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Immigration Daily News Dodging A Bullet – Holder of 457 Visa Avoids Visa Cancellation In Appeal Before MRTAustralian Immigration Daily News
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Dodging A Bullet – Holder of 457 Visa Avoids Visa Cancellation In Appeal Before MRT
All visas that are issued for “temporary skilled employment” in Australia, familiarly known as “457 visas” include a Condition 8107 which provides that the holder of such a visa must not cease employment for a period of more than 90 consecutive days. A breach of this condition can lead to cancellation of the visa under section 116 of the Migration Act. And the effect of the cancellation of the primary visa holder’s 457 visa can result in the consequent cancellation of the visa entitlements of members of the visa holder’s family unit (spouse/partner and children) by “operation of law” under section 140 of the Act.
A case that was recently heard before the Migration Review Tribunal – 1417329 (2015) MRTA 150 – (decided on 4 February 2015) illustrates how the cancellation power may be exercised by the Department. The decision also provides some guidance on the kinds of evidence that may be put forward to avoid the cancellation on “discretionary grounds” (either in recent to a notice of intended cancellation that has been issued by the Department or in the context of an appeal against visa cancellation taken to the MRT).
The circumstances of the case were that the visa holder, a citizen of Bangladesh, had been granted a 457 visa to work in Australia as an accountant. Her husband and two young children accompanied her to Australia. The visa holder began work with her “standard business sponsor” in January 2013. However, the sponsoring company went into liquidation in October 2013, and, consequently, the visa holder stopped working for the sponsor. She did not immediately begin looking for new employment with a different sponsor, as the owner of her original sponsoring employer had assured her that he was planning to establish a new business and that he would re-employ her in that business.
This new job with the original sponsor ultimately did not materialize. Thereafter, the visa holder’s father died (in March 2014). The distress she suffered as a result caused her to postpone her search for alternative employment. She did not find a new job until September 2014, nearly a full year after she had stopped working with the original employer.
In the meantime, the Department was informed that the original sponsor had gone into liquidation. Consequently, in April 2014, the Department sent notice of its intention to cancel the visa to an old temporary address that it had for the visa holder in Bangladesh (the MRT's decision observes that there is no legal requirement for holders of 457 visas to advise the Department of changes of address, although this is probably a wise thing to do nonetheless). The notice apparently did not come to the attention of the visa holder and she did not submit any reply to it. Then, in June 2014, the Department sent notice of the cancellation of the visa to the same outdated mailing address in Bangladesh.
The visa holder did not become aware of the visa cancellation until she had found a new job. When the prospective new employer attempted to check her visa status through the Visa Entitlement Verification Online system that is maintained by the Department, “error” messages that were received prompted the visa holder to contact a migration agent. Subsequent inquiries with the Department revealed that the 457 visa had been cancelled. The cancellation of the visa was ultimately re-notified by the Department, and the appeal to the MRT then ensued.
The member of the MRT who presided over the case concluded that the evidence did, of course, establish that the visa holder had breached Condition 8107. It was really beyond dispute that she had not taken up work with a new sponsoring employer for more than 90 days after she had stopped working for the original employer.
The member then had regard to the guidelines in the Department’s Procedures Advice Manual (“PAM3”) to assess whether there was a basis in policy for overturning the cancellation of the visa. Fortunately for the applicant, the member did find that there were such grounds.
The factors that enabled the visa holder to salvage her position before the MRT were that: a) she had found new employment as an accountant, so the original purpose of her travel and stay in Australia remained the same as at the time that the 457 visa had initially been issued; b) the seriousness of the breach of the visa condition was diminished because the visa holder was not responsible for ceasing employment with her original sponsor, and her delay in seeking new employment was excused to some extent by the fact that she had received representations from the original employer that she would be employed in a new business, as well as by the distress that she suffered as a result of her father’s death; and c) the visa holder had behaved cooperatively toward the Department, in that she had not been guilty of any other breaches of her visa conditions and had approached the Department to clarify her visa status as soon as she became aware that it might be in question.
The Tribunal member thus concluded that because the visa holder had not “deliberately flouted immigration law”, had ceased employment with her original sponsor due to factors outside her own control, and had ultimately found employment that was consistent with the original purpose of her travel to and stay in Australia to work as an accountant. Thus, the member determined that the visa cancellation should be set aside.
The lesson that can be drawn from this case is that visa rights under a 457 visa are “fragile” and “vulnerable to cancellation”. The holder of a visa places her or himself at peril of losing their right to work in Australia if they breach Condition 8107. It is thus of paramount importance that a visa holder who suffers a loss of employment for causes beyond their control should immediately begin searching for a new sponsoring employer so they do not run afoul of the requirement not to cease work for a period greater than 90 days.
Also, in circumstances where a 457 visa holder does lose their employment due to the fact that the employer has ceased trading, the visa holder must be aware that the change in their employment status will likely come to the attention of the Department.
