Bhalla (Migration) - [2019] AATA 2471

Bhalla (Migration) [2019] AATA 2471 (28 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Sonu Bhalla
Mr Manminder Singh Sandhu
Miss Reet Kanwal
Mr Kabir Sandhu
CASE NUMBER:  1836339
HOME AFFAIRS REFERENCE(S):           BCC2018/41088609
MEMBER:Mary Sheargold
DATE:28 June 2019
PLACE OF DECISION:  Melbourne
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 28 June 2019 at 1:51pm
CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – credible witness – subjective belief of employment status – undocumented unpaid leave – consideration of discretion – 2 employers willing to sponsor the applicant – purpose of visa fulfilled – past compliance record – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 116, 119, 140, 348
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107
CASES
Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Chow v MIMIA [2002] FCA 1459
Durzi v MIMIA [2006] FCA 1767
Lobo v MIMIA [2003] FCAFC 168
Moller v MIAC [2007] FMCA 168
Rani & Ors v MIMA (1997) 80 FCR 379
Sakhno v MIAC [2007] FMCA 1492
Tien & Ors v MIMA (1998) 89 FCR 80
Visnumolakala v Minister for Immigration [2006] FMCA 1209
Zhao v MIMIA [2000] FCA 1235
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 10 December 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 applicant had not complied with the conditions attached to her Subclass 457 visa, specifically that she had breached condition 8107(3)(b) of Schedule 8 to the Migration Regulations 1994 (the Regulations) because she ceased employment with her sponsor, Evergreen Environmental Solutions Pty Ltd in September 2017. 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 other applicants’ 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 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 has no…

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 Bhalla (Migration)

Details

AGLC: Bhalla (Migration) [2019] AATA 2471
Case: [2019] AATA 2471
Decision Date: 28 June 2019

CaseChat Overview and Summary

This matter concerned the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa held by the applicant, Ms. Bhalla. The Department of Home Affairs had considered cancelling her visa under s.116(1)(b) of the Migration Act 1958 (Cth) on the basis that she had breached visa condition 8107, which requires that if employment ceases, the period must not exceed 90 consecutive days. The Departmental officers had ascertained that the applicant’s employment with her sponsor, Evergreen Environmental Solutions Pty Ltd, had ceased around September 2017, significantly exceeding the permitted 90-day period.

The primary legal issue before the Tribunal was whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to determine if the applicant had indeed breached visa condition 8107 and, if satisfied that the ground for cancellation was made out, to consider all relevant circumstances, including government policy, in deciding whether to cancel the visa. The Tribunal noted that the onus of establishing the facts leading to cancellation rested with the Minister, or on review, with the Tribunal, and that the applicant was not obliged to rebut the identified ground for cancellation.

The Tribunal found that the ground for cancellation under s.116(1)(b) was established, as the applicant's employment had ceased for a period exceeding 90 days. However, in exercising its discretion regarding cancellation, the Tribunal considered several factors. It gave considerable weight to the applicant's documentary evidence from two potential employers, including her current employer, who were willing to sponsor her as a Pastrycook once her visa issues were resolved. The Tribunal acknowledged the applicant's efforts to secure new employment and noted her contrition for misleading Departmental officers during a telephone interview, explaining her actions as fear of repercussions from her former sponsor.

Ultimately, the Tribunal concluded that the visa should not be cancelled. It set aside the decision under review and substituted a decision not to cancel Ms. Bhalla's Subclass 457 visa. The Tribunal indicated it had no jurisdiction concerning any other applicants.

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) on the basis that the applicant has not complied with the conditions on her Subclass 457 visa. 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 On 28 October 2014, the Department of Home Affairs approved a nomination by Evergreen Environmental Solutions Pty Ltd atf Seth and Kapoor Family Trust to sponsor the applicant for a Subclass 457 visa in the occupation of Pastrycook (ANZSCO 351112) at The Cheesecake Shop in Mornington. The applicant was granted Subclass 457 visa on 29 January 2015 on the basis that she was sponsored by a standard business sponsor under cl.457.223(4) of Schedule 2 to the Regulations. The Subclass 457 visa was granted subject to mandatory condition 8107. Visa condition 8107(3)(b) requires that if the applicant ceases employment, the period 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 for cancellation do not exist, or that if they do, there are reasons that the visa should not be cancelled: s.119 of the Act. 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. The onus of establishing the facts that 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(s) for cancellation does not exist, or if it does, that there is a reason that the visa should not be cancelled, this does not place an onus on the visa holder to rebut the possible ground of cancellation identified: see Zhao v MIMIA [2000] FCA 1235 at [25] and [32]. On 9 November 2018, the Department sent the applicant a Notice of Intention to Consider Cancellation (the Notice) noting that Departmental officers had attended The Cheesecake Shop in Mornington on 24 July 2018 and ascertained that the applicant’s employment at that location had ceased around September 2017. As a result, the Department informed the applicant in the Notice that her Subclass 457 visa might be cancelled in accordance with s.116(1)(b) of the Act because she may have breached visa condition 8107. The Notice invited the applicant to comment on why her visa should not be cancelled, and she responded to this invitation on 18 November 2018. Accordingly, the Tribunal finds that the applicant was given a Notice of Intention to Consider Cancellation in relation to her Subclass 457 visa. The Tribunal also finds that the Notice sets out the grounds of the alleged non-compliance in respect of condition 8107 as required under the legislation.Does the ground for cancellation exist?

