MAHIL (Migration) - [2017] AATA 2752

MAHIL (Migration) [2017] AATA 2752 (13 December 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Ramandeep Kaur MAHIL
Mr Preetkamal Singh MAHIL
Miss Tehzeeb Kaur MAHIL
CASE NUMBER:  1605607
DIBP REFERENCE(S):  BCC2016/774465
MEMBER:L. Hawas
DATE:13 December 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 13 December 2017 at 3:03pm

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Requirement to not cease employment for more than 90 days – Employment ceased for more than 90 days – Significant period of unemployment – Involuntary unemployment – Purpose of stay inconsistent with purpose of visa – Significant hardship – Medical condition – Visa expiring shortly - Consequential cancellation – No jurisdiction to review consequential cancellations
LEGISLATION
Migration Act 1958, s 48, 116, 140, 348
Migration Regulations 1994, r 2.12, Schedule 8, Condition 8107
CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80
STATEMENT OF DECISION AND REASONS
Application for review

This is an application to review a decision dated 19 April 2016 made by a delegate of the Minister for Immigration to cancel the first applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (Act).
The first applicant’s visa was subject to condition 8107(3)(b), which provided that if she ceases employment with her nominated employer, the period during which she ceases employment must not exceed 90 consecutive days. The delegate cancelled the first applicant’s visa under s.116(1)(b) of the Act because she breached condition 8107(3)(b) by ceasing employment with her nominated employer for more than 90 consecutive days. In this review, the Tribunal must decide whether that ground for cancellation is made out, and if so, whether the proper exercise of its discretion requires the visa to remain cancelled.
For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision before the Tribunal is the decision cancelling the first applicant’s visa. The other applicants’ visas were automatically cancelled as a consequence of that cancellation. The visas of the other applicants were not cancelled by 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 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.
For the following reasons, the Tribunal has concluded that the decision to cancel the first applicant’s visa should be affirmed.
Procedural history and the evidence before the Tribunal
The delegate’s decision record dated 19 April 2016, which the first…

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: MAHIL (Migration) [2017] AATA 2752
Case: [2017] AATA 2752
Decision Date: 13 December 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)), held by the first applicant. The dispute arose when the Department of Immigration notified the applicant of its intention to cancel her visa due to a breach of condition 8107(3)(b), which requires the visa holder not to cease employment for more than 90 consecutive days. The applicant had ceased employment with her sponsoring employer, Sahota Café and Restaurant Pty Ltd, on 23 September 2015, and remained unemployed for a period exceeding 90 days.

The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether the exercise of discretion favoured cancelling the visa. Specifically, the Tribunal had to assess if the first applicant had breached condition 8107(3)(b) and, if that ground was established, consider all relevant circumstances in deciding whether to affirm the delegate's decision to cancel the visa. The Tribunal also had to consider the applicant's submissions regarding her involuntary unemployment due to her employer ceasing operations, her subsequent unsuccessful attempts to find new sponsorship, and the significant hardship she would face, including financial difficulties and ongoing medical issues stemming from a car accident and other injuries.

The Tribunal found that the first applicant had indeed breached condition 8107(3)(b) of her 457 visa, as she had ceased employment for more than 90 consecutive days. While acknowledging the applicant's circumstances, including her involuntary unemployment and the hardship she faced, the Tribunal concluded that the correct and preferable exercise of its discretion favoured affirming the delegate's decision. The Tribunal noted that it had no jurisdiction with respect to the other applicants.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the first applicant’s visa should be affirmed.Procedural history and the evidence before the Tribunal The delegate’s decision record dated 19 April 2016, which the first applicant gave to the Tribunal in the review, recorded the following:(a)On 24 December 2013, the first applicant was granted a temporary business entry (class UC), temporary work (skilled) (subclass 457) visa, which was to remain current for four years until 24 December 2017;(b)The standard business sponsor who sponsored the first applicant for her 457 visa was Sahota Café and Restaurant Pty Ltd (Sahota). The first applicant worked for Sahota in the approved position of chef;(c)The first applicant’s 457 visa contained condition 8107(3)(b);(d)By notice of intention to cancel the first applicant’s visa dated 22 March 2016, the department notified the first applicant that there were grounds to cancel her visa for breach of condition 8107(3)(b). The notice sought a written response from the first applicant;(e)The first applicant responded in writing by letter to the department dated 8 April 2016. Her response was to the effect that Sahota objected to her taking time off work to recover from pre-and-post natal complications. Ultimately, Sahota closed its business operations and she ceased work with Sahota for that reason. She tried to locate another employer who would sponsor her but she was unsuccessful. She will encounter financial difficulty if her visa was cancelled as a result;(f)Sahota advised the department that the first applicant ceased employment with it on 23 September 2015;(g)The first applicant was not the subject of a fresh application to nominate her or an approved nomination at the time of the delegate’s decision;(h)The first applicant had not breached any other visa conditions and had always co-operated with the department; (i)The first applicant had breached condition 8107(3)(b) of her visa; and (j)In the circumstances before the delegate, he considered the appropriate exercise of his discretion favoured cancelling the first applicant’s 457 visa under s. 116(1)(b) of the Act. On 21 April 2016, the first applicant applied for a review of the delegate’s decision to cancel her visa. It then took over a year for this matter to get to hearing. The delay was not occasioned by any delay by the Tribunal in determining the matter or any deliberate delay by the first applicant. The delay was occasioned by the first applicant suffering from back problems late in 2016, and her involvement in a serious car accident in March 2017. The relevant procedural history is set out in the paragraphs that follow. By letter dated 17 November 2016, the Tribunal notified the first applicant that it had considered the information before it but was unable to make a favourable decision on that information alone. The Tribunal invited the first applicant to a hearing on 2 December 2016 at which time she could give oral (and any written) evidence and present her arguments.

