1818362 (Migration) - [2019] AATA 2384

1818362 (Migration) [2019] AATA 2384 (15 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1818362
MEMBER:Sheridan Lee
DATE:15 April 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 15 April 2019 at 9:24am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry(Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – breach of condition – employment conditions – not been working for sponsoring employer for more than 90 consecutive days – failed to secure new sponsor – non-compliance substantial – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 189, 198, 348
Migration Regulations 1994, Schedule 2,
CASES
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459
COT15 v Minister for Immigration and Border Protection (No1)[2015] FCAFC 190
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767
Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Rani & Ors v MIMA (1997) 80 FCR 379
Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492
Tien & Ors v MIMA (1998) 89 FCR 80
Zhao v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1235

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 19 June 2018 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(b) on the basis that the primary applicant (the applicant) failed to comply with visa condition 8107(3)(b) of her Subclass 457 visa. Visa condition 8107(3)(b) requires that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. 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 the first named applicant. The second named applicant’s visa was 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 the second named applicant’s visa self-executing on the cancellation of the first named applicant’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…

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 1818362 (Migration)

Details

AGLC: 1818362 (Migration) [2019] AATA 2384
Case: [2019] AATA 2384
Decision Date: 15 April 2019

CaseChat Overview and Summary

This matter concerned the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa held by the applicant. The applicant had been sponsored by [Business 1], trading as [Café 1], for the occupation of Cook. The visa was granted subject to condition 8107, which requires that a visa holder must not cease employment for more than 90 consecutive days. The Department of Immigration and Border Protection (now the Department of Home Affairs) issued a Notice of Intention to Consider Cancellation, indicating that the nominated business was not operating and had changed its signage. The applicant responded to this notice, but the Tribunal ultimately affirmed the delegate's decision to cancel the visa.

The primary legal issue before the Tribunal was whether the applicant had breached visa condition 8107, thereby providing a ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth). The Tribunal was required to determine if the applicant had ceased employment for more than 90 consecutive days and, if so, whether the visa should be cancelled, considering all relevant circumstances. The Tribunal also considered the procedural requirements for cancellation, including the provision of adequate notice and an opportunity for the applicant to respond.

