1609189 (Migration) - [2016] AATA 4263

1609189 (Migration) [2016] AATA 4263 (14 August 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Ajay Kumar
Mrs Sandeep Kaur
Miss Ekam Guleria
CASE NUMBER:  1609189
DIBP REFERENCE(S):  BCC2016/1704029
MEMBER:Katie Malyon
DATE:14 August 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 14 August 2016 at 12:59pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made 15 June 2016 by a delegate of the Minister for Immigration to cancel the Subclass 457 (Temporary Work (Skilled)) visa (Subclass 457 visa) of Mr Ajay Kumar under s.116 of the Migration Act 1958 (the Act). Relevant extracts from the Act and the Migration Regulations 1994 (the Regulations) are set out in the Annexures to this decision.
The delegate cancelled Mr Kumar’s visa under s.116(b) of the Act on the basis that he did not comply with condition 8107 that was imposed on his Subclass 457 visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to Mr Kumar. His family members’ visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of Mr Kumar’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.
Mr Kumar appeared before the Tribunal on 5 August 2016 to give evidence and present arguments. Oral evidence was also taken from Mr Kumar’s wife and Ms Kiran Kaur, a former work colleague of Mr Kumar. The applicants were represented in relation to the review by their registered migration agent, who also attended the hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel Mr Kumar’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Mr Kumar’s Subclass 457 visa was granted on 11 June 2013 for a period of 4 years on the basis of an approved nomination in the occupation of Cook with his sponsor Gurpreet Batra Pty Ltd (Gurpreet).
The Department was informed that Gurpreet went into liquidation and was no longer operating effective 4 February 2016. In the circumstances, the Department formed the opinion that Mr Kumar ceased to be employed with Gurpreet effective 4 February 2016.
On 2 June…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1609189 (Migration)

Details

AGLC: 1609189 (Migration) [2016] AATA 4263
Case: [2016] AATA 4263
Decision Date: 14 August 2016

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the decision to cancel Mr Kumar’s Subclass 457 visa. Mr Kumar’s visa was granted on the basis of a nomination by Gurpreet Batra Pty Ltd, but this sponsorship ceased when the company went into liquidation. The Department of Immigration formed the opinion that Mr Kumar had breached visa condition 8107 by exceeding the 90-day period allowed for ceasing employment with his sponsor without securing new employment.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 existed, specifically whether Mr Kumar had complied with visa condition 8107. This condition, applicable to Subclass 457 visas granted under clause 457.223(4) of Schedule 2 of the Regulations, mandates that the visa holder work only in the nominated occupation and for the sponsoring employer or an associated entity, and that any cessation of employment must not exceed 90 consecutive days. The Tribunal also had to consider whether to exercise its discretion to cancel the visa, even if the ground for cancellation was established.

The Tribunal found that the ground for cancellation under section 116(1)(b) did exist, as Mr Kumar had ceased employment with his original sponsor and the 90-day period had passed. However, the cancellation of a visa under this section is not mandatory. The Tribunal then considered its discretion, having regard to relevant circumstances including government policy and the specific facts of Mr Kumar’s case. The Tribunal noted Mr Kumar’s extensive experience as a Cook, his pending nomination by a new approved sponsor, Lyontz Enterprise Pty Ltd, and the genuine need for a Cook in the remote location of Yellowdine, Western Australia. The Tribunal accepted that Lyontz had made genuine efforts to fill the position and that finding suitable staff for such locations was difficult.

