Kunwar (Migration) - [2021] AATA 3277

Kunwar (Migration) [2021] AATA 3277 (20 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Rupa Kunwar
Mr Ram Lal Gurung
CASE NUMBER:  2106579
HOME AFFAIRS REFERENCE(S):          BCC2020/2530531
MEMBER:Antonio Dronjic
DATE:20 August 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 second named applicant.

Statement made on 20 August 2021 at 3:16pm
CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – failure to commence employment within 90 days – death of father and mental health – no contact to sponsoring business or employment at any time – discretion to cancel visa – visa ceased in any case – possibility of applying for new visa – automatic cancellation of second applicant’s visa – decision under review affirmed for first applicant, no jurisdiction for second applicant
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), (3), 140(1), 348
Migration Regulations 1994 (Cth), r 2.12, Schedule 4, criterion 4013, Schedule 8, condition 8607(4)
CASES
Alimi v Minister for Immigration [2007] FMCA 1520
Chow v MIMIA [2002] FCA 1459
Durzi v MIMIA [2006] FCA 1767
Lobo v MIMIA [2003] FCAFC 168
Moller v MIAC [2007] FMCA 168
Rani v MIMA (1997) 80 FCR 379
Re Drake (No. 2) (1979) 2 ALD 634
Sakhno v MIAC [2007] FMCA 1492
Tien v MIMA (1998) 89 FCR 80
Vishnumolakala v Minister for Immigration [2006] FMCA 1209
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 13 May 2021 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 breached condition 8607(4) as she failed to commence employment at the sponsoring business within 90 days after she arrived in Australia. 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 second named applicant’s visa was 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 the second named applicant’s visa 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 the second named applicant.
Background…

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 Kunwar (Migration)

Details

AGLC: Kunwar (Migration) [2021] AATA 3277
Case: [2021] AATA 3277
Decision Date: 20 August 2021

CaseChat Overview and Summary

This matter concerned the review of a decision to cancel the Subclass 482 (Temporary Skill Shortage) visa granted to the first applicant. The second applicant's visa had been automatically cancelled as a consequence of the first applicant's visa cancellation, and the Tribunal determined it had no jurisdiction to review this automatic cancellation. The first applicant arrived in Australia on 22 September 2019, and the sponsoring business, Adaptify Pty Ltd, notified the Department on 26 August 2020 that the applicant had not commenced employment. Following a notice of intention to consider cancellation and the applicant's response, the delegate cancelled the visa on 13 May 2021.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to determine if the applicant had complied with condition 8607(4) of her visa, which required her to commence work within 90 days of arrival in Australia, given she was offshore when the visa was granted. The Tribunal also considered the applicant's submissions regarding her father's death and mental health challenges, and whether these circumstances warranted a decision not to cancel the visa.

The Tribunal found that the applicant had not complied with condition 8607(4) as she had not commenced employment with the sponsoring business by the time of the hearing, which was well over 90 days after her arrival. Consequently, the ground for cancellation under section 116(1)(b) was satisfied. In exercising its discretion, the Tribunal acknowledged the applicant's personal circumstances but found that the purpose of the visa was to work, and the applicant had not commenced employment despite being in Australia for almost two years. The Tribunal also noted that the visa would have ceased on 16 July 2021 in any event. The Tribunal concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling it.

The Tribunal affirmed the decision to cancel the first applicant's Subclass 482 visa. The Tribunal further held that it had no jurisdiction with respect to the second applicant, whose visa cancellation was a self-executing consequence of the first applicant's visa cancellation under section 140(1) of the Act.

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 second named applicant’s visa was 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 the second named applicant’s visa 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 the second named applicant.Background to the cancellation of the applicant’s visa The decision record of 13 May 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 16 July 2019, the applicant was granted a Subclass 482 visa, to remain valid until 16 July 2021.·The standard business sponsor who most recently nominated the applicant to work as a software engineer was Adaptify Pty Ltd (the sponsor).·The applicant arrived in Australia as a holder of a Subclass 482 visa on 22 September 2019.·On 26 August 2020, the sponsor informed the Department that the applicant did not commence her employment at the sponsoring business.·A notice of intention to consider cancellation (NOICC) was issued on 17 March 2021.·On 23 March 2021, the applicant responded to the NOICC.·On 13 May 2021, after considering the applicant’s response to the NOICC, the delegate proceeded to cancel the applicant’s visa. The applicant applied to the Tribunal on 17 May 2021 for review of the visa cancellation and with her application submitted a copy of the primary decision record. On 2 July 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 hearing scheduled for 19 August 2021. The applicant appeared before the Tribunal on 19 August 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conferencing.

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 8607 is attached to the applicant’s visa. The condition in 8607(4) requires that, if the holder was outside Australia when the visa was granted, the holder must commence work within 90 days from the holder’s arrival in Australia. As noted above, condition 8607 was attached to the applicant’s visa, which was granted on 16 July 2019 while the applicant was offshore. This visa was, but for the cancellation, valid until 16 July 2021. Based on the evidence before it, including the oral evidence from the applicant, the Tribunal finds that the applicant arrived in Australia on 22 September 2019 and did not commence employment at the sponsoring business as of the day of the Tribunal hearing. Accordingly, the Tribunal finds that the applicant did not comply with condition 8607(4). 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 482 – Temporary Skill Shortage visa. The Tribunal has no jurisdiction with respect to the second named applicant.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 Tribunal finds that the purpose of the applicant’s stay in Australia was to work as a software engineer on a temporary basis. The applicant never commenced employment at the sponsoring business. She remained in Australia for almost two years since arriving in September 2019. Despite not being prevented to do so, she did not work in Australia. Based on the evidence before it, including the applicant’s oral evidence, the Tribunal finds that, as of the day of the Tribunal’s hearing, the applicant is not employed by an Australian business which is an approved standard business sponsor and which has successfully nominated the applicant for a position within the business. The Tribunal further finds that the applicant’s Subclass 482 visa would, but for the cancellation, have ceased on 16 July 2021 in any case. It follows that it is no longer possible to reinstate her Subclass 482 visa.