Australian Immigration Daily News

We’ve all heard the expression: “There is nothing new under the sun” (in case you are really curious, this expression comes from the Bible, specifically “Ecclesiastes”).

I would reckon that most RMAs would question from their work experience just how accurate that expression really is! I suggest that it would be the more typical experience of RMAs that the opposite is really true, that instead of there being nothing new under the sun, in reality there is almost always something new under the sun – practically every day!  And (if you can bring yourself) to read the case reports on Austlii, you will see that it is really true – different, unusual, surprising and one might go so far as to say “wacky” situations come up in the Federal courts all the time!

The case that is the subject of today’s article – Patel & Anor v Minister for Immigration & Anor (2015) FCCA 28293 – involves an issue that I haven’t come across before:  Can the fraudulent conduct of the sponsor of a 457 visa holder result in the cancellation of the visa?  The answer to this question, provided by the Court in the Patel case is: “Yes it can!”

Before we look at the facts, let’s review the Department’s visa cancellation powers under the Act.

The legal authority to cancel a visa derives from section 116 of the Act. 

While section 116 has been amended since the 457 visa that was at issue in Patel was cancelled, the same provisions that were relied upon by the Department for the cancellation have been carried forward to the version of the legislation that is in force today (29 October 2015). 

Section 116(1) (g) of the Act provides that the Minister may cancel a visa in circumstances where: “a prescribed (meaning “listed in the Regulations) ground for cancelling a visa applies to the holder”.

Relevantly to the Patel case, regulation 2.43(l) (o) provides that a visa may be cancelled when “the Minister reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person”.  What is worthy of attention and emphasis is that fraudulent conduct that may lead to the cancellation of a visa is not limited to conduct by the visa holder.  The fraud may be carried out by anyone – in the words of the legislation “any person”. 

Also relevant to this case was regulation 2.43(l)(iv), which provides that a 457 visa may also be cancelled where the sponsor’s approval as a standard business sponsor has been cancelled or barred under section 140M of the Act.

So, turning now to the facts: What did then happen in Patel that led to the cancellation of the 457 visa?

The story was that the visa holder originally arrived in Australia in 2008 as the holder of a student visa. She was granted the 457 visa in January 2013, on the basis that she would be working in full-time employment at a hairdressing salon owned by her sponsor.at an annual wage of $51,500. However, in January 2014, the visa holder’s sponsor was barred, and its approval as a standard business sponsor was cancelled, because the sponsor had breached regulation 2.90 by providing false and misleading information to the Department.

Also in January 2014, the Department emailed the visa holder a Notice of Intention to Consider Cancellation (“NOICC”) of her 457 visa. This NOICC stated that in August 2013, the sponsor had been approached to facilitate sponsorships which were not, in reality, intended to fill legitimate skills shortages.  The sponsor had also claimed that sponsored persons had each paid him $22,500 and that money had been used to make fortnightly payments into the bank accounts of sponsored 457 visa holders.  The sponsor had further reported to the Department that all of the hairdressers in his employ were paid “on commission”, and that he could not, and would not, pay them $51,500 a year. 

Although the 457 visa holder sent a Statutory Declaration to the Department which stated that she was not aware of any fraudulent behaviour by her sponsor, and that she had not given the sponsor to make fraudulent deposits into her account, the Departmental officer accepted the information that had been provided by the sponsor and proceeded to cancel the 457 visa.

The visa holder sought merits review of the Department’s decision to cancel her visa, but was unsuccessful before the Tribunal. The Tribunal found that there were grounds to support a finding that the 457 visa had been obtained as a result of fraudulent conduct by the sponsor, who had admitted that the sponsorships were not genuine.

The visa holder argued before the Federal Circuit Court that the Tribunal should not have accepted the evidence of her former employer in preference to her own evidence (that the sponsorship was in fact genuine). 

However, this was an argument that did not have any chance of being successful. As the Federal Circuit Court observed, the task of making findings of fact and decisions concerning the credibility of witnesses is the exclusive domain of the Tribunal, and such findings will not be overturned by the Court.

So what is the lesson of this case? Whenever there is proof that a 457 visa has been obtained by fraudulent means – even if the fraud has been committed by the sponsor and not by the visa holder – then the visa is at great risk of cancellation.  One might also observe that fraudulent schemes to obtain visas are the equivalent of “playing with fire”.  The truth seemingly always has a way of finding its way to the surface. And if credible evidence comes to the attention of the Department that a 457 visa has been procured through fraud, the visa holder will be at great risk of losing her/his entitlement to remain in Australia.

What do you think? Without regard to whether the findings of the Department and Tribunal were correct in this particular case, do you agree that a 457 visa should be subject to cancellation even in circumstances where the visa holder is "entirely innocent" and did not participate in any way in a fraud that led to the grant of a visa? That is the situation under the law as it now stands - in your opinion is that a "fair and just result"?

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837