Farwaha (Migration) - [2019] AATA 5859

Farwaha (Migration) [2019] AATA 5859 (28 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Harmandeep Farwaha
Mrs Gurpreet Kaur Gurpreet Kaur
Master Sidak Farwaha
CASE NUMBER:  1901094
HOME AFFAIRS REFERENCE(S):          BCC2018/4190073
MEMBER:Antonio Dronjic
DATE:28 August 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 28 August 2019 at 4:14pm
CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – motor mechanic – ceased employment with sponsor for more than 90 days – resigned due to mistreatment by employer – applicant not paid superannuation contributions – failed to find another approved sponsor – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 16 January 2019 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)(b) as the period during which the applicant ceased employment exceeded 90 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 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 16 January 2019 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 25 January 2016, the applicant was granted a Subclass 457 Business (Long Stay) visa to remain, valid for the period of four years;
·     The standard business sponsor who most recently nominated the applicant to work as a motor mechanic was UT Reservoir Pty Ltd (the sponsor);
·     On 28 February 2018 the applicant ceased his employment with the sponsoring…

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 Farwaha (Migration)

Details

AGLC: Farwaha (Migration) [2019] AATA 5859
Case: [2019] AATA 5859
Decision Date: 28 August 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa of the first named applicant, Mr. Farwaha. The dispute arose after Mr. Farwaha ceased employment with his sponsoring business, UT Reservoir Pty Ltd, on 28 February 2018, and subsequently failed to find another approved sponsor within the prescribed timeframe. The visas of other applicants were automatically cancelled as a consequence of the first applicant's visa cancellation, and the Tribunal determined it had no jurisdiction to review those cancellations.

The primary legal issue before the Tribunal was whether the delegate's decision to cancel Mr. Farwaha's visa should be affirmed. This required the Tribunal to determine if the grounds for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to consider whether Mr. Farwaha complied with condition 8107(3)(b) of his visa, which mandates that the period of cessation of employment must not exceed 90 consecutive days.

The Tribunal found that Mr. Farwaha ceased employment on 28 February 2018 and that this period of unemployment exceeded 90 consecutive days, thereby establishing the ground for cancellation under s.116(1)(b) of the Migration Act 1958. While acknowledging the applicant's submissions regarding mistreatment by his employer and non-payment of superannuation, the Tribunal concluded that these circumstances did not outweigh the reasons for cancellation. The Tribunal considered the applicant's continued presence in Australia and his unsuccessful attempts to secure new sponsorship, noting that his visa would have expired in January 2020 regardless of the cancellation. The Tribunal affirmed the decision to cancel Mr. Farwaha'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 16 January 2019 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 25 January 2016, the applicant was granted a Subclass 457 Business (Long Stay) visa to remain, valid for the period of four years;· The standard business sponsor who most recently nominated the applicant to work as a motor mechanic was UT Reservoir Pty Ltd (the sponsor);· On 28 February 2018 the applicant ceased his employment with the sponsoring business;· A notice of intention to consider cancellation (NOICC) was issued on 19 December 2018;· On 21 December 2018, the applicant responded to NOICC; and· On 16 January 2019, the delegate proceeded to cancel the applicant’s visa. The applicant applied to the Tribunal on 16 January 2019 for review of the visa cancellation and with his application submitted a copy of the primary decision record. On 12 June 2019, 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 28 August 2019. The applicant appeared before the Tribunal on 28 August 2019 to give evidence and present arguments. At the commencement of the hearing he submitted the following documents:·A bundle of Statutory Declarations provided by the applicant’s former customers confirming his employment at the sponsoring business and attesting to the quality of his work;·A copy letter from the Australian Taxation Office (ATO) dated 20 June 2018 as evidence that ATO received the applicant’s query concerning non-payment of superannuation by his former employer;·A copy letter from the Australian Securities and Investment Commission (ASIC) dated 2 October 2018, informing the applicant of change of office holder of the sponsoring business;·A copy letter from ATO dated 9 January 2019, stating the amount of superannuation owed to the applicant by his former employer; and·A copy letter from ATO dated 23 January 2019, stating the amount of superannuation owed to the applicant by his former employer.

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 8107 is attached to the applicant’s visa. This condition in 8107(3)(b) requires that if the holder ceases employment, the period during which such employment ceases must not exceed 90 consecutive days. Based on the evidence before it, including the oral evidence from the applicant, the Tribunal finds that the applicant ceased employment at UT Reservoir Pty Ltd on 28 February 2018. The Tribunal further finds that the period during which the visa holder ceased employment exceeded 90 consecutive days. Accordingly the Tribunal finds that the applicant did not comply with condition 8107(3)(b). 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 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

Having regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.DECISION The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa. The Tribunal has no jurisdiction with respect to the other applicants.Antonio DronjicMember

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 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 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 as a motor mechanic on a temporary basis. The applicant lost his employment on 28 February 2018. The applicant decided to remain in Australia. He claims that February 2018 to February 2019, he attempted to find a new sponsor. He was not successful. In February 2019 he commenced employment as an Uber driver and continues to work for this business to the present day. The Tribunal finds that, as of the day of the Tribunal’s hearing, the applicant is not employed by an Australian company which is an approved standard business sponsor and which successfully nominated the applicant for a position within the business. Based on the evidence before it, the Tribunal finds that the applicant’s visa, but for the cancellation, would have ceased on 25 January 2020 in any case.