Freelancing On A 457 Visa: An Update (2016)
Last time we talked about this, the short answer was "No you can't freelance" (the longer explanation and solutions can be found here). However a recent case tackled this very idea and the 457 visa narrowly escaped having his visa cancelled.
Why the sudden reversal? Under what circumstances can freelancing on a 457 visa be legal according to this case? Let's go through the judgement and see how it can help you.
To recap, the 457 visa is a temporary short stay business visa that grants a person the right to live and work in Australia for up to 4 years. The primary condition on this visa is condition 8107 which states that the applicant can only work for their sponsoring employer. A breach of any conditions of a visa is cause for cancellation of the visa. Therefore, a 457 visa holder can only have one job and one job alone: the one that he/she is nominated for and for the employer that sponsored him/her.
In this particular test case, a man was sponsored a Motor Mechanic but had taken on part-time work as a taxi driver. During one of his shifts as a taxi driver, he was stopped by the Taxi Services Commission and was issued with a fine for not complying with the conditions of his accreditation. Department of Immigration officers were also present at the time an after a period of interviews issued the man with a Notice of Intention to Consider Cancellation.
The case was brought to the Tribunal.
The applicant did not contest that he breached his visa conditions as he had in fact been working on and off part-time as a taxi driver since the grant of his visa. The applicant did acknowledge that he needed to remain with the sponsoring employer but did not appreciate that he was required to only work for that employer.
Basically the applicant's defence was 2 folds: he did not fully understand the requirements of this visa and that there are extenuating circumstances that should be considered before the cancellation of his visa.
Although there are no matters that are required to be considered before cancellation under the Act or Regulations, the Tribunal, in considering whether to exercise its discretion in this case, took the step to consider the relevant circumstances that are identified in the Department's Procedures Advice Manual PAM3 'General visa cancellation powers'. The PAM3 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
The purpose of the visa holder’s travel to and stay in Australia;
The Tribunal found that the purpose of the applicant's visa was to work as a Motor Mechanic at the company of his sponsoring employer. The employer had a need for a skilled worker and the applicant had the requisite skills and qualifications to fill this need. The applicant and sponsoring employer also submitted evidence that the working relationship was a continuing one and would continue in the future if the visa cancellation decision was set aside. Further to that the employer "highly values the applicant's kills, work capacity and honesty".
Despite the above evidence, the Tribunal still gave some weight to the fact that there was a breach of a condition that is fundamental to the visa and the 457 temporary business program.
The reason for and extent of the breach
The applicant's reason for the breach was that he was not fully aware of the conditions attached to the 457 visa. The Tribunal was not so forgiving of this ignorance as the Tribunal took into account the multitude of sources of information that should have made the applicant aware of his visa conditions, including but not limited to: the application form, the visa grant notification, the Department's website and so on.
The second reason that the applicant put forward was that the applicant's father was seriously ill and was unable to work. The applicant needed the part-time job as a taxi driver in order to provide money for his father's illness. The Tribunal, in what seems like a surprising move, gave considerable weight to this reason and characterised it as a 'circumstance that was beyond the control of the visa holder'.
The degree of hardship that may be caused to the visa holder and any family members
Because of his father's illness and the applicant being the only child, the applicant had become the sole earner of his family. The applicant incurred significant debt during the 4 months that his visa was cancelled (until his work rights were restored) as he continued to support his family in India. The applicant said that there was no way that he could earn enough in India to pay his father's medical bills and to repay the debt he incurred if his visa was cancelled.
The Tribunal accepted that there was significant financial pressures on the applicant and that there would be significant hardship to the applicant and his family if he were to leave Australia. As such the Tribunal gave significant weight to this consideration.
The visa holder’s past and present behaviour towards the Department
In the applicant's favour, he had not breached any other visa conditions and had been very cooperative with the Department and the Tribunal.
Finally, the evidence from the employer that he would be extremely difficult to replace assisted the applicant's case. The employer told the Tribunal that he was about to open another business and that his business would suffer if the applicant had to leave. The Tribunal didn't accept that the applicant was irreplaceable but did accept that there would be significant hardship on the employer if he were to lose the applicant's skills.
The visa cancellation was set aside.
What we did learn from this case?
- Ignorance of the law is no defence - you can't claim to not understand your visa conditions when there are many steps along the way that should have made you aware of them. And if you do claim that, no Tribunal will accept it.
- Taking responsibility for the breach - The applicant had accepted that he made a stupid mistake, apologised for it and provided evidence that the breach was not continuing.
- Significant financial hardship that is beyond your control - considerable weight was given to this factor and the Tribunal accepted that there was significant financial pressures that led to his breach and that there would be significant hardship on the applicant and his family if he was to be sent back to India.
- Evidence from the employer - the employer highly valued the applicant's skills and the employment relationship was ongoing. The Tribunal accepted that the employer would suffer hardship if the applicant were to leave.
All in all, this case is interesting because it highlights the Tribunal's approach that breaching a condition that is fundamental to your visa may only give rise to grounds for cancellation and that there can be extenuating circumstances that should be considered before cancelling a visa.
Does this mean that everyone should work as Uber drivers in order to earn more money? No.
What this case means is that first and foremost, a breach of a condition that is fundamental to your visa is still the gravest of breaches and will not be taken lightly. However, there are circumstances outside your control that the Tribunal will consider when reviewing a decision to cancel a visa.
If you're in doubt about your particular circumstances, we encourage you to talk to us, seek a legal opinion before it's too late. We still strongly advise that you abide by the conditions on your visa and do not take this case as a free pass to break all the rules.
Remember, what has worked for others, may not work for you. Get a professional opinion before you do something that could jeopardise your future in Australia.