Bowring (Migration) - [2018] AATA 74

Bowring (Migration) [2018] AATA 74 (9 January 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Lewin Peter Bowring
CASE NUMBER:  1718289
DIBP REFERENCE(S):  BCC2015/1647831
MEMBER:Warren Stooke AM
DATE:9 January 2018
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 09 January 2018 at 11:54am

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled) ) – Previously held multiple working holiday visas – Employment terminated with original approved sponsor – Actively sought a new employer – Applicant was not notified of the Department’s original decision – Discretionary factors – Must have otherwise been entitled to the visa applied for – Left Australia to attend a family funeral – Currently holding a bridging visa – New employer willing to sponsor the applicant – Skills in high demand – Letters of support from new employer
LEGISLATION
Migration Act 1958, ss 45, 46, 48, 65, 65(1)(a) ,116, 116(1)(b),116(3), 140M(1)
Migration Regulations 1994, rr 2.12,2.75, 2.75(2)(a), Schedule 1 Item 1223A Schedule 2 cls 457.211 , 457.223 Schedule 3 Criteria 3003, 3004 ,3005 Schedule 8 Condition 8107
CASES
Quan v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1254
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 February 2017 to cancel the applicant’s Subclass 457 Temporary Business Entry (Class UC) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with condition 8107. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant currently holds a Bridging E (Class WE) visa with full work rights conferred.
It should be noted that this matter was referred to the Member, as presently constituted, on the basis of no jurisdiction, given that the applicant had not responded to the delegate’s decision of 27 February 2016 within the required period of time. Following an investigation, the Tribunal was satisfied that the applicant had not been properly notified of the delegate’s decision in this matter, with the decision being sent to both an incorrect postal address and incorrect email address. Accordingly, the Tribunal accepted the submissions of the applicant’s representative that the matter should be listed for hearing and that the appeal application lodged on 8 August 2017 be heard. As such, the Tribunal is satisfied that the application has been lodged within time for the purposes of this review.
The applicant appeared before the Tribunal on 15 December 2017 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing on 15 December 2017 and furnished further written submissions on 8…

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 Bowring (Migration)

Details

AGLC: Bowring (Migration) [2018] AATA 74
Case: [2018] AATA 74
Decision Date: 9 January 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister for Immigration and Border Protection to cancel the subclass 457 (Temporary Work (Skilled)) visa of the applicant, Mr. Bowring. The applicant had previously held multiple working holiday visas and his employment with his original approved sponsor was terminated. He subsequently sought new employment and was willing to be sponsored by a new employer.

The Tribunal was required to determine whether the delegate's decision to cancel the applicant's visa was the correct and preferable exercise of discretion. This involved considering whether the applicant would have otherwise been entitled to the visa he applied for, and balancing various discretionary factors, including the applicant's efforts to find new employment, his departure from Australia to attend a family funeral, his current bridging visa status, and the willingness of a new employer to sponsor him for a role in a high-demand skill area.

The Tribunal reasoned that while policy guidelines, such as those in PAM3, are advisory and do not create legally binding requirements, they can inform the exercise of discretion. The Tribunal considered the applicant's proactive steps in seeking new employment and the support from a prospective sponsor. Balancing these factors against the reasons for cancellation, the Tribunal concluded that the correct and preferable exercise of its discretion favoured setting aside the cancellation decision.

The Tribunal set aside the delegate's decision to cancel the applicant's subclass 457 visa and substituted a decision not to cancel the 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.Warren Stooke AMMember[1] Scott v Commercial Hotel Merbein Pty Ltd[1930] VLR 75, Irvine CJ at [30] “though it is not to be conclusive, the employment of different language in the same Act may show that the legislature had in view different objects.” See also however Acts Interpretation Act 1901 (Cth), ss.15AC. [2] See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634 and Durzi v MIMIA[2006] FCA 1767[3]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.

Ratio Decidendi

Legal Principle Established

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