I have been asked to write this article to inform holders of Subclass 457 visas currently in Australia of their legal rights in a time of financial uncertainty and retrenchment.
I postponed the submission of this article until after an awaited announcement by the Department of Immigration and Citizenship (DIAC) which was made on 27 February 2009. DIAC released a policy, effective from 24 February 2009, directing case officers deciding Subclass 457 visa applications to carefully consider the prevailing economic conditions both globally and locally and satisfy themselves that there is a benefit to Australia (as opposed to a benefit to the business) before granting Subclass 457 visas. The four elements of benefit to Australia's requirements have remained as:
The creation of maintenance of employment for Australian citizens/PR's.
Expansion of Australian trade in goods or services.
The improvement of Australian business links with the international markets.
Competitiveness within sectors of the Australian economy.
DIAC officers must further be satisfied that a Subclass 457 visa applicant has a demonstrably higher level of skill than can be sourced from within Australia. Employers may accordingly have to carry out labour market testing to satisfy this requirement, effectively reverting back to the position held by DIMA (Department of Immigration and Multicultural Affairs) many years ago.
Decision makers must consider the level of remuneration and be satisfied that it reflects the average remuneration for the relevant occupation grouping. Until recently these applications were approved even though the nominated position offered the bare minimum gazetted salary for the program. I believe this shift in policy is relevant, as applicants who plan to apply for Subclass 457 visas from now on may find in significantly more difficult to be granted a new visa than was the case earlier.
No Mandatory Cancellation
Judging from information received from various sources, it is clear that there is a misconception under Subclass 457 visa holders that such a visa will be subject to mandatory cancellation once an employer informs DIAC of the termination of the visa holder's employment. The rumour further has it that this will automatically happen 28 days after such notification. This is simply not accurate
and it is essential to be aware of the correct position and your legal rights as a substantive visa holder in relation to potential cancellation of such a visa.
If (as a holder of a Subclass 457 visa), you are in the unfortunate position that your role has been terminated, or is about to be made redundant, you should consider the following: The primary visa holder has a mandatory Condition 8107 imposed which requires the full time employment of such a visa holder with a sponsoring employer. The primary visa holder will be in breach of that condition
from the date that employment ceases. DIAC, once it becomes aware of such a termination, must at some point make an administrative decision (after following prescriptive legal requirements) as to whether such a visa should in fact be cancelled, or not. There is no provision for automatic cancellation of Subclass 457 visas in the Migration Act.
What happens now?
Although DIAC may only become aware of the fact that a visa holder has ceased employment, it is appropriate to notify DIAC at your earliest opportunity that there has been a change in your personal circumstances, to note that you position has been terminated (see below at mitigating factors). What I have noticed in practice over the last number of years is that DIAC has taken a very relaxed approach towards Subclass 457 visa holders who have lost their jobs. DIAC had typically given such visa holders significant periods of grace in which time a visa holder has the opportunity to seek new employment and sponsorship with a new/alternative employer. There is no legal entitlement for DIAC to afford such leniency and at some point DIAC may well change their view. A case officer will at some point have to commence the process of potential visa cancellation under Section 116 of the Migration Act.
Basis for cancellation
The basis for cancellation under Section 116 of the Migration Act would be the breach of a visa condition, in this instance Condition 8107. The formal process of cancellation that must be followed in order for such a cancellation to be a lawful cancellation, is to issue a notice of intention to cancel a visa, with affords the visa holder and opportunity to provide information to DIAC as to why the visa
should not be cancelled. It is vital to note that cancellation under Section 116 (i) (b) is a discretionary cancellation as opposed to a mandatory cancellation, which in some instances are prescribed.
Considerations why not cancel
There are various relevant and mitigating factors that must be considered by a delegate of the Minister in making the administrative decision whether to in fact cancel a Subclass 457 visa, or not. Some factors that must be taken into consideration are:
APPROPRIATE GROUNDS FOR CANCELLATION
Assuming the ground for cancellation is made out, primary consideration in deciding whether to exercise the discretion to cancel a visa under s116 should be given to the:
purpose of the visa holder's travel and stay in Australia
extent of non-compliance with any condition subject to which the visa was granted
degree of hardship which may be caused to the visa holder and any family members
circumstance in which the ground for cancellation arose
person's behaviour in relation to the department, now and on previous occasions etc.
There may be grounds for not pursuing cancellation if mitigating factors exist. Such factors might include:
the severity of the breach or omission leading to visa cancellation
the visa holder's record of compliance with immigration laws
eligibility for a more appropriate type of visa
eligibility for another 457 visa with a new approved sponsor etc.
