Bishwokarma (Migration) - [2020] AATA 4814

Bishwokarma (Migration) [2020] AATA 4814 (16 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Sunil Bishwokarma
Mrs Ganga Shrestha
CASE NUMBER:  2008817
HOME AFFAIRS REFERENCE(S):          BCC2019/3443862
MEMBER:Antonio Dronjic
DATE:16 November 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 482 - Temporary Skill Shortage visa.
The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 16 November 2020 at 2:50pm
CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – ceased employment for more than 60 days – visa would have ceased in any case – new employer’s application for approval of nomination – applicant unable to apply for different visa class offshore because of COVID-19 travel restrictions – decision under review affirmed for first applicant, no jurisdiction for second applicant
LEGISLATION
Migration Act 1958 (Cth), ss 48, 116(1)(b), 140(1), 348
Migration Regulations 1994 (Cth), Schedule 8, condition 8607(5)
CASES
Alimi v Minister for Immigration [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 v MIMA (1997) 80 FCR 379
Re Drake (No. 2) (1979) 2 ALD 634
Sakhno v MIAC [2007] FMCA 1492
Tien v MIMA (1998) 89 FCR 80
Vishnumolakala v Minister for Immigration [2006] FMCA 1209
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 25 May 2020 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 482 - Temporary Skill Shortage 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 breached condition 8607(5), as the period during which the applicant ceased employment exceeded 60 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 has no jurisdiction with respect to the second named applicant.
Background to the cancellation of the applicant’s visa
The decision record of 25 May 2020 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. 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 Bishwokarma (Migration)

Details

AGLC: Bishwokarma (Migration) [2020] AATA 4814
Case: [2020] AATA 4814
Decision Date: 16 November 2020

CaseChat Overview and Summary

This matter concerned the review of a decision to cancel the Subclass 482 (Temporary Skill Shortage) visa held by the first applicant, Mr Bishwokarma. The second applicant's visa was automatically cancelled as a consequence of the first applicant's visa cancellation, by operation of section 140(1) of the Migration Act 1958 (Cth). The Tribunal determined it had no jurisdiction to consider the second applicant's matter as no decision was involved in their visa cancellation.

The primary legal issue before the Tribunal was whether the delegate's decision to cancel Mr Bishwokarma's visa under section 116(1)(b) of the Act was correct. This required the Tribunal to determine if Mr Bishwokarma had failed to comply with a condition of his visa, specifically condition 8607(5), which stipulated that any cessation of employment must not exceed 60 consecutive days. The Tribunal also considered whether to exercise its discretion to cancel the visa, having regard to the circumstances of the case and relevant policy guidelines.

The Tribunal found that Mr Bishwokarma ceased employment on 3 July 2019 and that this period of unemployment exceeded 60 consecutive days, thereby breaching condition 8607(5). Consequently, the ground for cancellation under section 116(1)(b) was established. In considering the exercise of discretion, the Tribunal noted that while policy guidelines could be a useful starting point, they were not legally binding. The Tribunal found no evidence to suggest that cancelling the visa would breach Australia's international obligations, including non-refoulement obligations or obligations concerning the rights of children.

