Marais (Migration)

Case [2021] AATA 4330

Marais (Migration) [2021] AATA 4330 (7 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Malcolm Grant Marais
Ms Bonita Marais
Miss Demi Marais

CASE NUMBER:  2103928

HOME AFFAIRS REFERENCE(S):          BCC2020/2144138

MEMBER:Antonio Dronjic

DATE:7 September 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not 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 07 September 2021 at 4:16pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – stood down – resigned to access outstanding payments from employer – consideration of discretion – purpose of visa – metal fabricator – Vocational Educator – time to secure new nomination – circumstances giving rise to breach – COVID-19 pandemic – beyond the applicant’s control – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 140

Migration Regulations 1994 (Cth), r 2.12; Schedule 8, Condition 8107

CASES
COT15 v MIBP (No 1) (2015) 236 FCR 148
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision dated 24 March 2021 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).

  2. 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 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. 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.

  4. The decision record of 24 March 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 27 March 2018, the applicant was granted a Subclass 457 Business (Long Stay) visa to remain, valid for the period of four years.

    ·The standard business sponsor who most…

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Details
AGLC
Marais (Migration) [2021] AATA 4330
Case
[2021] AATA 4330
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by Mr. Marais. The dispute arose because Mr. Marais ceased employment with his sponsoring business, which potentially breached a condition of his visa. The Tribunal was tasked with determining whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The Tribunal first considered whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 was made out. This required determining if Mr. Marais had complied with condition 8107(3)(b) of his visa, which stipulates that the period of cessation of employment must not exceed 60 consecutive days. The Tribunal found that Mr. Marais ceased employment on 12 August 2020 and that this period of unemployment exceeded 60 consecutive days, thus satisfying the ground for cancellation. However, as this ground did not mandate cancellation, the Tribunal proceeded to consider the exercise of its discretion.

In exercising its discretion, the Tribunal had regard to the circumstances of the case, including submissions from Mr. Marais and relevant policy guidelines, while acknowledging that such guidelines are not legally binding. The Tribunal noted that Mr. Marais was stood down from his employment due to the COVID-19 pandemic and subsequently resigned to access outstanding payments. His efforts to secure new employment were hampered by the refusal of a nomination application for a metal fabricator position, with the delegate finding his duties were more aligned with a trainer/teacher role. The Tribunal concluded that the reasons for not cancelling the visa outweighed the reasons for cancellation.

Consequently, the Tribunal set aside the decision to cancel Mr. Marais's visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning other applicants.

Orders

Orders of the court

Full text does not contain this section.