It is important to note that the prescribed formal requirements referred to in Section 119 to 123 must be followed for a cancellation to be lawful and accordingly valid. It is essential that your response to DIAC (requesting that the discretion whether or not to cancel your visa should be exercised in your favour) is a substantial response and preferably refers to legal requirements and precedents to ensure that you have the best possible opportunity for your visa (given your particular circumstances) not to be cancelled. Obviously, each case will be based on its own merits and factual circumstances. You may wish to seek legal advice in preparing an appropriate response.
It is important to note that notification and a response to a notice of intention to cancel the visa issued under Section 119 can also be provided orally and DIAC under such circumstances may provide a ‘reasonable time' for such a response. There is precedent that as short as five minutes may be reasonable under the circumstances, which does not leave a visa holder with much time to gather his/hers thoughts and provide a substantial legal response. A visa holder may, therefore, consider legal representation authorizing an agent for all correspondence and communication purposes with DIAC. In such an instance, DIAC will be obligated to approach your legal representative at first instance and make contact with such a person rather than contact the visa holder directly. This may afford the visa holder crucial additional time in order to compile and appropriate response to a notice of intention to cancel.
Effect of cancellation
Once the delegate has taken into account all the relevant considerations he/she must then make a decision on the facts whether to proceed with the cancellation or not. If a decision is made not to cancel, then the visa holders will remain in Australia on their substantive visas until such a visa is either superseded, cancelled (on different grounds) or lapse (expire when visa runs out). If the delegate decides to cancel a visa under Section 116, the visa holder has a right to seek merits review of such a decision. In these cases, the Migration Review Tribunal is the appropriate forum with in which to lodge an application for review with in seven working days from receipt of such a notice by fax or hand and 14 working days if a notice were to be received by post.
Once a visa has been cancelled, the previous holder of such a visa then becomes an unlawful non-resident in Australia. Please note that any bridging visas A, B or C held by such a person, who may be awaiting the outcome of a pending application for permanent residence (or other onshore applications) will automatically be cancelled under Section 82 of the Migration Act, making the previous visa holder an unlawful non-resident. Under Section 189 an unlawful non-resident in Australia is subject to mandatory detention and removal from Australia. It is therefore essential for a person under these circumstances to apply for a Bridging visa E to re-gain lawful residence in Australia at his/hers earliest convenience. Such a Bridging visa E may be applied for on the basis of an application for merits review to the MRT or on the basis of making departure arrangements from Australia.
One should consider seeking legal advice as to whether there is merit in reviewing a decision by DIAC to cancel a visa. It is essential that you exert your legal rights to ensure that a correct administrative decision has been made. The MRT will consider whether the delegate has made a correct decision, given the facts of the particular case and will take into account further legal submissions made either before, at or after a hearing that will be scheduled to give the review applicant an opportunity to provide additional information in relation to the review.
Review applicants can therefore remain in Australia on Bridging visas E, (most likely with work rights) until the MRT has made a decision on the review application. If the MRT affirms the decision by DIAC, the applicant may then consider seeking a judicial review of such a decision, if there were to be jurisdictional error in the tribunal decision. A further alternative may be to seek intervention from the Minister for Immigration in his personal capacity under Section 351 of the Migration Act. Such access is only possible once a negative MRT decision has been recorded.
If the MRT remits the application (finding that the visa should not have been cancelled), the visa will be reinstated and will cease to be in effect either when superseded, cancelled (on another ground) or lapse.
It is important for visa holders to ensure that the correct procedures are followed and that lawful decisions in relation to their immigration matters are in fact made by the authorities. It is a good investment to seek appropriate legal advice in relation to one's position, especially in the area of immigration law. An individual or family has most likely gone to significant expense and inconvenience to leave their home country to settle and/or work in Australia and repatriating sooner than planned may be financially disastrous.
I trust that the above guidelines may give visa holders a better understanding of their position in the event of a potential retrenchment, hopefully providing a more positive perspective. Please contact our office if you have any further questions in relation to this article. I am looking forward to hearing from you on: (02) .8080.3840 or email: email@example.com.
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About the author
Dr Etienne Hugo is a South African born lawyer based in Australia. He is the legal practitioner director of Teleo Immigration, a leading Sydney based law firm specializing in Australian immigration law. He is a registered migration agent (Migration Agents Registration Number 0004435) and is admitted as an advocate in South Africa and as a solicitor in New South Wales/ High Court of Australia. He is a Law Society of New South Wales accredited specialist in immigration law. He is a lecturer in the Graduate Certificate of Migration Law and Practice with the Australian National University and ember of the Migration Institute of Australia.