Evidence

Evidence Before The Court

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 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) on the basis that the applicant has not complied with the conditions on her Subclass 457 visa. 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 On 28 October 2014, the Department of Home Affairs approved a nomination by Evergreen Environmental Solutions Pty Ltd atf Seth and Kapoor Family Trust to sponsor the applicant for a Subclass 457 visa in the occupation of Pastrycook (ANZSCO 351112) at The Cheesecake Shop in Mornington. The applicant was granted Subclass 457 visa on 29 January 2015 on the basis that she was sponsored by a standard business sponsor under cl.457.223(4) of Schedule 2 to the Regulations. The Subclass 457 visa was granted subject to mandatory condition 8107. Visa condition 8107(3)(b) requires that if the applicant ceases employment, the period 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 for cancellation do not exist, or that if they do, there are reasons that the visa should not be cancelled: s.119 of the Act. 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. The onus of establishing the facts that 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(s) for cancellation does not exist, or if it does, that there is a reason that the visa should not be cancelled, this does not place an onus on the visa holder to rebut the possible ground of cancellation identified: see Zhao v MIMIA [2000] FCA 1235 at [25] and [32]. On 9 November 2018, the Department sent the applicant a Notice of Intention to Consider Cancellation (the Notice) noting that Departmental officers had attended The Cheesecake Shop in Mornington on 24 July 2018 and ascertained that the applicant’s employment at that location had ceased around September 2017. As a result, the Department informed the applicant in the Notice that her Subclass 457 visa might be cancelled in accordance with s.116(1)(b) of the Act because she may have breached visa condition 8107. The Notice invited the applicant to comment on why her visa should not be cancelled, and she responded to this invitation on 18 November 2018.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.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.Mary SheargoldMember

Ratio Decidendi

Legal Principle Established

For these reasons, 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.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. There is no 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 the applicant: see Chow v MIMIA [2002] FCA 1459; Lobo v MIMIA [2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209; Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v MIMIA [2006] FCA 1767 at [49]; Moller v MIAC [2007] FMCA 168 at [14]; and Sakhno v MIAC [2007] FMCA 1492 at [55]. The applicant was granted a Subclass 457 visa on 29 January 2015 to enable her to remain in Australia and work for the sponsor in the occupation of Pastrycook. The purpose of the Subclass 457 visa scheme was to fill genuine shortages in the Australian skilled job market and the occupation of Pastrycook was included on the list of occupations that has been designated for that purpose. In written submissions dated 20 June 2019, the applicant told the Tribunal that she has at least 2 other potential sponsors willing to sponsor her to work as a Pastrycook in their The Cheesecake Shop franchises, including the applicant’s current employer, Chirag Cakes Pty Ltd. The Tribunal has received signed letters from the owners of both franchises confirming their willingness to sponsor the applicant once her visa issues are resolved. The Tribunal places considerable weight on the fact that the applicant has documentary evidence from 2 employers willing to sponsor her, including her current employer, when considering whether to exercise the discretion to cancel the applicant’s visa. In particular, the Tribunal notes the applicant’s considerable efforts to secure new employment and a new potential sponsor once she was aware that her employment with Evergreen Environmental Solutions Pty Ltd was untenable. The Tribunal notes that there is information on the Departmental file indicating that the applicant was not honest in her telephone interview with Departmental officers on 24 July 2018. The Tribunal has considered the transcript of that interview, where the applicant states that she still works at The Cheesecake Shop in Mornington. The Tribunal discussed this with the applicant at the hearing, and notes the applicant’s genuine contrition for her actions. The applicant told the Tribunal she was scared during the telephone interview and was worried about repercussions from the sponsor if she had said anything differently, but acknowledged that she should not have made statements that she still worked in Mornington.