Employer Sponsored Visa Cancellation

Lahav (Migration) [2021] AATA 1571 

Employment for the Subclass 457 visa ceased over 60 days, and the Department exercised discretion to cancel the visa pursuant to section 116(1)(b) of the Act. 

The Tribunal held that it did not matter that the applicant held a high-level skill set and that what was important was that the applicant continues to meet the criteria and conditions attached to the visa he is granted. 

The Tribunal accepts that the applicant now has a viable position with the new sponsor in which it is proposed he commences work as soon as his migration status is formalised. 

The Tribunal sets aside the decision under review and substituted a decision not to cancel the Subclass 457 visa. 

Perez (Migration) [2020] AATA 5041

Background: 

• The applicant was granted a Subclass 457 visa on 01 March 2019. 
• The nominator advised the department on 26 August 2019 that the applicant had failed to commence employment with them and as such, her employment was terminated effective 05 August 2019. 
• She had admitted to the breach of condition 8107. 
• In the response to the NOICC, she indicated the circumstances were outside of her control. 
• The applicant was in her last trimester of her pregnancy when the Subclass 457 visa was approved. 
• Her doctor indicated that her pregnancy resulted in her not being able to commence work within the 90 days stipulated by the condition. 
• She was then unable to wok following the birth due to the onset of postnatal depression. 

Tribunal’s Considerations: 

• The extent of compliance with visa conditions: 
  • Apart from the issue in question, there is no evidence that the applicant has a history of non-compliance with visa conditions. 

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

• • The Tribunal gives the document significant favourable weight. These pregnancy issues were (she claims) ‘circumstances beyond her control’. 
  • They have (in the Tribunal’s opinion) manifestly contributed to the breach of condition 8107 and led, inexorably, to her visa cancellation. 
  • She has claimed to have suffered significant psychological hardship from her pregnancy and its aftermath. 

• Circumstances in which grounds of cancellation arose: 

• • The Tribunal is satisfied from both written and oral evidence that the circumstances in which the ground for cancellation arose were ‘beyond the applicant’s control’. 

• Whether: 

• • there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention;  
  • Whether indefinite detention is a possible consequence of cancellation; 
  • Whether there are provisions in the Act which prevent the person from making a valid application without the Minister’s intervention; or 
  • Whether any international obligations, including non-refoulement and best interests of children as a primary consideration, would be breached as a result of the cancellation. 

• • • • The applicant and her family have lived in Australia for more than 10 years and the applicant’s youngest son, was recently born in Australia on 24 April 2019. 
      • They were well established in the Australian community and the holder’s children all commenced their education here upon their first arrival in the country. 
      • It would be emotionally difficult for the holder’s children to be removed from Australia, as her children have already built strong ties to the country. 
      • Most, if not all, of her children’s friends would be left behind. 
      • This will substantially affect the growth and emotional coping of the children especially since they have not lived in the Philippines for almost 10 years. 

The Tribunal set aside the decision under review and substituted a decision not to cancel the first named applicant’s Subclass 457 visa. 

Karnaljeet Singh (Migration) [2022] AATA 932 (Member: Mary Sheargold)

The 457 sponsor was wound up in insolvency, but the decision under review was set aside. 

The applicant held a 457 visa as an Analyst Programmer sponsored and nominated by Deimos Technologies Pty Ltd. 

In December 2019, he was told to stop working and has not worked since. 

The Minister cancelled his visa under section 116 of the Act because the prescribed condition set out in regulation 2.43(1)(1)(iv) exists: specifically, his sponsor has been cancelled or barred under section 140M of the Act. 

In September 2020, he was employed as a software engineer by SAAS Value Pty Ltd in Wodonga, and applied for a Skilled Employer Sponsored (Regional) Subclass 494 visa. 

Member’s considerations: 

• As section 116 does not require mandatory cancellations, the Tribunal must proceed to consider whether the visa should be cancelled. 
• The Minister’s power to cancel a visa pursuant to section 116(1) of the Act is discretionary. 
• Therefore, the Tribunal must decide whether or not to exercise discretion to cancel the visa. 
• Noting that there are no prescribed considerations in either the Act or the Regulations, the Tribunal must weigh up all the evidence against the matters set out in the Department’s PAM3. 
• The Tribunal has asked the following questions: 

• • What was the purpose of Mr Singh’s travel to and stay in Australia? 
  • To what extent has he complied with his visa conditions? 
  • What degree of hardship may be caused if his visa is cancelled? 
  • In what circumstances did the ground for cancellation arise? 
  • How has Mr Singh behaved towards the Department in the past? How has he behaved during this process? 
  • Would any other visas be cancelled as a consequence of cancelling Mr Singh’s visa? 
  • What are the legal consequences of cancelling Mr Singh’s visa? 
  • Does Australia have any international obligations that may arise if Mr Singh’s visa was cancelled? 

Considering the circumstances as a whole, the Tribunal decides that Mr Singh’s visa should not be cancelled.

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