Thus, the holder of a visa must be vigilant to be aware of their own visa status, must be alive to the possibility that their visa may be cancelled, and, if their search for a new employer extends beyond 90 days, must be prepared to provide persuasive evidence to the Department and (should it become necessary) to the MRT to justify why they should be allowed to remain in Australia to work (having regard to the policy guidance provided in PAM3 concerning the discretionary bases upon which visa cancellation can be avoided).
A link to the MRT's decision (Member Suseela Durvasula) can be found below:
http://www.austlii.edu.au/au/cases/cth/MRTA/2015/150.html
This article was prepared by Michael Arch, Concordia Pacific Migration Lawyers, MARN 1386469, Web: www.concordialaw.com.au, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.
, (02) 8068 8837
Comments
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Thursday, 19 March 2015
The analysis provided in the blog post should provide a starting point. In the case that is discussed, it was clearly in the applicant's favour that she found employment in the same occupation as approved in her original 457 visa. It would clearly be in your client's benefit if he could do likewise and become re-employed as soon as possible. It would also be well to have a look at the guidance in PAM3 concerning visa cancellations and to assess how the evidence in your client's case aligns with that guidance.
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Friday, 27 March 2015This is another case where DIBP exercises the powers under section 116 with scant regard to the individual applicants circumstances. The failure of the statutory scheme to incorporate the caveat of "circumstances beyond the applicants control' has led, at the MRT, to plainly unfair and unjust outcomes with the Applicant being in effect blamed for the employers business failure.
Clients do not seem to realise that they are under the gun for the whole of the 457 visa process. The RMA has no duty to advise beyond the visa grant.
You may wish to consider whether there is any scope to offer what in effect would be a compliance audit regime.
The scope for this may be constrained by very low professional costs and both employer and employee " price sensitivity", which has arisen by RMAs resistance to a proper consideration of what it actually costs in time and effort to do these cases.
i on the other hand prefer to pick up the pieces when things have already gone bad and the Applicant is staring down the barrel of cancellation and an MRT refusal. There is nothing like a near death immigration experience to sharpen the clients focus. -
Tuesday, 28 June 2016The newsletter is very informative.
I was on 457 visa and after working for 2+ years I quit my job as I wanted to study, but due to some family commitment had to rturn to my country. I quit Australia within the 90 days. Now I have applied for a student visa to do Masters. Will the condition 116 applied to my 457 visa cancellation effect my student visa application. -
Tuesday, 28 June 2016
Thank you for your message. Specific inquiries for advice should be directed to help@migrationalliance.com.au, or persons who have general inquiries concerning the topics that are covered on this blog may direct them to me at: concordialaw@optusne.tcom.au.
We cannot give case-specific advice through this blog - it appears that you may have suffered a visa cancellation under section 116, which could conceivably impact the prospects for your student visa application. Under Public Interest Criterion 4013, you may be subject to an "exclusion period" of 3 years if your visa was cancelled under certain sections of section 116 of the Act. -
Saturday, 19 August 2017
Hiya. We're in quite a predicament at the moment. Hubby lost his sponsor last year in October. We found a new sponsor within 90days as per our letter we got from the Department and put a new Nomination in for processing within this time. We never got any replies until Thursday this week saying our 457 visas have now been cancelled and we've been given 7days to reply. This is our last year on our visa which was due to expire end of October 2017. Hubby's old boss verbally changed his title from IT Customer Support Officer to Branch Manager but he still worked in the same capacity and never changed his position within the actual company. Only thing that changed was his so called job title not the actual work itself. He still maintained his position as IT guy for both branches. The boss was forever threatening to take "his visa away from us" and my Hubby was referred to as "his b*tch" in front of other work collegues or customers. We didn't contact the Ombudsman when he left the company as we didn't want to cause any issues so chose to cut our losses and move on quietly yet it turns out our honesty has been used against js and as of Thirsday our visas are now cancelled. We don't know what to do as we cannot go back to our own country as yhere is nothing there for us, we sold and gave up everything to come here to give our children a safe snd stable future. I'm now almost 16weeks pregnant with twins ehich we have told the Department about yet our application to stay has not been given proper considrration as all they can tell us is that my Hubby apparently changed his position (title) and t herefor hasn't complied with our 457 visa rules. He never changed his job requirements it was the boss who stated he was a "branch manager". Please advise what we can do yo try and overturn this ruling as we honestly don't have the funds to move back to Zimbabwe, we are settled but have no idea what happens next. Please help...
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I have a similar case where a 457 holder left his job as a project manager for an electrician due to the fact that the electricians business was slow and he could not afford to pay the visa holder any more. During the 90 period the clients wife made a valid application for a religious worker visa which was refused and is going to the MRT. Two days ago the 457 was cancelled for breach of 8107 under section 116. The 457 holder applied for a BVE to await MRT.
Any suggestions would be appreciated?