Boparai (Migration) - [2021] AATA 2402

Boparai (Migration) [2021] AATA 2402 (28 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Harjot Singh Boparai
Mrs Sandeep Kaur
CASE NUMBER:  2018163
HOME AFFAIRS REFERENCE(S):          BCC2020/2258888
MEMBER:Vanessa Plain
DATE:28 June 2021
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 second named applicant.

Statement made on 28 June 2021 at 06:17pm
CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – work in other than most recently approved nominated occupation – chef working as heavy vehicle driver for unrelated company – circumstances not reasonably foreseeable – stood down from work as chef during COVID-19 restrictions – financial necessity and emotional hardship – effect of restrictions on hospitality sector – re-employed by sponsor when restrictions eased – consequences if cancellation affirmed – member of family unit – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107
CASES
Rani v MIMA (1997) 80 FCR 379
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Tien v MIMA (1998) 89 FCR 80
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 15 December 2020 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 breached condition 8107(3)(a)(i) on the basis that the applicant did not work only in the occupation listed in the most recently approved nomination. 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.
The applicants appeared before the Tribunal on 24 June 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicants were represented…

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 Boparai (Migration)

Details

AGLC: Boparai (Migration) [2021] AATA 2402
Case: [2021] AATA 2402
Decision Date: 28 June 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the Temporary Business Entry (Class UC) visa, subclass 457, held by Mr. Boparai. The dispute arose because Mr. Boparai, nominated to work as a chef for Super 8 & Co Pty Ltd, was identified working as a heavy vehicle driver for an unrelated company, Rocke Brothers, and its subcontractor M&S Group Pty Ltd. The Department of Home Affairs had cancelled his visa on the grounds that he had not complied with condition 8107(3)(a)(i) of his visa, which required him to work only in his nominated occupation.

The Tribunal was required to determine whether the ground for cancellation under s.116(1)(b) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal considered whether Mr. Boparai had failed to comply with the condition of his visa by working in an occupation other than that for which it was granted. If the ground for cancellation was established, the Tribunal then had to weigh all relevant circumstances, including those raised by the applicant and relevant policy guidelines, in deciding whether to affirm or set aside the cancellation.

The Tribunal found that the ground for cancellation under s.116(1)(b) was indeed made out, as Mr. Boparai had worked as a heavy vehicle driver for a company unrelated to his sponsor. However, the Tribunal then exercised its discretion to set aside the cancellation. It reasoned that Mr. Boparai's deviation from his nominated occupation was due to financial necessity and emotional hardship caused by the COVID-19 pandemic, which had severely impacted the hospitality sector. He had been stood down from his chef position by his sponsor due to legal impediments to business operations and resumed his chef duties when restrictions eased. The Tribunal noted that the sponsor had indicated Mr. Boparai remained an employee and that being stood down due to COVID-19 would not necessarily lead to visa cancellation. Furthermore, the Tribunal considered the significant consequences of cancellation, including limitations on future visa applications and the potential for detention and removal, which it deemed manifestly unfair in these circumstances. The Tribunal also found that Mr. Boparai was not prevented by PIC 4013 from re-applying for a temporary work visa, as a subclass 457 visa was not specified in the relevant schedule.

Consequently, the Tribunal set aside the decision to cancel Mr. Boparai's visa.