The Tribunal affirmed the delegate's decision to cancel Mr Bishwokarma's visa. It noted that while the applicant might become an unlawful non-citizen and liable for detention or removal if he did not depart Australia or obtain another visa, this was not a mandatory consequence of the cancellation decision. The Tribunal also acknowledged that section 48 of the Act would limit the types of visas Mr Bishwokarma could apply for while onshore, and he might need to depart Australia to apply for certain visas.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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 has no jurisdiction with respect to the second named applicant.Background to the cancellation of the applicant’s visa The decision record of 25 May 2020 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The Tribunal summarises those reasons and findings as follows:·On 24 October 2018, the applicant was granted a Subclass 482 visa, to remain valid until 24 October 2020;·The standard business sponsor who most recently nominated the applicant to work as a Chef was Icejade Pty Limited (the sponsor);·On 3 July 2019, the applicant ceased his employment with the sponsoring business;·A notice of intention to consider cancellation (NOICC) was issued on 7 May 2020;·On 25 May 2020, after considering the applicant’s response to the NOICC, the delegate proceeded to cancel the applicant’s visa. The applicant applied to the Tribunal on 26 May 2020 for review of the visa cancellation and with his application submitted a copy of the primary decision record. On 26 October 2020, 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 10 November 2020. On 9 November 2020, the applicant’s representative submitted a copy of an acknowledgment letter from the Department dated 11 June 2020 as evidence that the applicant’s new employer, Maharajas Kitchen Pty Ltd, applied to the Department for approval of a nomination under the Employer Nomination Scheme, nominating Mr Bishwokarma for a Subclass 186 visa. The applicant appeared before the Tribunal via video link on 10 November 2020 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent who attended the hearing. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conferencing.

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.Does the ground for cancellation exist? A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance, condition 8607 is attached to the applicant’s visa. The condition in 8607(5) requires that if the holder ceases employment, the period during which such employment ceases must not exceed 60 consecutive days. As noted above, condition 8607 was attached to the applicant’s visa, which was granted on 24 October 2018, and which, but for its cancellation, was valid to 24 October 2020. Based on the evidence before it, including the oral evidence from the applicant, the Tribunal finds that the applicant ceased employment at the sponsoring business on 3 July 2019. The Tribunal further finds that the period during which the visa holder ceased employment exceeded 60 consecutive days. Accordingly, the Tribunal finds that the applicant did not comply with condition 8607(5). 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 power to cancel the visa should be exercised.Consideration of discretion There are no matters specified in the Act or Migration Regulations 1994 (the 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.[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) (1979) 2 ALD 634.[2] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Vishnumolakala 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 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].

Decision

Reasons for decision

Whether there are mandatory legal consequences to a cancellation decision whether indefinite detention is a possible consequence of the cancellation decision, if a person cannot be removed from Australia consistently with Australia’s non-refoulement obligations; whether there are provisions in the Act which prevent the person from making a valid application for a visa without the Minister personally intervening (for example, s.46A, s.46B, s.48, s.48A, s.91E, s.91K and s.91P of the Act); and whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and liable to be detained under s.189, and liable for removal under s.198. The applicant is currently on a bridging visa as a result of the current review process. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow him to remain in Australia. If that is the case, he has the opportunity to depart Australia. Whilst his failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision. The Tribunal is mindful that s.48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s.116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visa, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore. The Tribunal accepts that the applicant may be required to depart Australia in order to apply for a Subclass 186 or 482 visa. The Tribunal is satisfied that the applicant will not be prevented by Public Interest Criterion (PIC) 4013 from applying for a temporary work visa once he finds a new employer who is approved as a standard business sponsor and has an approved business nomination in relation to the applicant.Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation 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). There is no 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 Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s visa.Other relevant matters

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 power to cancel the visa should be exercised.Consideration of discretion There are no matters specified in the Act or Migration Regulations 1994 (the 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.[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) (1979) 2 ALD 634.[2] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Vishnumolakala 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 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.The purpose of the visa holder’s travel to and stay in Australia The Subclass 482 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. The Tribunal finds that the purpose of the applicant’s stay in Australia was to work as a Chef on a temporary basis. The applicant ceased his employment at the sponsoring business on 3 July 2019 because he wanted to find a better job and because the owners did not want him there. The applicant decided to remain in Australia. The Tribunal accepts that the applicant managed to find new employment at Maharajas Kitchen Pty Ltd in May 2020. This entity nominated the applicant for a Subclass 186 visa by lodging an ENS nomination application under the Direct Entry stream with the Department on 11 June 2020. However, Maharajas Kitchen Pty Ltd did not sponsor and/or nominate the applicant for a temporary work visa.