Naqvi (Migration)

Case [2020] AATA 56

Naqvi (Migration) [2020] AATA 56 (6 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Syed Arif Hussain Naqvi
Mrs Husn E Zehra Naqvi

CASE NUMBER:  1902164

HOME AFFAIRS REFERENCE(S):          BCC2016/774729

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 (Business (Long Stay)) visa.

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 06 January 2020 at 2:49pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Business (Long Stay)) – ceased employment for more than 90 days – sponsor in voluntary liquidation – opportunity to rectify – no hardship – no jurisdiction in relation to second applicant – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 8 Condition 8107

CASES

BCR16 v MIBP (2017) 248 FCR 456
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459
COT15 v MIBP (No 1) (2015) 236 FCR 148
Ibrahim v MHA [2019] FCAFC 89
Re Drake (No. 2) (1979) 2 ALD 634

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision dated 21 April 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s (the applicant) Subclass 457 (Business (Long Stay)) 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 first named applicant (the applicant) breached condition 8107(3)(b) of Schedule 8 to the Migration Regulations 1994 (the Regulations), 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.

  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 second named applicant’s visa was 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 the second named applicant’s visa 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 the second named applicant.

    Background to the cancellation of the applicant’s visa

  4. The decision record of 21 April 2016 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 8 August 2012, the applicant was granted a Subclass 457 Business (Long Stay) visa to remain, valid until 8 August…

Continue reading Naqvi (Migration)

Sign in free to access the full text

Details
AGLC
Naqvi (Migration) [2020] AATA 56
Case
[2020] AATA 56
Decision Date

CaseChat Overview and Summary

This matter concerned the review of a decision to cancel the Subclass 457 (Business (Long Stay)) visa of the first applicant. The second applicant's visa was automatically cancelled as a consequence of the first applicant's visa cancellation, by operation of section 140(1) of the Migration Act 1958 (Cth). The Tribunal determined it had no jurisdiction in relation to the second applicant as their visa cancellation was not a "decision" reviewable under the Act.

The primary legal issue before the Tribunal was whether the first applicant's visa should be cancelled under section 116(1)(b) of the Act, on the ground that the applicant had ceased employment for more than 90 consecutive days, thereby failing to comply with visa condition 8107(3)(b). The Tribunal was also required to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances, including the applicant's submissions and the Department's Procedures Advice Manual (PAM3) guidelines, while acknowledging that PAM3 guidelines are administrative and not legally binding.

The Tribunal found that the applicant had indeed ceased employment on 18 September 2015 and that this cessation exceeded 90 consecutive days, thus satisfying the ground for cancellation under section 116(1)(b). In considering the exercise of discretion, the Tribunal noted that the applicant's Subclass 457 visa was due to expire on 8 August 2016, and that the applicant had remained in Australia after the sponsoring business went into voluntary liquidation and had been unsuccessful in finding new employment as a cook. Despite acknowledging the applicant's circumstances, the Tribunal concluded that cancelling the visa was the correct and preferable decision.

The Tribunal affirmed the decision to cancel the first applicant's Subclass 457 visa. The Tribunal also stated that it had no jurisdiction with respect to the second applicant.

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 second named applicant’s visa was 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 the second named applicant’s visa 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 the second named applicant.Background to the cancellation of the applicant’s visa The decision record of 21 April 2016 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 8 August 2012, the applicant was granted a Subclass 457 Business (Long Stay) visa to remain, valid until 8 August 2016;·The standard business sponsor who most recently nominated the applicant to work as a cook was Sumit Enterprises Pty Ltd ATF Washwa Family Trust (the sponsor);·On 18 September 2015, the sponsoring business went into voluntary liquidation and on the same day the applicant ceased his employment with the sponsoring business;·A notice of intention to consider cancellation (NOICC) was issued on 5 April 2016;·On 19 April 2016, the applicant responded to NOICC; ·On 21 April 2016, after considering the applicant’s response to the NOICC, the delegate proceeded to cancel the applicant’s visa;·On 26 April 2016, the applicant applied to the Tribunal (differently constituted) for review of the Department’s decision;·On 3 February 2017, after conducting a hearing on 11 October 2016, the Tribunal affirmed the decision under the review;·On 3 April 2018, the Federal Circuit Court remitted the matter to the Tribunal on the basis that the Tribunal applied the wrong test as to whether Australia would or may be in breach of its international obligations if the applicants’ visas were cancelled and they were returned to Pakistan. The Court found that the correct test is whether the applicants would face a real chance of persecution and not whether they were likely to face persecution;·The Department appealed the Federal Circuit Court decision to the Federal Court;·On 28 November 2018, the Federal Court dismissed the appeal; and·The matter was constituted to the current Tribunal on 11 November 2019. On 19 November 2019, the Tribunal wrote to the applicant advising him that it had considered the material before it and was unable to make a favourable decision on this material alone and invited the applicant to attend a hearing on 16 December 2019. The applicants appeared before the Tribunal on 16 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi/Hindi and English languages.

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 8 August 2012, and which, but for its cancellation, was valid to 8 August 2016. 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 18 September 2015. 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.[2] 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.[3] [2] See Brennan, J. in Re Drake (No. 2) (1979) 2 ALD 634.[3] 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

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 (Business (Long Stay)) visa. The Tribunal has no jurisdiction with respect to the second named applicant.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.[2] 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.[3] [2] See Brennan, J. in Re Drake (No. 2) (1979) 2 ALD 634.[3] 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 on 18 September 2015 because the business operated by the sponsor vent into voluntary liquidation. The applicant decided to remain in Australia. The Tribunal accepts that the applicant attempted to find new employment as a cook but was not successful. The Tribunal finds that, as of the day of the Tribunal’s hearing, 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. The Tribunal further finds that the applicant’s Subclass 457 visa would, but for the cancellation, have ceased on 8 August 2016 in any case.