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 applicant’s visa should be set aside.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 60 consecutive days. 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 12 August 2020. The Tribunal further finds that the period during which the visa holder ceased employment exceeded 60 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 the 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, the Tribunal is satisfied that the reasons for not cancelling the visa outweigh the reasons for cancelling the visa. The Tribunal finds that not cancelling the applicant’s visa is the correct and preferable decision.DECISION The Tribunal sets aside the decision under review and substitutes a decision not 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 DronjicMemberAttachment A: Document List·Applicant’s statement to the Department of Home Affairs dated 17/02/2021·Letter from Rick Wilson MP dated 15/2/2021·Letter from Churchwest dated 17/02/2021·Letter from Industry Training & Workplace Services Pty Ltd (Undated)·AMCT skills safety card (Malcolm Marais) – Enter and Work in Confined Spaces·AMCT skills safety card (Malcolm Marais) – Operate a Gantry or Overhead Crane·Copy of Malcolm Marais’ Driver Licence (WA)·Job application correspondence with GT Boilermaking·Licence to perform high risk work (Malcolm Marais)·AMCT skills safety card (Malcolm Marais) – Operate Support Equipment Integrated Tool Carrier·Working with children check (Malcolm Marais) ·TAFE appointment pool correspondence ·VETASSESS skilled migration results dated 23/05/2017·AMCT skills safety card (Malcolm Marais) – Work Safely at Heights·Applicant’s response to NOICC dated 17/02/2021·Education documents (Bonita Perschel Marais) dated 15/08/2017·Bachelor of Education Honours (Bonita Perschel Marais) dated 09/07/2017·Letter of offer for fixed term employment (Bonita Perschel Marais)·Copy of Bonita Perschel Marais’ Driver Licence (WA)·Email from National Breast Cancer Foundation (Bonita Perschel Marais)·Email confirming placement in fixed term teacher pool (Bonita Perschel Marais)·Payslips (Bonita Perschel Marais) from the Department of Education for the years 2019 to 2020·Payslip (Bonita Perschel Marais) from the Catholic Education Office for the period 20/09/2019 to 25/9/2019·First aid certificate (Bonita Perschel Marais) dated 12/10/2020·Working with children check (Bonita Perschel Marais)·Email confirming grant of full teacher registration (Bonita Perschel Marais)·Copy of Demi Perschei Marais’ Driver Licence (WA)·Payslip (Demi Perschei Marais) from the Times One Pty Ltd for the period 13/01/2021 to 26/01/2021·Overseas Student Confirmation of Enrolment (Demi Perschei Marais) – Certificate III in Early Childhood Education and Care·TAFE letter of offer (Demi Perschei Marais) dated 16 February 2021·CPC Engineering letter dated 25/03/2020 addressed to Malcolm MaraisAttachment B: Document List·Applicant’s Statement (Malcolm Marais) dated 28/3/2021·Email correspondence titled ‘Vacancy application’ (Malcolm Marais)·Email correspondence from Malcolm Marais to Drage BoilermakingAttachment C: Document List·Submissions from the applicant’s representative dated 16/08/2021·Letter from Rick Wilson MP dated 13/07/2021·Letter from Industry Training & Workplace Services Pty Ltd dated 01/08/2021·Letter from Coolgardie Primary School (undated)·Statutory declaration by Dennis Kevin Maris dated 19 July 2021·Copy of Dennis Kevin Maris’ South African national identity card·Statutory declaration by Malcolm Grant Marais dated 24/08/2021·Statutory declaration by Bonita Perschel Marais dated 24/08/2021·Statutory declaration by Gregory John Hinrichsen dated 18/08/2021·Copy of Gregory John Hinrichsen’s Heavy vehicle Driver’s licence·Statutory declaration by Irvin Gerome Knipe dated 08/08/2021·Copy of Irvin Gerome Knipe’s Driver’s licence (WA)·Statutory declaration by Jesse Dorkin dated 27/07/2021·Copy of Jesse Dorkin’s Driver’s licence (WA)·Statutory declaration by Judith Suellen Whittaker dated 12/08/2021·Copy of Judith Suellen Whittaker’s passport·Notice of Assessment (Bonita Perschel Marais) for the year ended 30 June 2021·Original and translated advice of result for Bonita Perschel Moses·Western Australia Police check (Bonita Perschel Marais)·South Africa Police Check (Bonita Perschel Marais) dated 14/10/2020·Payslips (Bonita Perschel Marais) from the Department of Education for the year 2021·Payslips (Bonita Perschel Marais) from the Catholic Education Office for the year 2021·Pictures of Bonita Perschel Marais and students in a classroom·Document titled ‘Relief Slip’ issued by Hannans Primary School dated 04/08/2021·Supplementary Examination Result for Bonita Perschel Moses·Letter from Churchwest (undated)·Copy of Jason Duane Marais’ South African passport·Cheque account statement for the period 29/06/2021 to 28/07/2021·Notice of amended assessment for the year ended 30 June 2020 (Malcolm G Marais)·Notice of assessment for the year ended 30 June 2020 (Malcolm G Marais)·Employment agreement between Industry Training & Workplace Services Pty Ltd and Malcolm Marais·Email correspondence regarding Malcolm Marais’ medical procedure on 15 October 2020·Patient admission summary by Dr Jennifer Morgan for Malcolm Marais (15 October 2020)·Medical tax invoice dated 17/09/2020·St John of God Health Care brochure·Email correspondence regarding Malcolm Marais’ medical procedure on 25 February 2021·Patient admission summary by Dr Jennifer Morgan for Malcolm Marais (25 February 2021)·Pain Chart (Malcolm Marais) dated 25/02/2021·Medical tax invoice dated 16/02/2021·Emails from Seek confirming job applications (Malcolm Marais) ·Letter confirming job application from Certsy·Uncertified Financial document regarding South African and Australian expenses·Malcolm Marais N3 Certificate·Western Australia Police Check (Malcolm Marais)·Payslips (Malcolm Marais) from Industry Training & Workplace Services Pty Ltd for the year 2020 to 2021·South African Police Check (Malcolm Marais)·Advanced project management certificate (Malcolm Marais)·Project management certificate (Malcolm Marais)·Vehicle Licence and Motor Injury Insurance Policy (Malcolm Marais)·Malcolm Marais’ resume·Income Tax Return 2021 (Malcolm Marais)·Letter from Industry Training & Workplace Services Pty Ltd (Undated) certified on 23/08/2021Attachment D: Document List·Data regarding South Africa’s coronavirus cases from Worldometer·Data from Statistics South Africa regarding job loss·Document titled ‘Jobs in Demand Employer Survey’ by the Australian Government·Skilled occupation list by the Department of Home Affairs·ABC News article dated 09/07/2018·2013 Theses by Mairead Dempsey, Edith Cowan University·Document titled ‘Economic Perspective’ by Goldfields-Esperance·Document titled ‘Economy, Jobs and Business Insights’ by Goldfields-Esperance·Document titled ‘Esperance Region Economy Development Strategy’ by Goldfields-Esperance·City of Kalgoorlie Boulder website regarding Designated Area Migration Agreement·Email correspondence titled ‘Letter of Support Visa Application’·Document titled ‘Evidence of passing relatives of Malcolm Grant Marais in South Africa due to COVID-19’.Attachment E: Document List·Document titled ‘Malcolm Grant Marais and his student and trainees – Pictures while working as a Metal Fabricator trainer for Industry Training and Workplace Services Pty Ltd’·Statutory declaration by Arlene Rose Doherty dated 15/8/2021·Copy of Arlene Rose Doherty’s Australian passport·Statutory declaration by Nicholas Edwin Marr dated 1/9/2021·Copy of Nicholas Edwin Marr’s heavy vehicle driver’s licence

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 the 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 and his wife.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 applicant gave evidence he was stood down from his employment at CPC Engineering on 25 March 2020 as the company was unable to secure enough work for its employees. On 12 August 2020, the applicant had to resign to access outstanding payments from his employer. This was confirmed in the letter from CPC Engineering dated 25 March 2020. On 23 October 2020, the applicant managed to secure new employment at ITWS where he remains employed as a metal fabrication trainer/teacher as at the time of this decision. His new employer attempted to nominate Mr Marais for the position of a metal fabricator. According to the Department’s decision record of 6 January 2021, this nomination application was refused as the delegate was not satisfied that the position associated with the nominated occupation was genuine. The delegate concluded that Mr Marais’s duties are more closely related to duties required to be performed by a trainer/teacher. It was further submitted that the ITWS nomination application was unsuccessful because an inexperienced migration agent nominated the wrong occupation.