Kaur (Migration)

[2019] AATA 3985

Kaur (Migration) [2019] AATA 3985 (12 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Paramjit Kaur

CASE NUMBER:  1811143

HOME AFFAIRS REFERENCE(S):           BCC2017/4499071

MEMBER:Sheridan Lee

DATE:12 June 2019

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 12 June 2019 at 4:01pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – applicant ceased employment over 60 days – occupation of Cook – sponsor’s business ceased operations – three further nominations lodged for applicant – approved nomination for position pending visa approval – considerable efforts to secure a new sponsor – decision under review set aside          

LEGISLATION

Migration Act 1958, ss 116, 140, 363

Migration Regulations 1994, Schedule 2 cl 457.223; Schedule 8 Condition 8107

CASES

Alimi v Minister for Immigration & Anor [2007] FMCA 1520

Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459

Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767

Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168

Moller v Minister for Immigration and Citizenship [2007] FMCA 168

Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492

Visnumolakala v Minister for Immigration [2006] FMCA 1209

Zhao v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1235           

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 18 April 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) 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 failed to comply with visa condition 8107(3)(b) of her Subclass 457 visa. Visa condition 8107(3)(b) requires that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 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. The applicant appeared before the Tribunal on 15 February 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. 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

5. 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.

   Background

6. On 22 September 2016, the Department of Home Affairs approved a nomination by Awadesh Bakery and Restaurant Pty Ltd to sponsor the applicant for a Subclass 457 visa in the occupation of Cook. The applicant was subsequently granted a Subclass 457 visa on the basis that she was sponsored by a standard business sponsor under subclause 457.223(4). The Subclass 457 visa was granted subject to mandatory condition 8107. Visa condition 8107(3)(b) required that if the applicant ceased employment, the period must not exceed 60 consecutive days.

   Notification procedures

7. The Act sets out the procedure for cancelling visas. Notice of the grounds on which cancellation is being considered must be given and the visa holder invited to show either, that the grounds do not exist, or that there are reasons why the visa should not be cancelled.[1] In addition, a visa may not be cancelled before the visa holder has been given a notice of cancellation that includes information relevant to the cancellation.

   [1]     Section 119.

8. The onus of establishing the facts which may lead to cancellation rests with the Minister, or on review, with the Tribunal. Although the visa holder must be invited to show that the ground for cancellation does not exist, or if it does, that there is a reason why the visa should not be cancelled, this does not place an onus on the visa holder to rebut the possible ground of cancellation identified.[2]

   [2]     See Zhao v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1235 at [25] and [32].

9. On 15 January 2018, the Department sent the applicant a Notice of Intention to Consider Cancellation (‘the notice’) noting that the Department had received advice that the applicant had ceased employment with Awadesh Bakery and Restaurant on 3 August 2017. As a result, the Department informed the applicant in the relevant notice that her Subclass 457 visa might be cancelled under subsection 116(1)(b) of the Act because she may have breached condition 8107. The notice invited the applicant to comment on why her visa should not be cancelled, and she responded to this invitation on 22 January 2018.

10. Accordingly, I find that the applicant was given a notice of intention to consider cancellation in relation to her Subclass 457 visa. I also find that this notice sets out the grounds of the alleged non-compliance in respect of condition 8107 as required under the legislation.

    Does the ground for cancellation exist?

11. 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. Specifically, subclause 8107(3) applies because the Department granted the applicant a subclass 457 visa on the basis that the applicant met the requirements of subclause 457.223(4).

12. Relevantly, condition 8107 broadly required that the applicant only work in a position in the business of the sponsoring employer. As outlined, condition 8107(3)(b) required that the applicant not cease employment for more than 60 consecutive days.

13. At the hearing, the applicant confirmed that she ceased work with her original sponsor in August 2017 and has not worked since that time. She was advised by the owner, Benepuria Awadesh, that the business was not successful and he planned to sell it. Mr Awadesh offered to assist the applicant to find a new sponsor. On 28 October 2017, a new nomination application was lodged in respect of the applicant by Rajmandeep Pty Ltd, however the application was later withdrawn.

14. The applicant gave evidence that she then applied for jobs through Careerone.com and found another prospective employer, Mocca Garden Pty Ltd. The business lodged two nomination applications, on 13 and 22 November 2017. Both nomination applications were refused by 10 January 2018 and on 15 January 2018 the Department issued the applicant with the notice of intention to cancel her Subclass 457 visa.

15. As such, 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. The circumstances that gave rise to the cancellation as put forward by the applicant are considered below.

    Consideration of discretion

16. 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’.

17. 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.[3]

    [3]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168; Visnumolakala 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 Affairs2006] 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]

18. The applicant was issued a Subclass 457 visa on 14 December 2016 to enable her to remain in Australia and work for her sponsoring employer in the occupation of Cook. The purpose of the Subclass 457 visa scheme was to fill genuine shortages in the Australian skilled job market and the occupation of Cook is included on the list of occupations which have been designated for that purpose.

19. In written submissions dated 5 November 2018, the applicant advised the Tribunal that upon losing her position she began actively seeking employment and a new nomination application by RRK Group Pty Ltd for the occupation of Cook has subsequently been approved. A copy of a notification of approval of nomination issued by the Department on 20 June 2018 was provided, nominating the applicant for the position.

20. At the hearing, the applicant gave evidence that the position is located in a restaurant called Spicy Affair in South Melbourne. She is yet to commence in the role as she has no working rights under her bridging visa conditions. However, the position is available to her as soon as her visa issues are resolved.

21. The approved nomination is consistent with the purpose of the visa scheme for which she was approved. If her visa were not cancelled she would continue to work within an approved occupation in compliance with the ongoing visa conditions. Despite the gap of more than 60 days, I have placed considerable weight on this factor in favour of the applicant when considering whether to exercise the discretion to cancel the applicant’s visa. In particular, I note that the nominee has demonstrated considerable efforts to secure a new sponsor.

22. There is no information on the departmental file indicating that the applicant has had any compliance issues in the past. This weighs against exercising the discretion to cancel.

23. The Tribunal acknowledges that upon the cancellation of her visa, the applicant would become an unlawful non-citizen and be liable to be detained under s189, and liable for removal under s198 if she does not depart voluntarily. The applicant would also face restrictions on making a valid visa application onshore as a result of the cancellation of her visa.

24. Nevertheless, the Tribunal notes that these are the intended consequences of the legislation when a visa is cancelled on the grounds of s.116. Further, the Tribunal notes that the applicant would not be subject to restrictions on applying for or being granted a new visa from overseas.

25. 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).  

26. There is no evidence before me to suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements.

27. Therefore, I am satisfied that there is little in these matters to weigh against exercising the discretion to cancel.

28. The applicant demonstrated a willingness to seek new employment in order to continue working in her nominated occupation. If her visa were to continue, the Tribunal considers that the purposes of the visa program would be upheld.

29. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

30. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Sheridan Lee
    Member