Ondong'a (Migration) - [2021] AATA 3112

Ondong'a (Migration) [2021] AATA 3112 (9 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Evans Magati Ondong'a
Mrs Anne Manoti Nyaenya
Mr Gabriel Ondong'a Magati
Miss Janelle Mikaila Magati
Mr Joel Nyaenya Magati
CASE NUMBER:  2101964
HOME AFFAIRS REFERENCE(S):          BCC2019/5833349
MEMBER:Vanessa Plain
DATE:9 July 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 482 - Temporary Skill Shortage visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 9 July 2021 at 11:30am
CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482– applicant breached condition 8107(3)(b) – applicant ceased employment for a period exceeding 60 consecutive days – applicant took honest and reasonable steps to procure new employment – applicant has gained further employment with another sponsor – new approved standard business sponsor – decision under review set aside
LEGISLATION
Migration Act 1958, ss 116,140, 348
Migration Regulations 1994
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 for review of a decision dated 15 February 2021 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 482 - Temporary Skill Shortage visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(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.
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.
The applicants appeared before the Tribunal on 9 July 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Damien Cerantonio, the proprietor of the Great Ocean Road Resort.
The applicants were represented in relation to the review by their registered migration agent.
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…

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 Ondong'a (Migration)

Details

AGLC: Ondong'a (Migration) [2021] AATA 3112
Case: [2021] AATA 3112
Decision Date: 9 July 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the Temporary Skill Shortage (Class GK) visa, subclass 482, held by the applicant. The dispute arose because the applicant had ceased employment for a period exceeding 60 consecutive days, which constituted a breach of condition 8607(5) of their 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 in light of all relevant circumstances.

The Tribunal first considered whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out. It found that the applicant had indeed breached condition 8607(5) by ceasing employment for more than 60 consecutive days. However, the cancellation of a visa under this section was not mandatory, requiring the Tribunal to then consider the exercise of discretion. In its assessment, the Tribunal had regard to the applicant's purpose for being in Australia, the steps taken to secure new employment, and the potential consequences of cancellation, including impacts on dependants and limitations on future visa applications.

In exercising its discretion, the Tribunal placed significant weight on the applicant's demonstrable efforts to obtain alternative employment following the unsatisfactory changes to their initial employment contract. The Tribunal noted that the applicant had secured new employment with an approved standard business sponsor, Great Ocean Road Resort, which had formally nominated them for a position. The Tribunal also considered the potential negative consequences of cancellation, such as the applicant becoming an unlawful non-citizen and the impact on dependants, finding these consequences would be manifestly unfair in the circumstances.

Consequently, the Tribunal concluded that the decision to cancel the applicant's visa should be set aside. The Tribunal found that while the ground for cancellation existed, the exercise of discretion favoured not cancelling the visa, given the applicant's proactive steps to rectify their visa status and the unfairness of the potential consequences.

