1512043 (Migration)

[2016] AATA 3518

1512043 (Migration) [2016] AATA 3518 (16 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SATIYAJEET SATIYAJEET

CASE NUMBER:  1512043

DIBP REFERENCE(S):  BCC2015/354202

MEMBER:Antonio Dronjic

DATE:16 March 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 16 March 2016 at 4:29pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 August 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(g) on the basis that the applicant’s sponsor (PDLF Pty Ltd ) was cancelled and barred for 2 years under s.140M of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. According to the primary decision record provided to the Tribunal by the review applicant, the applicant was granted a subclass 457 Business (Long Stay) visa on 22 November 2013 and was to remain valid until 22 November 2017. The standard business sponsor who nominated the applicant in the most recently approved nomination (approved on 27 June 2013) for the visa was PDLF Pty Ltd. The occupation listed for the applicant in the most recently approved nomination was Baker.

4. According to the primary decision record, PDLF Pty Ltd sponsorship was cancelled by the delegate on 27 June 2013 and the visa applicant was unable to work for the sponsoring employer for a period of more than two years. This was factually incorrect. On page two of the primary decision, the delegate wrote that on 19 September 2014 the delegate made decision under s.140M (1)(a) to cancel and bar the sponsorship for period of two years.

5. The same error was made on page four of the primary decision where the delegate, in considering whether the discretion to cancel should be exercised, wrote that the visa applicant was aware of cancellation of sponsorship since 27 June 2013; considered this to be extended period of time and made finding that no attempt was made by the applicant to regulate his status prior to May 2015.

6. A notice of intention to consider cancellation (‘NOICC’) was e-mailed by the Department to the applicant on 28 July 2015. On 2 August 2015 the applicant provided the response to NOICC informing the DIBP that he has been searching for a new job and has found another company willing to nominate him. He enclosed an acknowledgment of business nomination application made by Starlite Property Solutions Pty Ltd dated 20 July 2015. 

7. The delegate found that no subclass 457 nomination has subsequently been approved in respect of Mr Satiayjeet and proceeded to cancel the visa applicant’s visas on 24 August 2015.

   The Review Application

8. The applicant applied to the Tribunal on 2 September 2015 for review of the delegate’s decision and with his application submitted a copy of the primary decision record and his statement dated 2 September 2015. In his written statement he claims that he was not aware of sponsorship cancellation until July 2015 and that the business nomination application made by Starlite Property Solutions Pty Ltd of 20 July 2015 is still being processed by the DIBP.

9. On 22 September 2015, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 22 December 2015. The applicant was advised that if he does not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.

10. The applicant appeared before the Tribunal on 22 December 2015 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

11. The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the hearing. The Tribunal further explained that the review applicant’s visa was cancelled under s.116 (g) of the Act as the delegate concluded that the ground prescribed in r.2.43 (1)(l)(iv) applied in this case. According to the primary decision record, the applicant’s sponsor, PDLF Pty Ltd, was barred and sponsorship cancelled on 19 September 2014.

12. The Tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made it out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy, as set out in the departmental guidelines.

13. This is the summary of the applicant’s evidence:

14. He came to Australia in December 2008 as a holder of a student visa, subclass 572. He completed several courses in Australia including Certificate III and IV in retail baking. In August 2013 he was granted subclass 485 visa that remained valid until 22 November 2013.

15. In August 2013 he applied for and was granted a subclass 457 visa on 22 November 2013. According to the primary decision record, his 457 visa was to remain valid until 22 November 2017. In December 2013, he moved from Melbourne to Tasmania and commenced his full time employment as a baker at PDLF Pty Ltd. He ceased employment at this business in May 2015 because he received better job offer from Starlite Property Solutions Pty Ltd.

16. He stated that he was not aware that the PDLF Pty Ltd sponsorship was cancelled until July 2015. He reiterated that the delegate was wrong in finding that he was aware of the sponsorship cancellation since June 2013 as at that time he did not have a 457 visa.

17. He confirmed that his 457 visa was cancelled by DIBP on 24 August 2015. He stated that he is currently holding BE with working rights. When questioned, the applicant stated that he currently does not work. I inquired why he is not working for Starlite Property Solutions Pty Ltd if he was granted BVE with working rights and the applicant responded that he believed that he was not allowed to do so until Starlite Property Solutions Pty Ltd business nomination is approved.

    The Tribunal’s Oral Invitation to Comment on or Respond to Information:  

18. In accordance with s.359AA of the Act, the Tribunal informed the review applicant that there was information before the Tribunal that would be the reason or part of a reason for affirming the decision that is under review. The information was that PDLF Pty Ltd sponsorship was cancelled by DIBP on 19 September 2014 and not on 27 June 2013 as stated in the primary decision. The Tribunal further informed the applicant that the decision to cancel and bar PDLF Pty Ltd was subject to merits review before this Tribunal and that on 21 May 2015, the Tribunal, (differently constituted) affirmed the decision under the review.

19. The Tribunal explained why the above information is relevant to the current review application and consequences if the Tribunal relies on the above information. The review applicant confirmed that he understood the information, its relevance to the Tribunal’s decision and consequences of the Tribunal relying on the information.  The Tribunal then invited the applicant to comment on or respond to the information and informed him that he could request additional time to do so.

20. After short consultation with his representative, the applicant conceded that the PDLF Pty Ltd sponsorship was cancelled by DIBP on 19 September 2014 and that the ground for cancellation is made up.