Orders

Orders of the court

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Background

Background to the litigation

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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). 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 is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 attached to the applicant’s visa. The Delegate’s decision record contends that the applicant has not complied with subclause (3)(a)(i) of condition 8107 attached to their subclass 457 (Temporary Work (Skilled)) visa, which states:“8107(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) (as in force before 18 March 2018):(a)the holder:(i) must work only in the occupation listed in the most recently approved nomination for the holder; and The Delegate’s decision record of 15 December 2020 provides as follows:“The standard business sponsor who nominated the visa holder in their most recently approved nomination for the visa is Super 8 & Co Pty Ltd (the sponsor), who applied to nominate him to work at 303 Grattan Street, Melbourne, VIC in the occupation of Chef (ANSCO 351311). The delegate assessing the application determined the tasks associated with the visa holder’s position were appropriate tasks commensurate with the occupation of Chef and approved the nomination on 08 September 2017. On 29 August 2020, Supply Chain Enforcement identified the visa holder during truck stop activity undertaken by Australian Border Force (ABF) at ACFS Victoria. During this interaction, the following information was obtained: ● The visa holder was driving for transport company, Rocke Brothers (ABN: 60 100 734 469), as a heavy vehicle/truck driver. ● AusCheck records reveal his MSIC was issued on 01 October 2019 under the Employer Name of MANDS Group P/L. ● Further information indicates that MANDS Group comes under the following entity: M&S Group Pty. Ltd. trading as M&S Transport Solutions (ABN 27 615 870 454). ● The listed address for this business is 15 Tourmaline Street, Tarneit, VIC 3029 ● Further information obtained by the ABF indicates that M&S Group Pty. Ltd. is a subcontractor of Rocke Brothers. ● Information available to the Department indicates he is employed by M&S Group Pty Ltd, in the position of heavy vehicle driver. ● He holds a heavy vehicle driver’s licence for the state of Victoria (class MC), under licence number 097616515, and which expires 17 August 2021. ● M&S Group Pty Ltd and/or Rocke Brothers Pty Ltd do not appear to be associated to Super 8 & Co Pty Ltd. ● There are no records to indicate either the visa holder or his Registered Migration Agent have contacted the Department about the change of employment.”

Decision

Reasons for decision

As there is no evidence before the Tribunal as to any consequential cancellations, the Tribunal does not give this factor any weight for or against a decision to cancel the visa for this consideration.Legal consequences of a decision to cancel the visa 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 them to remain in Australia. If that is the case, they have the opportunity to depart Australia. Whilst their failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision. The Tribunal observes that the applicant’s Subclass 457 visa was cancelled under s.116(1)(b) of the Act because they breached the 8107 condition imposed on their visa. Relevantly, PIC 4013(2)(b) prescribes that a person is affected by a risk factor if a visa previously held by the person was cancelled under s.116 of the Act if the visa was of a subclass specified in Column 2 of Part 2 of Schedule 4. The Tribunal finds that a Subclass 457 visa is not a visa specified in the relevant Schedule. Accordingly, the Tribunal is satisfied that the applicant is not prevented by PIC 4013 from re-applying for a temporary work visa. The Tribunal is unable to make findings as to whether the applicant will be affected by PIC 4014 as this will depend on the way the applicant leaves Australia. However, if the applicant is affected by PIC 4014, that is the intended consequence of the legislation. 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 visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore. If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if they do not voluntarily depart Australia. These are mandatory and intended consequences of the legislation. However, given the matters set out above, the Tribunal considers that theses consequence in the circumstances of this case would be manifestly unfair. The Tribunal therefore gives this consideration some weight against cancelling the visa.Australia’s international obligations 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).

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal finds 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 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 and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.[2] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429; Lobo v Minister for 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.Purpose of applicant’s travel to and stay in Australia The Subclass 457 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 for the Super 8 & Co Pty Ltd restaurant as a chef. The delegate’s decision record reveals that the department was notified by the sponsor on 23 November 2020 that the applicant had not ceased his nominated work duties as a chef and remains an employee and employee of the business. The applicant was merely ‘stood down’ from his employment due to the “legal impediments to the conduct of its business due to COVID-19.” The further submission from Mr Sakkas makes it plain that he wishes the applicant to resume his employment at the restaurant if is visa status permits and it is plain that the applicant resumed his duties in late November 2020 in any event. As the department has made it clear that being “stood-down” from employment due to COVID-19 will mean that a visa holder of a subclass 482 or 457 will maintain a valid visa, the Tribunal finds that there is no evidence before it to suggest that the applicant’s original intention for travel to and stay in Australia is not aligned with the intention of his Temporary Work (Skilled) (subclass 457) visa. It is plain that the applicant candidly acknowledges that he worked as a truck driver for a brief period of several months between July 2020 and November 2020 out of financial desperation only.