Decision

Reasons for decision

Having regard to all the evidence before it, and balancing the matters both in favour of setting aside the delegate’s decision and affirming it, the Tribunal concludes that the correct and preferable exercise of its discretion favours affirming the delegate’s decision to cancel the first applicant’s 457 visa.Decision The Tribunal affirms the decision to cancel the first applicant’s Subclass 457 (Temporary Work (Skilled)) visa. The Tribunal has no jurisdiction with respect to the other applicants.L. HawasSenior Member

Ratio Decidendi

Legal Principle Established

After the hearing, the first applicant submitted to the Tribunal medical evidence about her condition and treatment plan. The medical evidence details a pelvic fracture that has been treated with screws. The treating doctor reports that the fracture is healing. The medical evidence also describes an AC joint injury that requires reconstructive surgery to relieve pain and heal. The first applicant’s treating doctor stated that he would arrange the reconstructive shoulder surgery once the TAC had approved it (presumably agreed to pay for it). The medical evidence also details various other injuries from which the first applicant is reported to be recovering.Consideration of claimsDoes the ground for cancellation exist? Under s.116 of the Act, the Minister may cancel a visa if he is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, those 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 proper exercise of the discretion requires the visa to be cancelled, having regard to all the relevant circumstances, which may include matters of government policy. The Minister or the Tribunal may cancel a visa under s.116(1)(b) of the Act if satisfied that the holder did not comply with a condition of the visa. Here, the first applicant’s visa contained condition 8107(3)(b), which provided that the first applicant must not cease employment with her nominated employer (or an entity associated with the employer) for more than 90 consecutive days.[1] [1] The department’s records on the Integrated Client Services Environment (ICSE) confirm that the first applicant’s visa was subject to condition 8107. During the Tribunal hearing, the first applicant said:(a)She ceased working for Sahota on about 23 September 2015; and(b)She accepted that the delegate had lawful grounds to cancel her 457 visa. On the evidence before the Tribunal it finds that:(a)The first applicant’s 457 visa was subject to condition 8107, and more particularly condition 8107(3)(b). The visa was granted on 24 December 2013, and would have, but for its cancellation, remained effective until 24 December 2017;(b)The first applicant ceased employment with Sahota on about 23 September 2015, and the period during which the first applicant subsequently remained unemployed exceeded 90 consecutive days; and (c)The first applicant breached condition 8107(3)(b) of her 457 visa. Accordingly, the Tribunal is satisfied that the delegate had lawful grounds to cancel the first applicant’s visa. As those grounds do not require mandatory cancellation of the first applicant’s visa under s. 116(3) of the Act, the Tribunal must proceed to consider whether, as a matter of discretion, the power to cancel the visa should be exercised.The discretion The Act and the Migration Regulations 1994 (Regulations) do not prescribe the matters to be considered in the exercise of the discretion to cancel a visa. The discretion is to be guided by having regard to all the relevant circumstances. The Tribunal may have regard to matters of government policy such as the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’. But the Tribunal is not bound to follow PAM3, and it can have regard to a matter outside of PAM3 so long as the matter is relevant.[2] However, PAM3 constitutes a useful starting point for the exercise of the discretion. The purpose of the first applicant’s travel to and stay in Australia[2] See Brennan J in Re Drake (No. 2) (1979) 2 ALD 634. 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 should not be elevated into legally necessary or relevant considerations. The policy guidelines in PAM3 cannot go beyond the wording of the legislation, even when they are favourable to the applicant. See for example Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459.