Ultimately, the Tribunal concluded that the evidence favouring not cancelling Mr Kumar’s visa outweighed the evidence favouring cancellation. Therefore, the Tribunal set aside the decision under review and substituted a decision not to cancel Mr Kumar’s Subclass 457 visa. The Tribunal noted it had no jurisdiction concerning other applicants.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel Mr Kumar’s visa should be set aside.CONSIDERATION OF CLAIMS AND EVIDENCE Mr Kumar’s Subclass 457 visa was granted on 11 June 2013 for a period of 4 years on the basis of an approved nomination in the occupation of Cook with his sponsor Gurpreet Batra Pty Ltd (Gurpreet). The Department was informed that Gurpreet went into liquidation and was no longer operating effective 4 February 2016. In the circumstances, the Department formed the opinion that Mr Kumar ceased to be employed with Gurpreet effective 4 February 2016. On 2 June 2016 the Department issued Mr Kumar a notice of intention to consider cancellation (NOICC) of his Subclass 457 visa on the basis that he may have breached condition 8107 as more than 90 consecutive days had passed since he ceased employment with the employer that most recently nominated him. Mr Kumar’s representative responded to the NOICC on 7 June 2006. Details of Mr Kumar’s claims and the evidence contained in his representative’s response, including a copy acknowledgement of nomination application received by the Department dated 7 June 2016 from his prospective employer Lyontz Enterprise Pty Ltd (Lyontz) that nominates Mr Kumar for a position as Cook with the company, are discussed below. In considering whether to cancel Mr Kumar’s Subclass 457 visa the delegate noted that, notwithstanding he had demonstrated a new nomination application is pending, the purpose for which his Subclass visa was granted ended on 4 May 2016. Prior to the hearing, Mr Kumar’s representative provided the Tribunal with a number of documents including a copy of Lyontz’s sponsorship approval notice and Lyontz’s letter of offer to Mr Kumar in relation to the position of Cook at Yellowdine Roadhouse in Western Australia. After the hearing, his representative also provided a letter of support from Mr Kumar’s prospective employer Lyontz together with photographs of Yellowdine Roadhouse (including photos of the dining area and a fully equipped kitchen), sample menus and an extract from the local newsletter with an advertisement for the role of full-time Cook at the Roadhouse. Relevant law 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)(b) of the Act. 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? A visa may be cancelled under s.116(1)(b) of the Act if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this case, visa condition 8107 attached to Mr Kumar’s Subclass 457 visa. Since Mr Kumar’s Subclass 457 visa was granted under cl.457.223(4) of Schedule 2 of the Regulations, visa condition 8107(3) is applicable. This requires Mr Kumar to work only in the occupation listed in the most recently approved nomination in relation to him, and only in the business of his sponsor, or an associated entity. In addition, if he ceases employment, the period during which he ceases employment must not exceed 90 consecutive days. There is an exception which includes certain specified occupations not applicable in this case.

