Juhasz (Migration) - [2021] AATA 3905

Juhasz (Migration) [2021] AATA 3905 (30 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Akos Attila Juhasz
Mrs Katalin Agnes Drucker
Ms Skylar Ruby Yuhas
CASE NUMBER:  2013524
HOME AFFAIRS REFERENCE(S):          BCC2019/6983104
MEMBER:Amanda Upton
DATE:30 September 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 30 September 2021 at 2:08pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – applicant did not commence employment within 90 days – conflict regarding salary – no further employment or sponsor – family hardship – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 140, 348, 360
Migration Regulations 1994, Schedule 8; Condition 8607
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 26 August 2020 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).
The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had breached condition 8607(4)(b) as he did not commence employment for his sponsoring employer within 90 days after the grant of his Temporary Skill Shortage (subclass 482) visa (28 October 2019). 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.
On Monday 26 April 2021, the applicant wrote to the Tribunal by email and indicated that he did not wish to attend a hearing in person and consented to a decision being made on the papers. In this correspondence he attached the decision and notification of the decision made by the Department. He then sent a further email containing further evidence for the consideration of the Tribunal. The material provided to the Tribunal appears to replicate that which was given to the Department in response to the Notification of Intention to Cancel the…

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 Juhasz (Migration)

Details

AGLC: Juhasz (Migration) [2021] AATA 3905
Case: [2021] AATA 3905
Decision Date: 30 September 2021

CaseChat Overview and Summary

This matter concerned an application for review of a decision to cancel the first applicant's Subclass 482 (Temporary Skill Shortage) visa. The applicant had been granted the visa on 28 October 2019, with an expiry date of 28 October 2021, for the purpose of working as an Art Teacher (private tuition) for an approved sponsor, FC Art Pty Ltd. The dispute arose because the applicant did not commence employment within 90 days of the visa being granted, as required by visa condition 8607(4)(b). The Tribunal, presided over by Amanda Upton, was required to determine whether the ground for cancellation existed and, if so, whether the visa should be cancelled.

The Tribunal was required to consider whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was made out, which relates to the holder's non-compliance with a visa condition. Specifically, the Tribunal had to assess if the applicant failed to commence employment within 90 days of the visa grant. If this ground was established, the Tribunal then had to exercise its discretion as to whether to cancel the visa, taking into account all relevant circumstances, including government policy and submissions made by the applicant.

The Tribunal found that the applicant had indeed failed to comply with visa condition 8607(4)(b) by not commencing employment within 90 days of the visa grant. The applicant acknowledged this non-compliance. The Tribunal then considered its discretion, noting that while it could be guided by policy documents such as the Department’s Procedures Advice Manual (PAM3), it was not bound by them, as they are administrative guides and cannot extend beyond the wording of the legislation. The Tribunal weighed the applicant's history of visa applications and grants, including previous student and dependent visas, and the fact that the Subclass 482 visa was granted for a specific skilled occupation. Crucially, the Tribunal noted that almost two years after the visa grant, there was no evidence that the applicant had obtained further employment or an alternative sponsor, and his purpose of travel was no longer consistent with the visa.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 482 visa. The Tribunal stated it had no jurisdiction concerning any other applicants.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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?s.116(1)(b) - non-compliance with conditions 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 8607 attached to the applicant’s visa. At 8607(4)(b) this condition requires that the visa holder must commence employment within 90 days after the applicant’s visa was granted. The applicant was granted a subclass 482 visa on 28 October 2019. It expires on 28 October 2021. The standard business sponsor who nominated the applicant in the most recently approved nomination for the visa was FC Art Pty Ltd whose nomination was approved on 18 September 2019. The Department decision record indicates that the applicant agreed that there were grounds for cancellation. The Tribunal considers that the information provided by the applicant to the Tribunal also supports this position. 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 visa should be cancelled.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. 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. 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 applicant’s travel and stay in Australia.

Decision

Reasons for decision

Considering the circumstances as a whole however, the Tribunal concludes that the visa should be cancelled.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.Amanda UptonMember

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 visa should be cancelled.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. 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. 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 applicant’s travel and stay in Australia. The applicant arrived in Australia on 4 December 2013 as a dependent holder of a Subclass 570 student visa. He remained in Australia on two dependent subclass 572 visas between 23 October 2015 and 21 December 2016 in order to accompany his wife whilst she was studying. The applicant was included as a dependent visa holder on a Regional Sponsored Migration Scheme, subclass 187 visa. This application was refused on 31 August 2018 and at the time of the Department’s decision was pending review before the Tribunal. The applicant remained on bridging visas until the grant of his subclass 482 visa on 28 October 2019. The applicant was granted his subclass 482 visa for the purposes of working in Australia for an approved sponsor in a skilled occupation that could not be filled from within the Australian workforce. This was to work as an Art Teacher (private tuition). There is no evidence before the Tribunal that the applicant has obtained further employment or an alternative sponsor since he received his subclass 482 visa, almost 2 years ago .The Tribunal notes that the applicant had indicated to the Department that he had some interest from prospective schools in relation to employment as an art tutor. This is also reflected in the information that the applicant provided to the Tribunal. The applicant was hoping that one of these interested schools would sponsor him. Given that the applicant has not commenced work in the capacity for which he was granted the visa, the Tribunal considers that his purpose of travel and stay in Australia is no longer consistent with the grant of that visa. The Tribunal gives this factor weight in favour of cancellation of the visa.The extent of compliance with visa conditions