The Tribunal found that the evidence, including the Department's visits to the nominated business premises and the change in signage, established that the applicant had likely ceased employment with the sponsoring employer for a period exceeding 90 consecutive days. The Tribunal noted that the onus of establishing the facts leading to cancellation rests with the Minister, or on review, with the Tribunal, and that the applicant was invited to show cause why the visa should not be cancelled. While acknowledging that the applicant had lived in Australia since 2011, had completed commercial cookery qualifications, and had family members in Australia, the Tribunal concluded that these circumstances did not outweigh the substantial non-compliance with the visa conditions. The Tribunal affirmed the decision to cancel the applicant's visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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). 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.Background The decision of the delegate of the Minister for Immigration sets out that the Department of Immigration and Border Protection (now the Department of Home Affairs) approved a nomination by [Business 1], trading as [Café 1], to sponsor the applicant for a Subclass 457 visa in the occupation of Cook. On 22 September 2015, the Department granted the applicant a Subclass 457 visa on the basis that she was sponsored by a standard business sponsor under subclause 457.223(4). The Subclass 457 visa was granted subject to mandatory condition 8107. Visa condition 8107(3)(b) requires that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.Notification procedures The Act sets out the procedure for cancelling visas. Notice of the grounds on which cancellation is being considered must be given and the visa holder invited to show either that the grounds do not exist, or that there are reasons why the visa should not be cancelled.[1] In addition, a visa may not be cancelled before the visa holder has been given a notice of cancellation that includes information relevant to the cancellation.[1] Section 119. The onus of establishing the facts which may lead to cancellation rests with the Minister, or on review, with the Tribunal. Although the visa holder must be invited to show that the ground for cancellation does not exist, or if it does, that there is a reason why the visa should not be cancelled, this does not place an onus on the visa holder to rebut the possible ground of cancellation identified.[2] [2] See Zhao v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1235 at [25] and [32]. On 10 May 2018, the Department sent the applicant a Notice of Intention to Consider Cancellation (‘the notice’) noting that it had visited the nominated address for [Café 1] on three occasions: [in] September 2017,[in] November 2017 and [in] January 2018. On each occasion the business was not operating and on the final visit, the signage had changed to [Café 2]. As a result, the Department informed the applicant in the relevant notice that her Subclass 457 visa might be cancelled under subsection 116(1)(b) of the Act because she may have breached condition 8107. The notice invited the applicant to comment on why her visa should not be cancelled, and she responded to this invitation on 17 May 2018. Accordingly, the Tribunal finds that the applicant was given a notice of intention to consider cancellation in relation to her Subclass 457 visa. It also finds that this notice set out the grounds of the alleged non-compliance in respect of condition 8107. In addition, the Tribunal finds that the response the applicant provided on 17 Nay 2018 indicated that she understood the nature of the alleged non-compliance.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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). 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.Background The decision of the delegate of the Minister for Immigration sets out that the Department of Immigration and Border Protection (now the Department of Home Affairs) approved a nomination by [Business 1], trading as [Café 1], to sponsor the applicant for a Subclass 457 visa in the occupation of Cook. On 22 September 2015, the Department granted the applicant a Subclass 457 visa on the basis that she was sponsored by a standard business sponsor under subclause 457.223(4). The Subclass 457 visa was granted subject to mandatory condition 8107. Visa condition 8107(3)(b) requires that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.Notification procedures The Act sets out the procedure for cancelling visas. Notice of the grounds on which cancellation is being considered must be given and the visa holder invited to show either that the grounds do not exist, or that there are reasons why the visa should not be cancelled.[1] In addition, a visa may not be cancelled before the visa holder has been given a notice of cancellation that includes information relevant to the cancellation.[1] Section 119. The onus of establishing the facts which may lead to cancellation rests with the Minister, or on review, with the Tribunal. Although the visa holder must be invited to show that the ground for cancellation does not exist, or if it does, that there is a reason why the visa should not be cancelled, this does not place an onus on the visa holder to rebut the possible ground of cancellation identified.[2] [2] See Zhao v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1235 at [25] and [32]. On 10 May 2018, the Department sent the applicant a Notice of Intention to Consider Cancellation (‘the notice’) noting that it had visited the nominated address for [Café 1] on three occasions: [in] September 2017,[in] November 2017 and [in] January 2018. On each occasion the business was not operating and on the final visit, the signage had changed to [Café 2]. As a result, the Department informed the applicant in the relevant notice that her Subclass 457 visa might be cancelled under subsection 116(1)(b) of the Act because she may have breached condition 8107. The notice invited the applicant to comment on why her visa should not be cancelled, and she responded to this invitation on 17 May 2018.

Decision

Reasons for decision

Nevertheless, the Tribunal expresses the hope that the Department gives due consideration to the applicant’s claims for protection.DECISION The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa. The Tribunal has no jurisdiction with respect to the second named applicant.Sheridan LeeMember

Ratio Decidendi

Legal Principle Established

As such, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled. The circumstances that gave rise to the cancellation as put forward by the applicant are considered below.Consideration of discretion There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it. 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.[3] [3] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] 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] 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 and the oral evidence from the applicant and her father at the hearing. The policy outlines that the following matters should be taken into account, if relevant, when deciding whether to cancel a visa.The purpose of the visa holder’s travel to and stay in Australia At the hearing, the applicant gave evidence that she came to Australia to study [Course 1]. The Department’s records show that the applicant first arrived in Australia [in] March 2011 on a Subclass 676 Tourist visa and was granted a Subclass 573 Higher Education visa on 28 June 2011. She has lived here continuously since that time. The applicant didn’t complete the [Course 1] qualification, but did go onto complete Certificates III and IV in Commercial Cookery. The applicant’s mother, father and two sisters also live in Australia. The applicant was issued a Subclass 457 visa on 22 September 2015 to enable her to remain in Australia and work in the occupation of Cook. The most recent standard business sponsor to nominate the applicant was [Business 1], with the nomination approved on 21 February 2017. The applicant’s daughter is listed as a dependant on her visa.