Cajegas (Migration) - [2021] AATA 2485

Cajegas (Migration) [2021] AATA 2485 (29 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Linolito Cajegas
Mrs Jennylyn Cajegas
Mr Lowell Jay Cajegas
Miss Hannah Mae Cajegas
Miss Jennielle Ann Cajegas
Miss Abigail Gabrielle Cajegas
CASE NUMBER:  2101305
HOME AFFAIRS REFERENCE(S):          BCC2020/1425221
MEMBER:Vanessa Plain
DATE:29 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 408 (Temporary Activity) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 29 June 2021 at 2:23pm
CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) –ceased employment – sponsor terminated employment and withdrew support – conflicting and uncorroborated allegations and Fair Work claims given no weight – discretion to cancel visa – visa has expired in any case – applicant currently volunteering for another employer which intends to sponsor and employ – members of family unit – decision under review set aside for first applicant, no jurisdiction for other applicants
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), (3), 140(1), 348, 359A
Migration Regulations 1995 (Cth), Schedule 8, condition 8107(1)(a)
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 4 February 2021 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 408 (Temporary Activity) 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(1)(a) on the basis that the applicant ceased to be employed by the employer in relation to which the visa was granted. 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 to sixth named 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 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 to sixth named applicants.
The applicants appeared before the Tribunal on 24 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Dr Worsfold.
The applicants were…

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 Cajegas (Migration)

Details

AGLC: Cajegas (Migration) [2021] AATA 2485
Case: [2021] AATA 2485
Decision Date: 29 June 2021

CaseChat Overview and Summary

This matter concerned an appeal by the applicant against the cancellation of their Temporary Activity (Class GG) visa, subclass 408 (Temporary Activity). The dispute arose after the applicant's sponsor, the Christian Community Church Morwell, terminated their employment and withdrew support, leading to the cancellation of the visa under section 116(1)(b) of the Migration Act 1958 (Cth) for failing to comply with visa condition 8107. The applicant argued that their sponsor had not met their employment obligations and that they intended to lodge a complaint with Fair Work Australia. The applicant also presented evidence of ongoing financial allowance from the sponsor for a period after the stated cessation of employment.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Act was made out, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to consider the conflicting allegations regarding the cessation of employment and the sponsor's obligations, as well as the applicant's subsequent employment with another church, City West Church in Brisbane, which intended to sponsor and employ them. The Tribunal also had to assess the potential consequences of cancellation, including the impact on the applicant and their family members, and consider Australia's international obligations.

The Tribunal found that the ground for cancellation under section 116(1)(b) was established, as the applicant had ceased to be employed by the sponsor in relation to which the visa was granted. However, the Tribunal exercised its discretion not to cancel the visa. This decision was based on several factors, including the applicant's demonstrated intention to continue working in Australia with a new sponsor, the integral role they played in the operations of City West Church, and the potentially manifestly unfair consequences of cancellation given the circumstances. The Tribunal also noted that the applicant was not prevented by PIC 4013 from re-applying for a subclass 408 visa.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa. The decision also noted that there was no jurisdiction for other applicants, presumably family members, in this review process.

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 (1)(a) of condition 8107 attached to their subclass 408 (Temporary Activity) visa, which states:“8107(1) If the visa is not a visa mentioned in subclause (3) or (4), and was granted to enable the holder to be employed in Australia, the holder must not: (a)Cease to be employed by the employer in relation to which the visa was granted; or The delegate’s decision record of 4 January 2021 provides as follows:“On 15 March 2019, the visa holder was granted a Temporary Activity (subclass 408) visa to undertake a nominated position as Church Worship Leader / Music Director at the Christian Community Church Morwell. Condition 8107 was applied to his visa.On 7 April 2020, the Christian Community Church Morwell (CCCM) notified this Department that the visa holder’s employment with them formally ceased on 28 March 2020. The CCCM also advised that although employment had ceased on 28 March 2020, ongoing remuneration and accommodation were offered to the visa holder for the five weeks following cessation of his employment, which ended on 2 May 2020.On 23 April 2020 the visa holder’s Migration Agent Lauri Stewart, wrote to the Department advising that the visa holder’s sponsor had not met their employment obligations and as such the visa holder was intending to lodge a complaint with Fair Work Australia. Ms Stewart stated that the visa holder did not consider his employment to have ceased as he had not been formally notified of termination by his sponsor. Ms Stewart provided a bank statement citing a financial allowance paidinto the visa holder’s account on 3 April 2020, as evidence of his ongoing employment.While I have considered the information provided by the visa holder’s Migration Agent on 23 April 2020, I consider too the information provided by the Christian Community Church Morwell, which confirmed the termination of the visa holder’s employment and stated that as of 2 May 2020, all support, including remuneration and accommodation, had ceased.Based on this information, it appears the sponsor has: withdrawn their support; the visa holder is no longer employed with the Christian Community Church Morwell; and he has not received any form of remuneration from them since 2 May 2020.”

Decision

Reasons for decision

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 408 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 408 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 subclass 408 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. 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). The applicants’ children reside in Australia with him and their visas are consequently cancelled as a result of s 140 of the Act. There is no evidence before the Tribunal to indicate that the applicants’ children would not return home to the Philippines with the applicant. The Tribunal gives this consideration some minor weight in favour of cancelling the visa.The impact of any victims of family violence

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 On 15 March 2019, the applicant was granted his current Temporary Activity - Religious Work (subclass 408) visa which included his family members. The family arrived in Australia on 4 April 2019. Based upon the documents referred to above, the Tribunal finds that the applicant was employed by CCCM as a music director/co-ordinator by his sponsor, CCCM immediately following his arrival in Australia and he maintained this position until early May 2020, when Mr Harvey on behalf of CCCM terminated the applicant’s employment. The applicant’s purpose for being in Australia was, until the time of his termination, in line with the intention of the grant of his visa. However, as his employment was terminated, he did not meet the intention of the Temporary Activity visa on and from that time. However, it is plain that the applicant has demonstrated that he has obtained work at another Church, City West Church in Brisbane which has offered him employment. The Tribunal places significant weight upon the oral evidence of Dr Worsfold, who informed the Tribunal that he had been seeking to fill the vacancy for years and until the applicant had applied, the position was vacant for many years. He stated that the applicant was integral to the operation of City West Church.