Australian Immigration Daily News

Imagine that you are your desk one day.  The phone rings, and the person on the other end of the line says: 

“Hello! Can you help me? I’m here in Australia on a 457 visa. I was working a second job to support my family back in India. I didn’t realize I couldn’t do that! The Department has cancelled my visa!! Is there anything you can do for me?” 

The good news, to paraphrase the slogan from President Obama’s campaign in 2008, is “Yes you can!” Or, if you prefer the other end of the political spectrum in America, as former Vice –Presidential candidate and reality TV star Sarah Palin would say: “You betcha!”. 

A decision from the AAT that came down at the beginning of this month – 1510557 (Migration) (2016) AATA 3160 (1 February 2160) – provides guidance about the strategy that you could consider to try to get the visa cancellation set aside. 

The facts of the case were that the visa holder had originally come to Australia from India on a student visa. He completed courses in automotive mechanics, and worked part-time while pursuing his studies.  He was subsequently sponsored for a 457 visa as a motor mechanic by the same employer for whom he had worked while still a student.

The problem for the visa holder was that his visa was subject to Condition 8107.  This condition contains a provision which specifies that the visa holder “must work only in the occupation listed in the most recently approved nomination for the holder”.

What happened was that the visa holder was “intercepted” by the Victorian Taxi Services Commission while he was driving a taxi. He was issued an infringement notice for failing to comply with the conditions of his accreditation as a taxi driver. Apparently, the Taxi Services Commission also reported the visa holder to the Department of Immigration.  The Department then proceeded to cancel his 457 visa due to his failure to comply with Condition 8107. He then sought review of the cancellation decision before the AAT.

So, considering the fact that the visa holder had unarguably breached Condition 8017, was his 457 visa “dead on arrival”?

The good news for this visa holder was: “No, it wasn’t!”  The AAT saw fit on the specific facts of the case to set aside the visa cancellation decision.

Since neither the Act nor the Regulations lists the matters that are to be taken into account in relation to the exercise of discretion whether to cancel a visa, the AAT had regard to the Department’s Procedures Advice Manual.  The PAM states that the following matters should be considered:

• The purpose of the visa holder’s travel to and stay in Australia;
• The reason for and extent of the breach;
• The degree of hardship that may be caused to the visa holder and any family members;
• The visa holder’s past and present behaviour toward the Department;
• Other matters

So, what was the evidence in this case that enabled the visa holder to preserve his 457 visa?

First, the Tribunal found that the purpose of the visa holder’s stay in Australia was “to enable a business to sponsor a skilled worker if they cannot find an appropriately skilled Australian citizen or permanent resident” to fill the role.  In this regard, the Tribunal considered that the employment relationship between the visa holder and his nominating employer was continuing, and would continue in the future if the visa cancellation were set aside.  It was also helpful to the visa holder that his employer gave evidence before the Tribunal that the employer highly valued the visa holder’s “skills, work capacity and honesty”.

Second, in regard to the “reasons for and extent of the breach”, the Tribunal did not assign very much weight to the visa holder’s claim that he was “not aware” on the restriction imposed by Condition 8107 which prohibited from doing any work other than for his sponsoring employer.

It had been the visa holder’s claim that he had not read his visa grant notice thoroughly, and thus did not become aware of Condition 8107. The Tribunal member took the view that there was information both on the visa grant notice and on the Department’s Website that should have alerted the visa holder to the condition.

Working in the visa holder’s favour was that he had stopped working as a taxi driver, candidly admitted to the Tribunal that he had been “stupid” not to properly understand the conditions of his visa, and had apologized for committing the breach.

Also working in the visa holder’s favour was evidence that the reason he had breached the condition of his visa was that he needed to earn extra money to support his family in India. There was evidence that the visa holder’s father had become seriously ill after the visa holder had come to Australia,  that as a consequence the father was not able to work, and that the visa holder had sent thousands of dollars back to India to support his parents. 

The Tribunal assigned significant weight to these circumstances.  It observed that the guidelines in PAM provide that as a general rule, a visa should not be cancelled if the grounds for the cancellation are beyond the visa holder’s control.  The Tribunal was satisfied that the circumstances that led to the breach of the visa cancellation – his father’s illness and his parent’s resulting financial difficulties – were beyond the visa holder’s control “to a significant degree” (I might observe that it appears that these circumstances were “totally beyond” the visa holder’s control).

Also supporting the visa holder’s case was that cancellation of the visa would cause significant hardship to the visa holder’s family, as it would lose the financial support that he was providing to them through the wages he was earning in Australia.

Finally, there was further evidence from the visa holder’s employing sponsor that helped the visa holder’s cause.  The employer told the Tribunal that he was about to open another business, and that his business would suffer if the visa holder were forced to leave his employ due to the visa cancellation. Although the Tribunal commented that it was not satisfied that the employer would not be able to replace the visa holder with another mechanic, it did accept that the loss of the visa holder’s skills would “cause a significant degree of hardship to the employer”.

So, what are the lessons of this case:  One: claiming that one did not know about conditions in one’s visa is very unlikely to get you very far. Two: showing that one accepts responsibility for breaching a condition, apologizing for the breach, and giving evidence that the breach is no longer ongoing will help. Three: showing that overseas family members who are receiving essential financial support as a result of the visa holder’s employment on a 457 visa will definitely help. Four: likewise, showing that the employment relationship with the sponsoring employer is ongoing, and that the employer will suffer hardship if the 457 visa holder can no longer work for the employer will also be helpful.

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