MONIKA (Migration)

Case [2018] AATA 80

MONIKA (Migration) [2018] AATA 80 (19 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Monika Monika
Mr Aman Aman

Master Nehum Jolly

CASE NUMBER:  1617588

DIBP REFERENCE(S):  BCC2016/1747003

MEMBER:Danica Buljan

DATE:19 January 2018

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 second and third-named applicants.

Statement made on 19 January 2018 at 12:14pm

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Failed to provide requested information – Ceased employment with sponsoring employer – Absence of an approved or pending business nomination – Awareness of condition 8107

LEGISLATION
Migration Act 1958, ss 116, 119, 140, 353, 359, 359A, 359C, 360, 363
Migration Regulations 1994, Schedule 8 Condition 8107

CASES

ADA15 v Minister for Immigration and Border Protection [2016] FCCA 291
Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Chen v Minister for Immigration and Border Protection [2016] FCCA 2351
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767
Ghori v Minister for Immigration and Citizenship [2011] FCA 759
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (4 February 2014)
Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013)
Minister for Immigration and Multicultural Affairs v Sun (2005) 146 FCR 498
Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Paduano v Minister for Immigration & Multicultural & Indigenous Affairs & Migration Review Tribunal [2015] FCA 211
Pradhan v Minister for Immigration and Multicultural Affairs (1999) FCA 1240
Rani & Ors v Minister for Immigration and Multicultural Affairs   (1997) 80 FCR 379
Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492
Singh v Minister for Immigration and Border Protection [2014] FCCA 1403
Singh v Minister for Immigration and Border Protection [2017] FCAFC 67
SZLYD v Minister for Immigration and Citizenship [2008] FMCA 805
Tien & Ors v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80
Visnumolakala v Minister for Immigration [2006] FMCA 1209
Yang v Minister for Immigration and Citizenship [2010] FMCA 890
Zhao v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1235

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision dated 21 October 2016 made by a delegate of the Minister for Immigration to cancel the first-named applicant’s Subclass 457 (Temporary Work (Skilled)) visa under section 116 of the Migration Act 1958 (‘the Act’).

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Details
AGLC
MONIKA (Migration) [2018] AATA 80
Case
[2018] AATA 80
Decision Date

CaseChat Overview and Summary

This matter concerned the cancellation of a Temporary Business Entry (Class UC) visa, subclass 457, held by the applicant. The dispute arose when the Department of Immigration and Border Protection considered cancelling the applicant's visa on the grounds that she had ceased employment with her sponsoring employer, Robin Painting Services Pty Ltd, and had not provided requested information. The applicant had been granted the visa on the basis of sponsorship by Robin Painting Services Pty Ltd, which subsequently advised the Department that it had closed its business. The applicant's visa was subject to conditions 8107 and 8501. The case came before the Tribunal for review of the cancellation decision.

The primary legal issues before the Tribunal were whether the grounds for cancellation under section 116 of the Migration Act 1958 (Cth) were made out, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to determine if the applicant's cessation of employment with her sponsoring employer and the absence of an approved or pending business nomination constituted a valid ground for cancellation. The Tribunal also considered the procedural requirements for visa cancellation, including the provision of notice and an opportunity for the visa holder to respond.

The Tribunal reasoned that the onus rested with the Minister, or on review, the Tribunal, to establish the facts leading to cancellation. While the applicant was invited to show cause why the visa should not be cancelled, this did not place an onus on her to rebut the identified grounds. The Tribunal found that the applicant had ceased employment with her original sponsor, and that sponsor had ceased business operations. The Tribunal acknowledged that the decision to cancel a visa, even if grounds are made out, involves a discretion that must be exercised having regard to all relevant circumstances. In exercising this discretion, the Tribunal considered the applicant's submissions and evidence, as well as administrative policy guidelines, while noting that such policies are advisory and not binding.

The Tribunal concluded that the decision under review should be affirmed. While the specific outcome or final orders are not detailed in the provided text, the reasoning indicates that the Tribunal found the grounds for cancellation to be established and exercised its discretion to uphold the cancellation of the applicant's visa.