Decision

Reasons for decision

Having considered all of the circumstances in this case and the evidence before it, the Tribunal is persuaded that the evidence in favour of not cancelling Mr Kumar’s Subclass 457 visa outweighs that in favour of cancelling his visa. For these reasons, the Tribunal concludes it should exercise its discretion not to cancel Mr Kumar’s Subclass 457 visa. DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa. The Tribunal has no jurisdiction with respect to the other applicants.Katie MalyonMemberAnnexure A – Extracts from the Migration Act 1958s.116 Power to cancel (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: (a) the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; or (aa) the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist; or (b) its holder has not complied with a condition of the visa; or (c) another person required to comply with a condition of the visa has not complied with that condition; or (d) if its holder has not entered Australia or has so entered but has not been immigration cleared--it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or (e) the presence of its holder in Australia is or may be, or would or might be, a risk to: (i) the health, safety or good order of the Australian community or a segment of the Australian community; or (ii) the health or safety of an individual or individuals; or (f) the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or (fa) in the case of a student visa: (i) its holder is not, or is likely not to be, a genuine student; or (ii) its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or (g) a prescribed ground for cancelling a visa applies to the holder. (1AA) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is not satisfied as to the visa holder's identity. (1AB) Subject to subsections (2) and (3), the Minister may cancel a visa (the current visa) if he or she is satisfied that: (a) incorrect information was given, by or on behalf of the person who holds the current visa, to: (i) an officer; or (ii) an authorised system; or (iii) the Minister; or (iv) any other person, or a tribunal, performing a function or purpose under this Act; or (v) any other person or body performing a function or purpose in an administrative process that occurred or occurs in relation to this Act; and (b) the incorrect information was taken into account in, or in connection with, making: (i) a decision that enabled the person to make a valid application for a visa; or (ii) a decision to grant a visa to the person; and (c) the giving of the incorrect information is not covered by Subdivision C. This subsection applies whenever the incorrect information was given and whether the visa referred to in subparagraph (b)(i) or (ii) is the current visa or a previous visa that the person held. (1A) The regulations may prescribe matters to which the Minister may have regard in determining whether he or she is satisfied as mentioned in paragraph (1)(fa). Such regulations do not limit the matters to which the Minister may have regard for that purpose. (2) The Minister is not to cancel a visa under subsection (1), (1AA) or (1AB) if there exist prescribed circumstances in which a visa is not to be cancelled.(3) If the Minister may cancel a visa under subsection (1), (1AA) or (1AB), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled. s.140 Cancellation of visa results in other cancellation (1) If a person's visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds) or 137J (student visas), a visa held by another person because of being a member of the family unit of the person is also cancelled. (2) If: (a) a person's visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds) or 137J (student visas); and (b) another person to whom subsection (1) does not apply holds a visa only because the person whose visa is cancelled held a visa; the Minister may, without notice to the other person, cancel the other person's visa. (3) If: (a) a person's visa (the cancelled visa ) is cancelled under any provision of this Act; and (b) the person is a parent of another person; and (c) the other person holds a particular visa (the other visa ), that was granted under section 78 (child born in Australia) because the parent held the cancelled visa; the other visa is also cancelled. (4) If: (a) a visa is cancelled under subsection (1), (2) or (3) because another visa is cancelled; and (b) the cancellation of the other visa is revoked under section 131, 133F, 137L or 137N; the cancellation under subsection (1), (2) or (3) is revoked. oOOoAnnexure B – Extracts from the Migration Regulations 1994Schedule 8 - Visa Conditions 8107 (1) If the visa is not a visa mentioned in subclause (3) or (4), and was granted to enable the holder to be employed in Australia, the holder must not: (a) cease to be employed by the employer in relation to which the visa was granted; or (b) work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or (c) engage in work for another person or on the holder's own account while undertaking the employment in relation to which the visa was granted. (2) If the visa is not a visa mentioned in subclause (3) or (4), and subclause (1) does not apply, the holder must not: (a) cease to undertake the activity in relation to which the visa was granted; or (b) engage in an activity inconsistent with the activity in relation to which the visa was granted; or (c) engage in work for another person or on the holder's own account inconsistent with the activity in relation to which the visa was granted. (3) If the visa is , or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4): (a) the holder: (i) must work only in the occupation listed in the most recently approved nomination for the holder; and (ii) unless the circumstances in subclause (3A) apply: (A) must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or (B) if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor's approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor's term of approval as a standard business sponsor must work only in a position in the business of the sponsor or an associated entity of the sponsor; or (C) if the sponsor is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the sponsor's approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor's term of approval as a standard business sponsor must work only in a position in the business of the sponsor; and (aa) the holder must commence that work within 90 days after the holder's arrival in Australia; and (b) if the holder ceases employment the period during which the holder ceases employment must not exceed 90 consecutive days; and (c) if the holder is required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, in the location where the holder's position is situated--the holder must: (i) hold the licence, registration or membership; and (ii) comply with each condition or requirement to which the licence, registration or membership is subject. (3A) For subparagraph (3)(a)(ii), the circumstances are that: (a) if the nomination was made before 1 July 2010 the holder's occupation is specified in an instrument in writing for subparagraph 2.72(10)(d)(ii) or (iii); or (aa) if the nomination is made on or after 1 July 2010 the holder's occupation is specified in an instrument in writing for subparagraph 2.72(10)(e)(ii) or (iii); or (b) the holder is continuing to work for the sponsor, or the associated entity of the sponsor, for the purpose of fulfilling a requirement under a law relating to industrial relations and relating to the giving of notice. (3B) If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(8): (a) the holder must work only in the occupation or position in relation to which the visa was granted; and (b) if the holder ceases employment the period during which the holder ceases employment must not exceed 90 consecutive days. (4) If the visa is: (a) a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or (b) a Subclass 402 (Training and Research) visa; or (ba) a Subclass 420 (Temporary Work (Entertainment)) visa; the holder must not: (c) cease to engage in the most recently nominated occupation, program or activity in relation to which the holder is identified; or (d) engage in work or an activity that is inconsistent with the most recently nominated occupation, program or activity in relation to which the holder is identified; or (e) engage in work or an activity for an employer (within the meaning of subregulation 2.72A (8)) other than the employer identified in accordance with paragraph 2.72A(7)(a) in the most recent nomination in which the holder is identified. …8501 The holder must maintain adequate arrangements for health insurance while the holder is in Australia. oOOo

