Kogan (Migration)

[2019] AATA 451

Kogan (Migration) [2019] AATA 451 (15 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Eglantine Pavlona Gratianne Kogan

CASE NUMBER:  1811777

HOME AFFAIRS REFERENCE(S):           BCC2018/509530

MEMBER:Sheridan Lee

DATE:15 February 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 15 February 2019 at 4:42pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – applicant ceased employment over 60 days – occupation of Café and Restaurant Manager – new sponsor employed applicant after timeframe – difficulties recruiting quality regional hospitality managers – relationship with an Australia citizen – decision under review set aside    

LEGISLATION

Migration Act 1958, ss 116, 119, 189, 198
Migration Regulations 1994, Schedule 2 cl 457.223; condition 8107

CASES

Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429
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 20 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. As it applies in this case, 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 was represented in relation to the review by her registered migration agent.

4. For the following reasons, I have concluded that the decision to cancel the applicant’s visa should be set aside. In reaching this decision, I was able to rely on the applicant’s written submissions and proceeded to decision without a hearing.

   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 16 February 2017, the Department of Home Affairs approved a nomination by Seville Pty Ltd to sponsor the applicant for a Subclass 457 visa in the occupation of Café and Restaurant Manager. 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 22 March 2018, the Department sent the applicant a Notice of Intention to Consider Cancellation (‘the notice’) noting that it had received advice from her sponsoring employer that she had ceased employment on 7 July 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 28 March 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. In addition, the response the applicant provided on 28 March 2018 indicated that she understood the nature of the alleged non-compliance.

11. In the circumstances, I consider that the Department provided the applicant with sufficient information to adequately understand and, therefore, respond to the notice of intention to consider cancellation, as required under the legislation.

    Does the ground for cancellation exist?

12. 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).

13. 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.

14. On 7 July 2017, the applicant ceased employment with her sponsoring employer, Seville Pty Ltd, with whom she was employed as a Restaurant Manager at Rice Queen Oriental Diner and Bar. Consequently, on 20 April 2018, the Department cancelled the applicant’s Subclass 457 visa on the basis that she had ceased employment for more than 60 days.

15. In a statement submitted to the Tribunal, dated 6 November 2018, the applicant acknowledges that the facts giving rise to the cancellation as outlined in the cancellation notification were correct – being that she had ceased employment with her sponsoring employer for more than 60 days.

16. As such, I am satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), I must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

17. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. I have 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’.

18. I acknowledge that, whilst I may be guided by policy, I am 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 1429, 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]

19. The applicant was issued a Subclass 457 visa on 16 February 2017 to enable her to remain in Australia and work for her sponsoring employer in the occupation of Café and Restaurant Manager. The purpose of the Subclass 457 visa scheme was to fill genuine shortages in the Australian skilled job market and the occupation of Café and Restaurant Manager is included on the list of occupations which have been designated for that purpose.

20. In written submissions, the applicant outlined that when she ceased employment at Rice Queen she commenced actively seeking employment within Melbourne. At the time she was looking, there were significant changes to the Subclass 457 visa scheme and she felt that this made it more difficult to find an employer willing to go through the nomination process. As a result of the difficulties she faced securing a new employer, the applicant expanded her search to greater Melbourne and Geelong.

21. On 28 March 2018, a new nomination application was made by CBO Management Pty Ltd in respect of the applicant for the occupation of Café and Restaurant Manager. CBO Management operates Centra Hotel, a gastro-pub in Geelong. The nomination application was approved by a delegate of the Minister for Immigration on 10 May 2018.

22. The applicant has been working at Centro Hotel in her nominated occupation for almost 12 months since she ceased employment with her original sponsor. The applicant has supplied the Tribunal with a signed copy of a contract of employment between herself and CBO Management, dated 27 March 2018.

23. Cam O’Keefe, owner of the Centra Hotel, has provided a written statement dated 6 October 2018 outlining the difficulty he has experienced recruiting quality hospitality managers in a semi-rural location. He further outlined his satisfaction with the applicant’s work to date.

24. The applicant’s current employment 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 employer has expressed difficulties filling the role, which have been addressed by the continued employment of the applicant.

25. There is no information on the departmental file indicating that the applicant has had any compliance issues in the past. This weighs in favour of the applicant.

26. The applicant has provided a written statement from her new partner in Australia, Ms Pauline Strapps. Ms Strapps outlines that she is in a relationship with the applicant, who helps with the care of her daughter. She expresses a desire to continue her relationship with the applicant and hopes to move in together in the future.

27. I accept that the applicant and Ms Strapps and her daughter may be upset if the applicant were to return to France, however I do not consider that this would cause significant hardship. The relationship is new, they don’t live together and the applicant is not parent to Ms Strapps child. While I accept that positive personal ties weigh in favour of the applicant, I have given this limited weight in the exercise of the discretion.

28. 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.

29. 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.

30. 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).  

31. 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.

32. Therefore, I am satisfied that there is little in these matters to support the exercise of the discretion in the applicant’s favour.

33. The applicant demonstrated a willingness to seek new employment and move to a country metropolitan area 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.

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

    DECISION

35. 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