Kaur (Migration)

Case [2021] AATA 5214

Kaur (Migration) [2021] AATA 5214 (19 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kulwinder Kaur
Mr Ragbir Singh
Mr Varinder Singh Virk
Mr Gurnoor Singh

CASE NUMBER:  2105629

HOME AFFAIRS REFERENCE(S):          BCC2019/2564923

MEMBER:Antonio Dronjic

DATE:19 October 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 19 October 2021 at 3:41pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Business (Long Stay)) – hearing postponement request – medical certificate – capacity to participate in a video hearing – ground for cancellation – ceased employment with sponsor – consideration of discretion – purpose of visa no longer exist – significant breach of condition – best interest of the children – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348, 362B, 363

Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

CASES
COT15 v MIBP (No 1) (2015) 236 FCR 148
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
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 9 April 2021 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 457 (Business (Long Stay)) 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 first named applicant (the applicant) breached condition 8107(3)(b) of Schedule 8 to the Migration Regulations 1994 (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 9 April 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…

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Details
AGLC
Kaur (Migration) [2021] AATA 5214
Case
[2021] AATA 5214
Decision Date

CaseChat Overview and Summary

This matter concerned the review of a decision to cancel the Subclass 457 (Business (Long Stay)) visa held by the first applicant, Ms Kaur. The other applicants' visas were automatically cancelled as a consequence of the first applicant's visa cancellation, and the Tribunal lacked jurisdiction to review those cancellations. The primary ground for cancellation was that Ms Kaur had ceased employment with her sponsoring business, Job Capital Pty Ltd, on 30 April 2019, and this cessation of employment exceeded the 60 consecutive days permitted by condition 8107(3)(b) of her visa.

The legal issues before the Tribunal were whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised. The Tribunal was also required to consider Ms Kaur's request for a postponement of a scheduled video hearing, which was supported by a medical certificate stating she was unfit for work for two days. The Tribunal had to determine if this certificate sufficiently demonstrated her inability to participate in a video hearing.

The Tribunal found that Ms Kaur had indeed breached visa condition 8107(3)(b) by exceeding the 60-day limit for cessation of employment. Regarding the postponement request, the Tribunal was not satisfied that the medical certificate provided sufficient evidence of her inability to attend a video hearing, as it did not specify the nature of her condition or explain why she could not participate remotely. In considering the exercise of discretion, the Tribunal noted that while policy guidelines could be a useful starting point, they were not legally binding. The Tribunal concluded that the purpose of Ms Kaur's visa no longer existed, as she had ceased employment and remained in Australia without evidence of securing alternative sponsorship. Weighing the reasons for cancellation against the reasons for not cancelling, the Tribunal found that the former outweighed the latter.

Consequently, the Tribunal affirmed the decision to cancel Ms Kaur's Subclass 457 visa. The Tribunal also reiterated that it had no jurisdiction with respect to the other applicants whose visas were cancelled as a consequence of the first applicant's visa cancellation.

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 9 April 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 10 August 2018, 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 Software Engineer was Job Capital Pty Ltd (the sponsor).·On 30 April 2019, the applicant ceased her employment with the sponsoring business.·A notice of intention to consider cancellation (NOICC) was issued on 10 March 2021.·The applicant did not respond to the NOICC.·On 9 April 2021, the delegate proceeded to cancel the applicant’s visa. The applicant applied to the Tribunal on 30 April 2021 for review of the visa cancellation and with her 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 19 October 2021. On 12 and 18 October 2021, two SMS reminders were sent to the applicant about the hearing. On 18 October 2021, the applicant wrote to the Tribunal seeking the postponement of a scheduled hearing. With her request she enclosed a medical certificate dated 18 October 2021 stating that ‘Ms Kaur has a medical condition and will be unfit for work from 18 October 2021 to 19 October 2021 inclusive’. The hearing postponement request contained the wrong file number and for that reason it was brought to Member’s attention on the morning of the hearing on 19 October 2021 at 9 am. Considering the limited information contained in the medical certificate, the presiding Member was not satisfied that the applicant demonstrated that she was unfit to attend a video hearing. In particular, the medical certificate was issued only in relation to the applicant’s incapacity to work and provided no opinion regarding the applicant’s capacity to participate in a video hearing. The medical certificate did not specify the nature of the applicant’s medical condition, future prognosis, or the reasons why the applicant is unable to appear before the Tribunal via video link from the comfort of her own residence.

Evidence

Evidence Before The Court

Having considered the overall circumstances of this matter, as outlined above, the Tribunal determined that it was appropriate to proceed to a decision without taking any further action to allow or enable the applicant to appear before it.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 60 consecutive days. Based on the evidence before it, the Tribunal finds that the applicant ceased employment at the sponsoring business on 30 April 2019. 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 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.[3] 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.[4] [3] See Brennan, J. in Re Drake (No. 2) (1979) 2 ALD 634[4] 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 had 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 (Business (Long Stay)) 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.[3] 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.[4] [3] See Brennan, J. in Re Drake (No. 2) (1979) 2 ALD 634[4] 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 for Job Capital Pty Ltd as Software Engineer on a temporary basis. According to the primary decision record submitted with the review application, the applicant ceased employment at Job Capital Pty Ltd on 30 April 2019. She decided to remain in Australia. No evidence was presented to the Tribunal as to whether she attempted to secure employment with alternate business that was willing and able to nominate her for the position within their business. By declining the Tribunal’s invitation to attend the hearing, the applicant denied herself of an opportunity to present her case. Based on the evidence before it, the Tribunal is not satisfied that, as of the day of the Tribunal’s hearing, the applicant is employed by an Australian company which is an approved standard business sponsor, and which successfully nominated the applicant for a position within the business.