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act exists. As that ground does not require mandatory cancellation under s.116(3) of the Act, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.Consideration of discretion 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’. In exercising its power to cancel a visa, the Tribunal should have regard to policy as a relevant consideration. However, policy is not binding on the Tribunal.[1] The overarching principle is that the Tribunal must make an independent assessment of the material before it with a view to reaching the correct or (in the case of the exercise of a discretionary power, as in this case) the preferable decision.[2]The purpose of the visa holder’s travel to and stay in Australia[1] Re Drake v MIEA (No 2) (1979) 2 ALD 634; Qiao v MIAC [2008] FMCA 380 [2] See Hneidi v MIAC [2010] FCAFC 20 (Spender, Emmett and Jaocobson JJ) at [34] Mr Kumar told the Tribunal had he originally came to Australia from India in January 2008 to study. Initially, he studied Commercial Cookery and then did a Diploma of Business before he began working for 1½ years as a Cook on a Subclass 485 Temporary Graduate visa. Mr Kumar was then successful in securing a Subclass 457 visa sponsored by Gurpreet. He worked as a Cook in Kandos, about 3 hours’ drive west of Sydney. In all, Mr Kumar has more than 4 years’ experience as a Cook. The Tribunal notes that the purpose of a Subclass 457 visa is for holders of that visa to work for an approved sponsor in an approved occupation. Mr Kumar is now the subject of a pending nomination by Lyontz, an approved sponsor, in the role of Cook at Yellowdine in Western Australia. The Tribunal is satisfied Mr Kumar has the skills and experience to fulfil the purpose of the Subclass 457 visa and that this weighs in favour of not cancelling his visa. Just after the hearing, Mr Kumar’s representative provided a detailed letter from Lyontz, Mr Kumar’s prospective employer and approved sponsor. The letter includes a copy of the advertisement in the local newsletter from May 2016 for a Cook at the Yellowdine Roadhouse, the only such facility in Yellowdine. The Tribunal notes that Yellowdine is located on the Nullarbor Plain, some 4 hours’ drive east of Perth on the Great Eastern Highway. The closest residential area is 35 km away in Southern Cross. Mr Kumar’s prospective employer indicated in his letter that he has endeavoured to fill the role of Cook at Yellowdine since October 2015 and that if he is unsuccessful in his attempts to employ Mr Kumar he will be forced to sell the business as it is not possible for him to keep working on his own any longer. Mr Kumar told the Tribunal that his brother is a trucker who does the Sydney-Perth-Sydney route and that, when he called into the Yellowdine Roadhouse one time in May 2016, he saw the ad in the local newsletter. This was just after Mr Kumar became aware that Gurpreet had gone into liquidation and the lady from the Department’s Compliance Team told him he needed to find a new sponsor to take over his Subclass 457 visa. The Tribunal accepts the difficulty for businesses in remote regional areas of Australia such as Yellowdine in finding suitably qualified staff who are prepared to work in such locations. The Tribunal also accepts Lyontz has a genuine need to fill the position of Cook in Yellowdine and that this weighs in favour of not cancelling Mr Kumar’s Subclass 457 visa.Extent of compliance with visa conditions, now and on previous occasions