Abujen (Migration) - [2017] AATA 1533

Abujen (Migration) [2017] AATA 1533 (4 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jerry Bausa Abujen
CASE NUMBER:  1604207
DIBP REFERENCE(S):  BCC2016/402460
MEMBER:L. Hawas
DATE:4 September 2017
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 04 September 2017 at 7:39pm

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Applicant ceased sponsored employment over 90 days – Sponsoring business ceased operation – Nomination application refused for new employer – Issues with migration agent
LEGISLATION
Migration Act 1958, ss 48, 116(1)(b), 140
Migration Regulation 1994, Schedule 2, r 2.12, Condition 8107
CASES
Re Drake (No. 2) (1979) 2 ALD 634
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 22 March 2016 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).
The applicant’s visa was subject to condition 8107(3)(b), which provided that if he ceases employment with his nominated employer, the period during which he ceases employment must not exceed 90 consecutive days. The delegate cancelled the applicant’s visa under s.116(1)(b) of the Act on the grounds that the applicant breached condition 8107(3)(b) by ceasing employment with his nominated employer for more than 90 consecutive days. In this review, the Tribunal must decide whether that ground for cancellation is made out, and if so, whether the proper exercise of its discretion requires the visa to remain cancelled.
The delegate’s decision record, which the applicant gave to the Tribunal in the review, recorded the following:
(a)On 6 May 2014, the applicant was granted a temporary business entry (class UC), temporary work (skilled) (subclass 457) visa, which was to remain current for four years until 6 May 2018;
(b)The standard business sponsor who sponsored the applicant for his 457 visa was Ocean Shores Smash Repairs Pty Ltd (trading as John Dwyer Smash Repairs) (Ocean Shores). The applicant worked for Ocean Shores in the approved position of panel beater;
(c)By notice of intention to cancel the applicant’s visa dated 10 February 2016, the department notified the applicant that Ocean Shores had informed it that the applicant ceased employment with that company on about 28 August 2015. The notice stated that the applicant had apparently breached condition 8107(3)(b) of his visa, and that the department was considering cancelling it. The notice sought a written response from the applicant. The applicant did not respond;
(d)Information on the department’s systems revealed that a fresh application to nominate the applicant for a 457 visa had not been brought at the time of the delegate’s decision, and the applicant had not otherwise applied for any fresh…

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 Abujen (Migration)

Details

AGLC: Abujen (Migration) [2017] AATA 1533
Case: [2017] AATA 1533
Decision Date: 4 September 2017

CaseChat Overview and Summary

This matter concerned an application by Abujen (the applicant) to review the decision of the Minister to cancel his subclass 457 (Temporary Work (Skilled)) visa. The applicant had ceased sponsored employment with Ocean Shores more than 90 days prior, and the sponsoring business had ceased operation. A subsequent nomination application for new employment was refused, and issues had arisen with the applicant's migration agent.

The primary legal issue before the Tribunal was whether the grounds for cancellation under section 116 of the Migration Act 1958 (Cth) were made out, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal considered whether the applicant had breached condition 8107(3)(b) of his visa, which required him not to cease employment with his nominated employer for more than 90 consecutive days.

The Tribunal found that the applicant had indeed breached condition 8107(3)(b) as he ceased employment with Ocean Shores in late August 2015 and remained unemployed for more than 90 consecutive days. Accordingly, the Tribunal was satisfied that lawful grounds for cancellation existed. However, the Tribunal then considered the exercise of discretion, noting that cancellation was not mandatory. Having regard to all the circumstances, including the applicant's involuntary cessation of employment due to the business downturn and the issues with his migration agent, the Tribunal concluded that the correct and preferable exercise of its discretion favoured setting aside the cancellation decision.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s subclass 457 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Having regard to all the evidence before it, and balancing the matters both in favour of setting aside the delegate’s decision and affirming it, the Tribunal concludes that the correct and preferable exercise of its discretion favours setting aside the decision to cancel the applicant’s 457 visa and substituting a decision not to cancel the visa. 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.L. HawasSenior Member

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside and substituted by a decision not to cancel the visa. Consideration Does the ground for cancellation exist? Under s.116 of the Act, the Minister may cancel a visa if he is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, those 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 proper exercise of the discretion requires the visa to be cancelled, having regard to all the relevant circumstances, which may include matters of government policy. The Minister or the Tribunal may cancel a visa under s.116(1)(b) of the Act if satisfied that the holder did not comply with a condition of the visa. Here, the applicant’s visa contained condition 8107(3)(b), which provided that the applicant must not cease employment with his nominated employer (or an entity associated with the employer) for more than 90 consecutive days.[1] [1] The department’s records on the Integrated Client Services Environment (ICSE) confirm that the applicant’s visa was subject to condition 8107. During the Tribunal hearings, the applicant said that he did not leave employment with Ocean Shores voluntarily. He wanted to stay with Ocean Shores. But Ocean Shores’ business suffered a downturn, and by late August 2015 it could not afford to keep the applicant employed any longer and terminated him. During the hearings, the applicant accepted that the delegate had lawful grounds to cancel his 457 visa. He ceased employment with Ocean Shores in late August 2015 and did not return to work for Ocean Shores at any time during the subsequent 90 days. On the evidence before the Tribunal:(a)It is satisfied that the applicant’s 457 visa was subject to condition 8107, and more particularly condition 8107(3)(b). The visa was granted on 6 May 2014, and would have, but for its cancellation, remained effective until 6 May 2018;(b)It finds that the applicant ceased employment with Ocean Shores in late August 2015. The period during which the applicant subsequently remained unemployed exceeded 90 consecutive days; and (c)It finds that the applicant breached condition 8107(3)(b) of his 457 visa. Accordingly, the Tribunal is satisfied that the delegate had lawful grounds to cancel the applicant’s visa. As those grounds do not require mandatory cancellation of the applicant’s visa under s. 116(3) of the Act, the Tribunal must proceed to consider whether, as a matter of discretion, the power to cancel the visa should be exercised.The discretion The Act and the Migration Regulations 1994 (Regulations) do not prescribe the matters to be considered in the exercise of the discretion to cancel a visa. The discretion is to be guided by having regard to all the relevant circumstances. The Tribunal may have regard to matters of government policy such as the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’. But the Tribunal is not bound to follow PAM3, and it can have regard to a matter outside of PAM3 so long as the matter is relevant.[2] However, PAM3 constitutes a useful starting point for the exercise of the discretion. The purpose of the applicant’s travel to and stay in Australia[2] See Brennan J in Re Drake (No. 2) (1979) 2 ALD 634. 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 should not be elevated into legally necessary or relevant considerations. The policy guidelines in PAM3 cannot go beyond the wording of the legislation, even when they are favourable to the applicant. See for example Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459.