February 2020. It ceased on 15 April 2020 when his current bridging visa was granted.[39] So, the applicant has held a bridging visa E from 5 February 2020.
[39] Applicant’s oral evidence at the hearing and departments records in ICSE.
If the Tribunal were to affirm the cancellation decision, the applicant’s bridging visa will likely cease. But the applicant will be entitled to apply for another bridging visa E pending the outcome of his application for a 190 visa. In the absence of the Minister granting the applicant another visa, he will not have authority to remain in Australia with his family. If that is the case, the applicant and his family 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. The Tribunal has taken those matters into account.
Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s. 116 of the Act, may apply for certain prescribed classes of visas but not others in Australia. Regulation 2.12 of the Regulations prescribes the classes of visas. Subclass 457 (and 482) visas are not prescribed. Consequently, this limits what visa applications the applicant can make whilst onshore. The Tribunal has taken that potential limitation on the applicant’s future visa applications actions into account and weighed that against exercising its discretion to cancel the applicant’s visa.
The cancellation of the applicant’s visa will not attract the application of Public Interest Criteria 4013 (PIC 4013). The visa cancellation will not attract the risk factors set out in PIC 4013 necessary to invoke its application. The Tribunal considers that to have a neutral impact on this review.
The Tribunal has considered the potential impact of PIC 4014 on the applicant. That public interest criteria provides that a visa holder will be affected by a risk factor if the person left Australia as an unlawful non-citizen or the holder of certain bridging visas including a bridging visa E. The risk factor will not operate if the visa holder left Australia within 28 days after the substantive visa ceased to be in effect or a while on a bridging visa granted within 28 days after the substantive visa ceased to be in effect. If it applies, PIC 4014 will effectively bar the visa-holder from obtaining another visa unless the application is made more than three years after the person left Australia or there are compelling circumstances affecting Australia, or compassionate or compelling circumstances affecting the interests of an Australian resident, justifying the grant of a visa within three years after departure.
As set out in paragraph 50 above, the applicant has held a bridging visa E from the date his 457 visa was cancelled on 26 February 2020. His first bridging visa E was granted on 5 February 2020, which was within 28 days of his 457 visa being cancelled. So, as things presently stand, the applicant will not be affected by the relevant risk factors that will attract the application of PIC 4014. If that is correct, it has a neutral impact on this review. But the Tribunal acknowledges that, depending on what happens between the date of this decision and when the applicant leaves Australia, PIC 4014 could be invoked and the applicant could be impacted by it. The Tribunal approaches the matter on the grounds that PIC 4014 could be invoked at the time the applicant leaves Australia. In that event, the applicant will not be able to obtain a visa from offshore within three years of leaving. If he subsequently wants to return on another visa within three years of leaving, the Tribunal has considered the possibility that the applicant might not be able to make out the necessary compelling or compassionate circumstances justifying a visa grant in order to obtain a visa in those circumstances. The Tribunal has weighed those matters in the applicant’s favour; it has weighed them against cancelling the applicant’s 457 visa.

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

The Tribunal has considered Australia’s international agreement and treaty obligations.
Article 3 of the United Nations Convention on the rights of the Child (CROC), to which Australia is a signatory, provides that the best interests of the child shall be a primary consideration in any action concerning children by administrative authorities. Accordingly, in this review, the Tribunal has considered the best interests of the applicant’s daughter (the third applicant) as a primary consideration.[40]
[40] For the correct approach see Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 at [21]-[33] per Branson, North, and Stone JJ and DXQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1184 at [53]-[57] per Steward J.
At the hearing, the applicant said that if he wanted to remain in Australia because his sons were born in Australia, could only speak English, and have never been to Pakistan. His older son had started kindergarten. He said his children would be better off in Australia as their education lay here rather than in Pakistan.
As the Tribunal has already stated, that claim assumes that if the Tribunal affirms the decision to cancel the applicant’s visa, that will have the consequence of the applicant being required to return to Pakistan with his family. That is not necessarily so because the applicant will be able to apply for a bridging visa E allowing him to remain in Australia pending the outcome of his 190 visa application. Assuming he is granted another bridging visa E, if his 190 visa application is then granted he will be able to remain in Australia on that visa. If the 190 visa application is refused, then failing some other step the applicant takes to remain in Australia, he will be required to return with his family to Pakistan. So viewed that way, it is not so much the cancellation of the applicant’s 457 visa that will necessitate him having to return to Pakistan with his family but the refusal of his 190 visa application. But the Tribunal will approach the analysis under this head on the ground that affirming the decision to cancel the applicant’s visa will necessitate his return to Pakistan with his family.
The Tribunal accepts that Australia generally has a better standard of living than Pakistan and will generally offer better future educational and career opportunities to the applicant’s children. The Tribunal accepts that the applicant’s children are likely to have a better education in Australia than in Pakistan and will generally be better off in Australia than in Pakistan. In that sense, the best interests of the applicant’s children under the CROC are better served by remaining in Australia. Accordingly, cancelling the applicant’s 457 visa now will not be in the best interests of the children under the CROC. From the standpoint of the best interests of the children, setting aside the delegate’s cancellation decision is the preferable decision because that will facilitate the applicant’s children remaining in Australia.
But to be balanced against that finding are two matters that reduce its force in this review. First, that the applicant’s children will be better off in Australia than in Pakistan is a conclusion of largely general application. It can be applied to many (if not most) instances of visa cancellation that will result in a child being required to leave Australia for a less developed country (such as Pakistan) or one that does not provide for as many educational or career opportunities as Australia. The applicant here has adduced little evidence of the particular circumstances his family is likely to face in Pakistan to explain why those circumstances will particularly disadvantage his children or be substantially against their best interests such that the point is elevated above that of the general observation.
Second, the applicant’s children are four and two. They obtained their visas consequentially on the applicant obtaining his visa. There is no evidence before the Tribunal that the applicant’s wife and his children have applied for visas to remain in Australia independently of the applicant. The Tribunal concludes that if the applicant’s visa remains cancelled with the consequence that he must return to Pakistan, his children will return with him and his wife. In that event, the children will not be separated from either of their parents. Again, the applicant has adduced limited evidence to explain specifically why his children will be so disadvantaged or why their best interests will be intruded upon by having to move to Pakistan given they will still be with their parents other than to say more generally that they will have a better future in Australia (with their parents).
In conclusion on the best interests of the children under the CROC, the Tribunal finds that by reason of the matters set out in the paragraph 60 above, cancelling the applicant’s visa will not be in the best interests of the children. The preferable decision would be to set aside the cancellation decision. The Tribunal weighs that in the applicant’s favour in this review; that is, against cancelling his visa. But by reason of the matters set out in paragraphs 61 and 62 above, the Tribunal considers the extent to which cancelling the applicant’s visa will not be in the best interests of the children to be minimal to moderate. That reduces the weight the Tribunal places on this consideration. The Tribunal returns to the weight given to the consideration as against those favouring cancelling the applicant’s visa in paragraphs 69 and 70 below.
Otherwise, on the evidence before the Tribunal, Australia’s international agreement and treaty obligations are not engaged by the cancellation of the applicant’s visa.

