Le (Migration) - [2019] AATA 3628

Le (Migration) [2019] AATA 3628 (20 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Kien Chi Le
CASE NUMBER:  1904829
HOME AFFAIRS REFERENCE(S):           BCC2018/5832229
MEMBER:Antonio Dronjic
DATE:20 August 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Statement made on 20 August 2019 at 11:52am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary (Skilled)) – ceased employment exceeded 90 days – previous employment terminated – significant breach – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116
Migration Regulations 1994 (Cth), Condition 8107
CASES

Re Drake (No. 2) (1979) 2 ALD 634
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 1 March 2019 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).
The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant breached condition 8107(3)(b) as the period during which the applicant ceased employment exceeded 90 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.
Background to the cancellation of the applicant’s visa
The decision record of 1 March 2019 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 18 October 2016, the applicant was granted a Subclass 457 Business (Long Stay) visa to remain, valid until 18 October 2010;
·The standard business sponsor who most recently nominated the applicant to work as a cook was Hogan’s Hotel Pty Ltd (the sponsor);
·In September 2017 the applicant ceased his employment with the sponsoring business;
·A notice of intention to consider cancellation (NOICC) was issued on 5 February 2019;
·The Department received no response from the applicant; and
·On 1 March 2019, the delegate proceeded to cancel the applicant’s visa.
The applicant applied to the Tribunal on 1 March 2019 for review of the visa cancellation and with his application submitted a copy of the primary decision record. On 11 June 2019, 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 15 August 2019.
The applicant appeared before the Tribunal on 15 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Thanh Trinh Thi, who is the applicant’s prospective employer. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
At the commencement of the hearing, the applicant submitted the following documents:
·A copy of…

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.

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Details

AGLC: Le (Migration) [2019] AATA 3628
Case: [2019] AATA 3628
Decision Date: 20 August 2019

CaseChat Overview and Summary

This matter concerned the review of a decision by a delegate of the Minister to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The cancellation was based on the applicant's alleged breach of visa condition 8107(3)(b), which stipulates that the period during which a visa holder ceases employment must not exceed 90 consecutive days. The applicant had ceased employment with his sponsoring business in September 2017, and the delegate determined that this period of unemployment exceeded 90 consecutive days, thereby constituting a significant breach. The applicant sought review of this cancellation decision before the Tribunal.

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. This required the Tribunal to determine if the applicant had failed to comply with a condition of his visa, specifically condition 8107(3)(b). If this ground was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa cancellation should be affirmed, having regard to all relevant circumstances, including government policy, although it was not bound by such policy.

The Tribunal found that the applicant had indeed ceased employment in September 2017 and that the period of unemployment exceeded 90 consecutive days, thus satisfying the ground for cancellation under section 116(1)(b). In considering the exercise of discretion, the Tribunal acknowledged the applicant's attempts to find new employment and a subsequent job offer, but ultimately concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling it. The Tribunal affirmed the delegate's decision to cancel the applicant's visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant breached condition 8107(3)(b) as the period during which the applicant ceased employment exceeded 90 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.Background to the cancellation of the applicant’s visa The decision record of 1 March 2019 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 18 October 2016, the applicant was granted a Subclass 457 Business (Long Stay) visa to remain, valid until 18 October 2010;·The standard business sponsor who most recently nominated the applicant to work as a cook was Hogan’s Hotel Pty Ltd (the sponsor);·In September 2017 the applicant ceased his employment with the sponsoring business;·A notice of intention to consider cancellation (NOICC) was issued on 5 February 2019;·The Department received no response from the applicant; and·On 1 March 2019, the delegate proceeded to cancel the applicant’s visa. The applicant applied to the Tribunal on 1 March 2019 for review of the visa cancellation and with his application submitted a copy of the primary decision record. On 11 June 2019, 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 15 August 2019. The applicant appeared before the Tribunal on 15 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Thanh Trinh Thi, who is the applicant’s prospective employer. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. At the commencement of the hearing, the applicant submitted the following documents:·A copy of the visa grant notice dated 18 October 2016 explaining the conditions imposed on his visa;·A copy of the applicant’s IELTS test results dated 21 June 2014 evidencing the overall band score of five;·Copies of his educational certificates;·A copy of the certified extract of a court order as evidence that the applicant was convicted by the Sunshine Magistrate Court for cultivating a narcotic plant – cannabis, and fined $2000;·A copy of a sponsorship approval letter dated 8 February 2019 as evidence that the applicant’s prospective employer, BMA Australia Trading Pty Ltd was approved sponsorship status on that day;·A copy of the employment agreement between BMA Australia Trading Pty Ltd (trading as Hooks at the Yarra) and the applicant dated 14 August 2019 stating inter alia that the applicant’s commencement date is subject to the grant of a Subclass 482 nomination by the Department and reinstatement of the applicant’s Subclass 457 visa;·A copy of the position description for the position of a cook; and·A bundle of e-mails as evidence of the applicant’s attempts to find new employment in 2017.

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 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 90 consecutive days. In this instance condition 8107 was attached to the applicant’s visa, which was granted on 18 October 2016, and which, but for its cancellation, was valid to 18 October 2020. Based on the evidence before it, including the oral evidence from the applicant, the Tribunal finds that the applicant ceased employment at Hogan’s Hotel Pty Ltd in September 2017. The Tribunal further finds that the period during which the visa holder ceased employment exceeded 90 consecutive days. Accordingly the Tribunal finds that the review 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.[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 applicant’s Subclass 457 (Temporary Work (Skilled)) visa.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 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 as a cook on a temporary basis. The applicant ceased his employment in September 2017 because he had disagreements with the head chef which resulted in termination of his employment. The applicant decided to remain in Australia. The Tribunal accepts that the applicant attempted to find new employment as a cook in 2017, but was not successful. The Tribunal further accepts that the applicant was offered employment in early August 2019, and that commencement of the applicant’s employment is subject to his Subclass 457 visa reinstatement and a successful nomination for Subclass 482 visa being made by his prospective employer.