21. I explained that on the evidence before me it appears that the a ground prescribed in r.2.43(1)(l)(iv) of the Migration Regulations 1994 for cancelling the visa applies to the visa holder. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(g) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

22. I explained to the applicant that I will consider matters raised by the applicant as to why the visa should not be cancelled, government policy guidelines, and any other relevant considerations including the purpose of the visa holder’s travel to and stay in Australia, the degree of hardship that may be caused to the applicant and the circumstances in which the ground for cancellation arose.

23. I noted that the purpose of the applicant's stay in Australia had been to work for the sponsor as a Baker and to reside temporarily for that purpose. The sponsorship was cancelled and despite being nominated by the new business sponsor on two occasions, no nomination was approved to date.

24. In his evidence he stated that in May 2015, he ceased his employment with PDLF Pty Ltd because he received better offer from Starlite Property Solutions Pty Ltd. This company has been approved as a standard business sponsor and they lodged their first business nomination application with DIBP in May 2015, nominating the visa applicant for a position of a baker. The nomination application was refused by the DIBP and on 20 July 2015, Starlite Property Solutions Pty Ltd lodged the second business nomination application which was also refused in October 2015 as the delegate was not satisfied that genuine position existed at the sponsoring business.

25. He further stated that the business owner recently came back from India and is in the process of preparing and lodging another business nomination application. The applicant asked me to adjourn making my decision until his prospective employer lodges another business nomination application with the DIBP and the department makes decision on that application. I inquired how the new business nomination will be different from previous two that were refused by the department. He stated that both nominations were refused by the DIBP because of inadequate legal advice received by the company’s migration agent.

26. I explained to the applicant that, if the new business nomination is approved by the department he will be able to lodge an of shore application for subclass 457 visa.

27. On my invitation, the applicant’s representative submitted that the first business nomination was refused on Labour Market testing and the second on non-genuine position. The representative requested additional time to provide documentary evidence of lodgement of the new business nomination application by Starlite Property Solutions Pty Ltd; copy of the employment agreement and statement or reference letter from the prospective employer. I granted the applicant until 12 January 2016 to provide additional documentary evidence.

    Post Hearing Correspondence

28. On 11 January 2016, the applicants’ representative submitted the following documents:

    ·Copy employment agreement between the applicant and Starlite Property Solutions Pty Ltd dated 21 December 2015; and

    ·Copy DIBP acknowledgment of nomination application letter dated 23 December 2015.

29. On 15 March 2016, the applicant’s representative submitted DIBP notification letter and a copy of DIBP decision dated 11 March 2016 approving the nomination application made by Starlite Property Solutions Pty Ltd. The nominated person is the review applicant, his occupation is pastry cook and the review applicant’s annual earnings are set to be $54,000.

30. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

    CONSIDERATION OF CLAIMS AND EVIDENCE

31. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

32. A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(l)(iv) is relevant.

33. Information in the delegate's decision record, which was submitted by the review applicant to the tribunal, indicates that the review applicant's sponsoring employer in the most recently approved nomination for the visa, PDLF Pty Ltd, had its approval as a Standard Business sponsor cancelled on 19 September 2014 under section 140 M (1)(a). The decision to cancel and bar PDLF Pty Ltd was subject to merits review before this Tribunal and on 21 May 2015, the Tribunal, (differently constituted) affirmed the decision under the review.

34. Accordingly, a ground prescribed in r.2.43(1)(l)(iv) of the Migration Regulations 1994 for cancelling the visa applies to the visa holder.

35. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

36. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

37. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2]

    [1]     See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

    [2]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209 Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 (at [55]

38. Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant. It has also had regard to the oral evidence from the applicant at the hearing.

    The purpose of the visa holder’s travel to and stay in Australia

39. The subclass 457 visa is for skilled workers from outside Australia who have been sponsored and nominated by a business to work in Australia on a temporary basis.

40. The Tribunal finds that the purpose of the review applicant’s stay in Australia was to work as a pastry cook on a temporary basis. The review applicant’s visa was cancelled for reasons beyond his control and the cancellation is therefore an unfortunate one.

41. I accept that the applicant did everything he could to find another sponsoring employer. Even before his visa was cancelled, he signed new employment agreement with a different employer who had to apply for approval of sponsorship and nomination applications. Eventually, the nomination application made by made by Starlite Property Solutions Pty Ltd was approved by DIBP on 11 March 2016.

42. As explained at the hearing, the purpose of granting a subclass 457 is to enable a business to sponsor a skilled worker if they cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. The Subclass 457 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation. The Tribunal finds that this purpose was not lost as the applicant has found a new sponsor at the time of decision. I give significant weight to this consideration.

    Past and present conduct of the visa holder towards the department

43. I accept that the applicant has not previously breached visa conditions and has been co-operative with the Department.

    Degree of hardship that may be caused; whether there would be consequential cancellations under s.140

44. There is no evidence before the Tribunal regarding this matter.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate, or circumstances factors

45. This matter is not relevant to the Tribunal’s consideration as the visa was not cancelled on this basis.

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

46. In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).  

47. There is little in the evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements.

    The impact on any victims of family violence

48. There is no evidence before the Tribunal regarding this matter.

49. Having regard to the findings above and the circumstances of the case as a whole, the Tribunal concludes that the visa should not be cancelled and that not cancelling the applicant’s visa is the correct and preferable decision.

    DECISION

50. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Antonio Dronjic
    Member