Chhetri (Migration)

Case [2021] AATA 4653

Chhetri (Migration) [2021] AATA 4653 (25 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ravi Chhetri
Mrs Anamika Chhetri
Miss Anaira Chhetri

CASE NUMBER:  2107678

HOME AFFAIRS REFERENCE(S):          BCC2020/2899556

MEMBER:Antonio Dronjic

DATE:25 October 2021

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 other applicants.

Statement made on 25 October 2021 at 10:07am

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482– applicant has not complied with condition 8607 – applicant ceased employment – prospective employer did not sponsor or nominate the applicant for the position within their business – decision under review affirmed – no jurisdiction with respect to the other applicants

LEGISLATION
Migration Act 1958, ss 116, 140, 348
Migration Regulations 1994, Schedule 2

CASES

COT15 v MIBP (No 1) (2015) 236 FCR 148
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision dated 8 June 2021 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).

  2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant breached condition 8607(5) of Schedule 8 to the Regulations, 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.

  3. 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 jurisdiction with respect to them.

    Background to the cancellation of the applicant’s visa

  4. The decision record of 8 June 2021 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 January 2020, the applicant was granted a Subclass 482 visa, to remain valid until 24 January 2022.

    ·The standard business sponsor (SBS) who most recently nominated the applicant to work as a cook was Mesa 3 Pty Ltd (the sponsor).

    ·On 22 November 2020, the applicant ceased his employment…

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Details
AGLC
Chhetri (Migration) [2021] AATA 4653
Case
[2021] AATA 4653
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the cancellation of a Temporary Skill Shortage (Class GK) visa, Subclass 482, held by the applicant, Mr. Chhetri. The dispute arose because Mr. Chhetri ceased employment with his sponsoring business, Mesa 3 Pty Ltd, and the period he was unemployed exceeded the 60 consecutive days permitted by condition 8607(5) of his visa. The AAT also noted that the visas of Mr. Chhetri's wife and daughter were automatically cancelled as a consequence of his visa cancellation, but the Tribunal lacked jurisdiction to review their cancellations as they were not the subject of a specific decision.

The primary legal issue before the Tribunal was whether the delegate’s decision to cancel Mr. Chhetri’s visa should be affirmed. This required the Tribunal to determine if the ground for cancellation existed, specifically whether Mr. Chhetri had failed to comply with condition 8607(5) of his visa. If the ground for cancellation was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that Mr. Chhetri did not comply with condition 8607(5) as he ceased employment on 22 November 2020 and remained unemployed for a period exceeding 60 consecutive days. Consequently, the ground for cancellation under section 116(1)(b) of the Migration Act 1958 was satisfied. In exercising its discretion, the Tribunal considered the applicant's submissions, including claims of abuse and exploitation by his former employer, and the potential for future sponsorship by another business. However, the Tribunal also had regard to the purpose of the Subclass 482 visa, which is for temporary skilled work, and the fact that Mr. Chhetri was not permitted to work in Australia on his current bridging visa. The Tribunal affirmed the delegate's decision to cancel Mr. Chhetri's visa.

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 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 jurisdiction with respect to them.Background to the cancellation of the applicant’s visa The decision record of 8 June 2021 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 January 2020, the applicant was granted a Subclass 482 visa, to remain valid until 24 January 2022.·The standard business sponsor (SBS) who most recently nominated the applicant to work as a cook was Mesa 3 Pty Ltd (the sponsor).·On 22 November 2020, the applicant ceased his employment with the sponsoring business.·A notice of intention to consider cancellation (NOICC) was issued on 20 April 2021.·On 24 April 2021 and 7 May 2021, the applicant responded to the NOICC. He conceded that he breached condition 8607(5), as the period during which he ceased employment exceeded 60 consecutive days.·On 8 June 2021, 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 14 June 2021 for review of the visa cancellation and with his application submitted a copy of the primary decision record. On 20 September 2021, 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 video hearing scheduled for 21 October 2021. On 18 and 19 October 2021, the applicant’s representative submitted:·Legal submissions;·Applicant’s Statutory Declaration dated 19 October 2021; and·Undated letter from Mr Papagelou, the owner of Lemoncello restaurant located in Cairns, stating that the business is willing to sponsor Mr Chhetri if the Tribunal reinstates his visa. The applicant appeared before the Tribunal on 21 October 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal 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. 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 22 November 2020. 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

Whilst the applicant’s wife’s and daughter’s visas were also cancelled as a consequence of this cancellation, the Tribunal notes that the consequence will not result in separation of the applicant from his wife and child.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 can 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 of the Regulations 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 is satisfied that the applicant will not be prevented by Public Interest Criterion (PIC) 4013 of Schedule 4 to the Regulations 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. 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.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).

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 cook on a temporary basis at Mesa 3 Pty Ltd. The applicant ceased his employment at the sponsoring business on 22 November 2020. He claims that he was subjected to repeated abuse and exploitation by the management of the sponsoring company. The applicant decided to remain in Australia as a holder of a bridging visa E that was subject to a no-work (8101) condition. In June 2021, the applicant applied to the Department to have the no-work condition removed from his bridging visa. According to his evidence, this application was not successful. He is still not allowed to work in Australia.