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 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? The Delegate’s decision record contends that the applicant has not complied with subclause (5) of condition 8607 attached to their subclass 482 (Temporary Skill Shortage) visa, which states:“8607(5) If the if the holder ceases employment the period during which the holder ceases employment must not exceed 60 consecutive days:[…] The Delegate’s decision record of 15 February 2021 provides as follows:“The standard business sponsor who nominated the visa holder in the most recently approved nomination for the visa is Clifton Springs Golf Club (‘the sponsor’), whose nomination was approved on 8 June 2018. The sponsor has advised the Department that the visa holder ceased employment with them effective 15 October 2019. This appears to indicate the visa holder has not complied with condition 8607(5) because the period during which the visa holder has ceased employment has exceeded 60 consecutive days.” A Notice of Intention to Consider Cancellation dated 7 May 2020 (NOICC) was sent to the applicant at their nominated address. The applicant provided responses to the NOICC dated 11 May, 19 May, 5 June and 3 July 2020 respectively. On 4 June 2021, the Tribunal invited the applicant to attend the Tribunal to give evidence and present arguments on 9 July 2021. The invitation directed the applicant to provides documents to the Tribunal that the applicant proposed to rely upon in support of their case. The applicant provided the following documents to the Tribunal:(a)The delegate’s decision record(b)Current contract of employment dated 11 March 2021 with Great Ocean Road Resort (and further contract of employment submitted in support of the employer nomination)(c)Great Ocean Road SBS Nomination (approved 2 June 2021)(d)Department of Home Affairs acknowledgment of employer nomination application received dated 4 July 2021 (e)Written submissions of the migration agent (f)Bridging Visa E with working rights(g)Declaration of the primary applicant (verifying contents of migration agent written submissions)(h)Witness statements of the primary and secondary applicants(i)Witness statement of Damien Cerantonio, director of Great Ocean Road Resort Hotel Group Pty Ltd (j)A suite of documents evidencing the primary applicant’s employment at Great Ocean Road Resort (k)A suite of documents evidencing the primary applicant’s employment with Eureka (l)Character references

Decision

Reasons for decision

As this cancellation will impact the visa status of the dependant visa holders, the Tribunal gives this consideration a little weight against cancelling the visa.Legal consequences of a decision to cancel the visa The applicant is currently on a bridging visa as a result of the current review process. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow them to remain in Australia. If that is the case, they have the opportunity to depart Australia. Whilst their failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision. The Tribunal observes that the applicant’s Subclass 482 visa was cancelled under s.116(1)(b) of the Act because they breached the 8607 condition imposed on their visa. Relevantly, PIC 4013(2)(b) prescribes that a person is affected by a risk factor if a visa previously held by the person was cancelled under s.116 of the Act if the visa was of a subclass specified in Column 2 of Part 2 of Schedule 4. The Tribunal finds that a Subclass 482 visa is not a visa specified in the relevant Schedule. Accordingly, the Tribunal is satisfied that the applicant is not prevented by PIC 4013 from re-applying for a temporary work visa The applicant’s proposed employer, Great Ocean Road Report is an employer who is approved as a standard business sponsor and has submitted a nomination form in relation to the applicant on 4 July 2021. The Tribunal is unable to make findings as to whether the applicant will be affected by PIC 4014 as this will depend on the way the applicant leaves Australia. However, if the applicant is affected by PIC 4014, that is the intended consequence of the legislation. The Tribunal is mindful that s.48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s.116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore. If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if they do not voluntarily depart Australia. These are mandatory and intended consequences of the legislation. However, given the matters set out above, the Tribunal considers that theses consequence in the circumstances of this case would be manifestly unfair. The Tribunal therefore gives this consideration some weight against cancelling the visa.Australia’s international obligations In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal finds 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 and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.[2] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429; Lobo v Minister for 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.Purpose of applicant’s travel to and stay in Australia The purpose of the Temporary Skill Shortage (subclass 482) visa is for skilled workers from outside Australia who have been sponsored and nominated by an approved 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 the Clifton Springs Golf Club as a Chef on a temporary basis. The applicant was unfortunately placed in an untenable workplace environment when in October 2019, the employer provided the applicant with an updated contract of employment that included less favourable terms that the contract which he was originally working under. The Tribunal places significant weight upon the steps taken by the applicant to obtain alternative employment from October 2019 onwards, which is wholly supported by the suite of contemporaneous documents produced by him as set out above, as evidence of the genuine steps taken by the applicant to rectify the breach of his visa condition. Importantly, in March 2021, after the nomination by Eureka Corporate Pty Ltd was refused by the Department, the applicant immediately obtained employment with Great Ocean Road Resort (as he was entitled to do given the full working rights attached to his bridging visa) and this business has formally nominated the applicant for a position in the business following approval of its SBS nomination. The witness statement of the director of Great Ocean Road Resort provides that the applicant is integral to the business.