Manito (Migration) - [2020] AATA 57

Manito (Migration) [2020] AATA 57 (6 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Marjorie Manito
Mr Michael Concepcion
Ms Mia Mikhaela Manito
CASE NUMBER:  1909371
HOME AFFAIRS REFERENCE(S):          BCC2019/436752
MEMBER:Antonio Dronjic
DATE:6 January 2020
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 06 January 2020 at 9:31am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – ceased employment more than 90 days – resigned due to mistreatment – ample time to find new sponsor – no jurisdiction with respect to other applicants – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140
Migration Regulations 1994 (Cth), Schedule 8 Condition 8107

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 10 April 2019 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) 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 first named applicant (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.
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 10 April 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 16 November 2016, the applicant was granted a Subclass 457 Business (Long Stay) visa to remain valid until 16 November 2020;
·The standard business sponsor who nominated the applicant to work as a massage therapist was Neon Supplies Australia Pty Ltd T/As Japanese Mountain Retreat (the sponsor);
·On 2 July 2018 the sponsoring business informed the Department that the applicant ceased her employment, effective 25 June 2018;
·A notice of intention to consider cancellation (NOICC) was issued to the applicant on 21 March 2019;
·The…

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 Manito (Migration)

Details

AGLC: Manito (Migration) [2020] AATA 57
Case: [2020] AATA 57
Decision Date: 6 January 2020

CaseChat Overview and Summary

This matter concerned the review of a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by the first named applicant, Manito. The other applicants' visas had been automatically cancelled as a consequence of the first applicant's visa cancellation, by operation of s.140(1) of the Migration Act 1958 (Cth). The Administrative Appeals Tribunal (AAT) determined it had no jurisdiction with respect to these other applicants as their visa cancellations were not the result of a decision. The primary dispute for the AAT was whether the cancellation of Manito's visa was justified.

The legal issues before the Tribunal were whether the ground for cancellation under s.116(1)(b) of the Act was made out, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(b) permits cancellation if the visa holder has not complied with a condition of their visa. In this case, the relevant condition was 8107(3)(b), which stipulated that a visa holder who ceases employment must not remain unemployed for more than 90 consecutive days. The Tribunal also considered the applicant's submissions regarding mistreatment by her employer and her efforts to find new employment.

The Tribunal found that Manito had ceased employment on 25 June 2018 and that the period of unemployment exceeded 90 consecutive days, thereby satisfying the ground for cancellation under s.116(1)(b). While acknowledging the applicant's claims of mistreatment and her attempts to secure new sponsorship, the Tribunal concluded that these factors did not outweigh the reasons for cancellation. The Tribunal noted that while it could be guided by policy, such as that found in the Department's Procedures Advice Manual, it was not bound by it, as judicial authority indicated these guidelines were administrative aids and could not elevate beyond the wording of the legislation.

Ultimately, the Tribunal affirmed the decision to cancel Manito's Subclass 457 visa, finding that the reasons for cancellation outweighed the reasons for not cancelling it. The Tribunal also reiterated that it had no jurisdiction concerning the other applicants whose visas were automatically cancelled.

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 10 April 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 16 November 2016, the applicant was granted a Subclass 457 Business (Long Stay) visa to remain valid until 16 November 2020;·The standard business sponsor who nominated the applicant to work as a massage therapist was Neon Supplies Australia Pty Ltd T/As Japanese Mountain Retreat (the sponsor);·On 2 July 2018 the sponsoring business informed the Department that the applicant ceased her employment, effective 25 June 2018;·A notice of intention to consider cancellation (NOICC) was issued to the applicant on 21 March 2019;·The applicant responded to the NOICC on 25, 26 and 27 March 2019; and·On 10 April 2019, the delegate proceeded to cancel the applicant’s visa. The applicant applied to the Tribunal on 15 April 2019 for review of the visa cancellation and with her application submitted:·A copy of the primary decision record;·A copy of the NOICC; and ·A copy of the applicant’s positive skills assessment outcome for her nominated occupation of a massage therapist dated 27 August 2018. On 20 November 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 23 December 2019. The applicants appeared before the Tribunal to give evidence and present arguments. The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the Tribunal hearing. The Tribunal informed the applicant that her visa was cancelled under s.116(1)(b) of the Act as the delegate concluded that she had not complied with the conditions of her visa. Specifically, the 8107 condition to which her visa was subject, prescribes in 8107(3)(b) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. The Tribunal explained that the applicant’s husband’s and daughter’s visas were automatically cancelled by operation of s.140(1) of the Act, which made the cancellation of those other visas self-executing on the cancellation of her visa.

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. The 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. As noted above, condition 8107 was attached to the applicant’s visa, which was granted on 16 November 2016, and which, but for its cancellation, was valid to 16 November 2020. Based on the evidence before it, including the oral evidence from the applicant, the Tribunal finds that the applicant ceased employment at the sponsoring business on 25 June 2018. The Tribunal further finds that the period during which the visa holder ceased employment exceeded 90 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.[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 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 (Temporary Work (Skilled)) 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.[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 for Neon Supplies Australia Pty Ltd as a massage therapist on a temporary basis. The applicant resigned from her job on 25 June 2018 as she was mistreated by her employer. She decided to remain in Australia and try to find a new employer. The Tribunal accepts that she applied for the position of a massage therapist at various businesses located across Australia but was not successful. Based on the evidence before it, the Tribunal is satisfied that, as of the day of its decision, the applicant is not employed by an Australian company which is an approved standard business sponsor and which successfully nominated the applicant for a position within the business.