Orders

Orders of the court

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Background

Background to the litigation

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.The Applicant’s Immigration History and the Background to the Cancellation As set out in the Tribunal section 359A invitation (dated 14 February 2017[21]), on 6 March 2015 the Department approved a nomination lodged by Robin Painting Services Pty Ltd (an approved standard business sponsor) for a ‘Painting Trades Worker’ (ANZSCO Code 332211) in the applicant’s favour, with a base annual salary of $54,080. This letter also noted that the applicant was granted her Subclass 457 visa on 19 June 2015 valid to 19 June 2019 and subject to conditions 8107 and 8501. [21] T1, f.47-50 The applicant did not dispute these matters in her emailed response (dated 28 February 2017[22]), in which she advised that her new sponsor, Makris Group Pty Ltd, had lodged an application for review with the Tribunal (AAT Case file 1618152).[22] T1, f.52-55 Accordingly, the Tribunal finds that the Department granted the applicant a Subclass 457 visa on 19 June 2015 that was originally valid until 19 June 2019 and that this was on the basis that she was sponsored by a standard business sponsor under subclause 457.223(4). It also finds that this visa was subject to mandatory conditions 8107 and 8501. Notification procedures The Act sets out the procedure for cancelling visas. Notice of the grounds on which cancellation is being considered must be given and the visa holder invited to show either, that the grounds do not exist, or that there are reasons why the visa should not be cancelled.[23] The visa holder must also be given an opportunity to respond. In addition, a visa may not be cancelled before the visa holder has been given a notice of cancellation that includes information relevant to the cancellation.[23] Section 119 of the Act The onus of establishing the facts which may lead to cancellation rests with the Minister, or on review, with the Tribunal. Although the visa holder must be invited to show that the ground for cancellation does not exist, or if it does, that there is a reason why the visa should not be cancelled, this does not place an onus on the visa holder to rebut the possible ground of cancellation identified.[24] [24] See Zhao v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1235 at [25] and [32] In its section 359A invitation (dated 14 February 2017[25]) the Tribunal set out the details relating to the ‘Notice of Intention to Consider Cancellation’ (‘the notice’ / ‘the NOICC’) the Department had sent to the applicant on 23 May 2016.[26] [25] T1, f.47-50[26] D1, f.2-5 In particular, the Tribunal noted in its invitation that this notice stated that the Department had received written advice from Robin Painting Services Pty Ltd on 30 January 2016 that it had closed its business, and that the applicant had ceased her employment with this sponsor effective 30 January 2016.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE Under section 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 subsection 116(1)(b). Section 116 of the Act is extracted in the attachment to this decision. 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.The Applicant’s Immigration History and the Background to the Cancellation As set out in the Tribunal section 359A invitation (dated 14 February 2017[21]), on 6 March 2015 the Department approved a nomination lodged by Robin Painting Services Pty Ltd (an approved standard business sponsor) for a ‘Painting Trades Worker’ (ANZSCO Code 332211) in the applicant’s favour, with a base annual salary of $54,080. This letter also noted that the applicant was granted her Subclass 457 visa on 19 June 2015 valid to 19 June 2019 and subject to conditions 8107 and 8501. [21] T1, f.47-50 The applicant did not dispute these matters in her emailed response (dated 28 February 2017[22]), in which she advised that her new sponsor, Makris Group Pty Ltd, had lodged an application for review with the Tribunal (AAT Case file 1618152).[22] T1, f.52-55 Accordingly, the Tribunal finds that the Department granted the applicant a Subclass 457 visa on 19 June 2015 that was originally valid until 19 June 2019 and that this was on the basis that she was sponsored by a standard business sponsor under subclause 457.223(4). It also finds that this visa was subject to mandatory conditions 8107 and 8501. Notification procedures The Act sets out the procedure for cancelling visas. Notice of the grounds on which cancellation is being considered must be given and the visa holder invited to show either, that the grounds do not exist, or that there are reasons why the visa should not be cancelled.[23] The visa holder must also be given an opportunity to respond. In addition, a visa may not be cancelled before the visa holder has been given a notice of cancellation that includes information relevant to the cancellation.[23] Section 119 of the Act The onus of establishing the facts which may lead to cancellation rests with the Minister, or on review, with the Tribunal. Although the visa holder must be invited to show that the ground for cancellation does not exist, or if it does, that there is a reason why the visa should not be cancelled, this does not place an onus on the visa holder to rebut the possible ground of cancellation identified.[24] [24] See Zhao v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1235 at [25] and [32] In its section 359A invitation (dated 14 February 2017[25]) the Tribunal set out the details relating to the ‘Notice of Intention to Consider Cancellation’ (‘the notice’ / ‘the NOICC’) the Department had sent to the applicant on 23 May 2016.[26] [25] T1, f.47-50[26] D1, f.2-5

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It follows, that as this ground for cancellation does not require mandatory cancellation under subsection 116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.Consideration of the Discretion Regarding Cancellation In relation to the consideration of the relevant discretion regarding cancellation, although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the Tribunal observes that the Courts have generally held that the relevant facts of an individual case will have to be supplied by the applicant, in as much detail as is necessary to enable the relevant decision-maker to establish the relevant facts. As a result, a decision-maker is not required to make an applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[36] [36] See MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70 The Tribunal notes that there are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including, but not limited to, matters identified in the Department’s Procedures Advice Manual (‘PAM3’) ‘General visa cancellation powers (s109, s116, s128 & s140)’. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[37] 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.[38] [37] See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634[38] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168; Visnumolakala 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 Affairs2006] 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 its discretion, the Tribunal has also taken into account the applicant’s various submissions and evidence. This includes submissions dated 6 and 25 May 2016[39], 28 February 2017[40], and 14 January 2018.[41][39] D1, f.18-25 & 30-38 [40] T1, f.52-55[41] T1, f.73-86