A lot has been written lately surrounding the visa cancellation and deportation of Chris Bailey, director and founder of Disrupt, a start-up which offers the ability to custom design your own sporting equipment. Unfortunately, this case provides us with a clear example that it is never acceptable to provide misleading or incorrect information to the Department of Immigration and Border Protection (DIBP) when making a visa application.
Reported Facts
The facts of the case seem to suggest that Mr Bailey, a holder of his first Working Holiday visa (WHV) at the time, incorrectly stated that he had completed 3 months of ‘regional’ and ‘specific’ work when applying for his second WHV. After having had his second year visa approved, Mr Bailey then traveled to the United States and upon his return was questioned by Border Force officials with the eventual cancellation of his WHV after Mr Bailey’s previous ‘incorrect information’ had been discovered.
The Law
Accordingly, provisions exist within the Migration Act which empowers delegates to cancel visas if it is believed incorrect information or bogus documents have been provided as part of a visa application, which seems to have been the case in Mr Bailey’s situation. So to clarify, Mr Bailey did not have his visa cancelled because he did not complete 3 months of fruit-picking. His visa was cancelled because he knowingly and intentionally misled the DIBP when making his second WHV visa application which was grounds for cancellation as stated in law. Moreover, the 3 month regional (or ‘fruit-picking’) work is optional and is not a visa condition or requirement imposed on WHV holders. However, an applicant must genuinely complete this regional work if they want a second year WHV.
Other Issues Surrounding Start-Ups and Sponsoring Workers
This case has seemed to cause uncertainty about the ability of new start-up businesses in sponsoring skilled workers. Firstly, what readers need to understand is that sponsoring a 457 worker is generally a 3 stage process. First, the business must apply to become an approved 457 sponsor. Secondly, the approved business must submit a 457 Nomination where the ‘position’ and ‘job’ are assessed. Lastly, the employee is assessed against the Visa criteria which requires they are qualified or experienced in the occupation/field they have been nominated in. For more information on the 457 process please see our blog here.
To be clear, there are no restrictions on start-ups sponsoring workers under the Subclass 457 visa. We would even go so far as to argue it is easier for start-up businesses to become approved 457 sponsors due to relaxed training benchmarks requirements (as explained in our other blog here). However, where start-up businesses may run into trouble is at the Nomination stage (2nd stage) in proving there is a ‘genuine need’ for the position being nominated. More specifically to Mr Bailey’s case, in late 2015 the DIBP changed their policy and approach to ‘self-sponsorship’ essentially closing the door on directors sponsoring themselves as employees of their business under the 457 visa. In our humble opinion, it is at this stage that Mr Bailey and Disrupt may have run into problems when going through the 457 process, not necessarily in getting the business approved to sponsor in the first place.
What Are the Solutions?
The issue now is that Mr Bailey has had a visa cancelled under the Migration Act which imposes a ‘3 year bar’ on applying for most temporary visas. In saying this however, this 3 year bar is ‘waive-able’ if Mr Bailey can demonstrate there are compelling and compassionate circumstances which affect the interests of Australia or the interests of an Australian. Given the media coverage and obvious high profile nature of Disrupts business and the assumption that Disrupt currently does and will continue to have the ability to offer paid employment to many Australians, we would respectfully submit that the door on Mr Bailey being allowed back into Australia has not been completely closed and that he still has a paddle up that creek.
Moral of the Story?
Don’t lie to the DIBP. Ever. Even directors of successful and high profile businesses are not immune to the laws governing visa compliance and the serious long term consequences.
If you have had a visa cancelled or have been found in breach of your visa conditions, contact our migration agents today by giving us a call on 1300 MIGR8TE (644 788) or send your questions to enquiry@salvomigration.com.au | http://ift.tt/1pPjMzd;
Reported Facts
The facts of the case seem to suggest that Mr Bailey, a holder of his first Working Holiday visa (WHV) at the time, incorrectly stated that he had completed 3 months of ‘regional’ and ‘specific’ work when applying for his second WHV. After having had his second year visa approved, Mr Bailey then traveled to the United States and upon his return was questioned by Border Force officials with the eventual cancellation of his WHV after Mr Bailey’s previous ‘incorrect information’ had been discovered.
The Law
Accordingly, provisions exist within the Migration Act which empowers delegates to cancel visas if it is believed incorrect information or bogus documents have been provided as part of a visa application, which seems to have been the case in Mr Bailey’s situation. So to clarify, Mr Bailey did not have his visa cancelled because he did not complete 3 months of fruit-picking. His visa was cancelled because he knowingly and intentionally misled the DIBP when making his second WHV visa application which was grounds for cancellation as stated in law. Moreover, the 3 month regional (or ‘fruit-picking’) work is optional and is not a visa condition or requirement imposed on WHV holders. However, an applicant must genuinely complete this regional work if they want a second year WHV.
Other Issues Surrounding Start-Ups and Sponsoring Workers
This case has seemed to cause uncertainty about the ability of new start-up businesses in sponsoring skilled workers. Firstly, what readers need to understand is that sponsoring a 457 worker is generally a 3 stage process. First, the business must apply to become an approved 457 sponsor. Secondly, the approved business must submit a 457 Nomination where the ‘position’ and ‘job’ are assessed. Lastly, the employee is assessed against the Visa criteria which requires they are qualified or experienced in the occupation/field they have been nominated in. For more information on the 457 process please see our blog here.
To be clear, there are no restrictions on start-ups sponsoring workers under the Subclass 457 visa. We would even go so far as to argue it is easier for start-up businesses to become approved 457 sponsors due to relaxed training benchmarks requirements (as explained in our other blog here). However, where start-up businesses may run into trouble is at the Nomination stage (2nd stage) in proving there is a ‘genuine need’ for the position being nominated. More specifically to Mr Bailey’s case, in late 2015 the DIBP changed their policy and approach to ‘self-sponsorship’ essentially closing the door on directors sponsoring themselves as employees of their business under the 457 visa. In our humble opinion, it is at this stage that Mr Bailey and Disrupt may have run into problems when going through the 457 process, not necessarily in getting the business approved to sponsor in the first place.
What Are the Solutions?
The issue now is that Mr Bailey has had a visa cancelled under the Migration Act which imposes a ‘3 year bar’ on applying for most temporary visas. In saying this however, this 3 year bar is ‘waive-able’ if Mr Bailey can demonstrate there are compelling and compassionate circumstances which affect the interests of Australia or the interests of an Australian. Given the media coverage and obvious high profile nature of Disrupts business and the assumption that Disrupt currently does and will continue to have the ability to offer paid employment to many Australians, we would respectfully submit that the door on Mr Bailey being allowed back into Australia has not been completely closed and that he still has a paddle up that creek.
Moral of the Story?
Don’t lie to the DIBP. Ever. Even directors of successful and high profile businesses are not immune to the laws governing visa compliance and the serious long term consequences.
If you have had a visa cancelled or have been found in breach of your visa conditions, contact our migration agents today by giving us a call on 1300 MIGR8TE (644 788) or send your questions to enquiry@salvomigration.com.au | http://ift.tt/1pPjMzd;
via Demystifying the Facts Surrounding the Deportation of Chris Bailey
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