Other relevant matters

While the applicant and his family, as holders of temporary visas, are not prevented from leaving Australia[41] they might be subject to international border restrictions in Pakistan preventing their entry because of the current COVID-19 pandemic if it turns out that the cancellation of the applicant’s visa will necessitate him having to return to Pakistan with his family. That could delay their departure from Australia. In that event, it is open to the applicant and his family to apply for bridging visas allowing them to remain in Australia while arranging their return to Pakistan.[42] The Tribunal has taken all those matters into account.

Conclusion on discretion

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

The Tribunal considers that the applicant’s inability to secure another application to nominate him for a visa after Little Mushrooms’ approval as a standard business sponsor was cancelled on 15 May 2019 and it became apparent that his employment with Little Mushrooms had ceased (as set out in paragraph 24 above), and the extent to which his proposed stay in Australia is largely not consistent with the purpose of his 457 visa (although there are some consistencies) (as set out in paragraph 25 above), to weigh heavily in favour of cancelling his visa. Some matters effectively mitigate the weight the Tribunal has placed on those two matters (as set out in paragraph 22 above) but they still weigh heavily in favour of cancellation.

The Tribunal has weighed several matters against cancelling the applicant’s visa. In particular, the Tribunal has examined the circumstances in which the grounds for cancelling the visa arose and has found that those circumstances were beyond the applicant’s control. The Tribunal has weighed that against cancelling the applicant’s visa. The Tribunal acknowledges that the ‘General visa cancellation powers’ departmental policy provides that, as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose was beyond the visa holder’s control. But that is not a rule of inflexible application but a general approach expressed in departmental policy. For the purpose of this review, the Tribunal considers the consideration to be one to be weighed with others. The Tribunal has also considered the best interests of the applicant’s children under the CROC. The Tribunal has concluded that deciding to set aside the delegate’s decision to cancel the applicant’s visa is the outcome that is in the best interests of the children under the CROC (as against affirming the cancellation decision) but, on the evidence, only minimally to moderately so.

On balance, the Tribunal considers the matters favouring cancelling the applicant’s 457 visa as set out in paragraphs 24 and 25 above (and as analysed in the context set out in paragraphs 19 to 29 above) to outweigh the various matters favouring not cancelling the applicant’s visa including, both individually and cumulatively:

(a)The circumstances in which the cancellation ground arose being beyond the control of the applicant; and
(b)The best interests of the third applicant as a primary consideration under the CROC favouring setting aside the cancellation decision.

In the end, the Tribunal considers the matters set out in paragraphs 24 and 25 above (and as analysed in the context set out in paragraphs 19 to 29 above) to weigh heavily in favour of cancelling the applicant’s 457 visa. They outweigh the matters favouring not cancelling the visa, which the Tribunal considers weigh moderately both when considered individually and cumulatively.

The Tribunal concludes that the correct and preferable exercise of its discretion favours affirming the delegate’s decision to cancel the applicant’s visa.

DECISION

The Tribunal affirms the decision to cancel the applicant’s Temporary Business Entry (class UC) (Temporary Work (Skilled)) (subclass 457) visa.

L. Hawas
Senior Member

Key Legal Topics

Areas of Law

Immigration
Administrative Law

Legal Concepts

Judicial Review
Procedural Fairness
Statutory Construction
Appeal

[2021] AATA 2645

3 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal