Pandatuan (Migration) - [2021] AATA 3543

Pandatuan (Migration) [2021] AATA 3543 (18 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Freddie Cuaresma Pandatuan
CASE NUMBER:  2105624
HOME AFFAIRS REFERENCE(S):          BCC2020/1543264
MEMBER:Antonio Dronjic
DATE:18 August 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 18 August 2021 at 11:06am

CATCHWORDS
MIGRATION– cancellation– 457 (Temporary Work (Skilled))– applicant has not complied with the condition 8107 – has not been employed for a period exceeding 60 days – an illegal non-citizen – applicant applied for a spouse visa – COVID-19 pandemic –applicant was not able to secure another nomination – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 82, 116, 140
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 26 April 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s 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 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.
Background to the cancellation of the applicant’s visa
The decision record of 26 April 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 recently nominated the applicant to work as a panel beater was Ama Group Solutions Pty Ltd (the sponsor);
·On 30 April 2020, the applicant ceased his employment with the sponsoring business;
·A notice of intention to consider cancellation (NOICC) was issued on 30 September 2020;
·On 18 October 2020, the applicant lodged a spouse visa application with the Department and was granted a bridging visa ‘A’;
·On 20 October 2020, the applicant’s representative responded to the NOICC;
·On 26 April 2021, the delegate proceeded to cancel the applicant’s visa.
The applicant applied to the Tribunal on 30 April 2021 for review of the visa cancellation and with his application submitted a copy of the primary decision record.
On 2 July 2021, 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 telephone hearing scheduled for 17 August 2021.
The applicant appeared before the Tribunal on 17 August 2021 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. 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.

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Details

AGLC: Pandatuan (Migration) [2021] AATA 3543
Case: [2021] AATA 3543
Decision Date: 18 August 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by Mr. Pandatuan. The delegate had cancelled the visa under s.116(1)(b) of the *Migration Act 1958* (Cth) on the basis that Mr. Pandatuan had breached visa condition 8107(3)(b) by ceasing employment for a period exceeding 60 consecutive days. Mr. Pandatuan had lodged a spouse visa application and was granted a bridging visa after his Subclass 457 visa was cancelled.

The Tribunal was required to determine whether the ground for cancellation under s.116(1)(b) was made out, and if so, whether the visa should be cancelled in the exercise of the Minister's discretion. Specifically, the Tribunal had to assess if Mr. Pandatuan had failed to comply with visa condition 8107(3)(b), which mandates that the period of cessation of employment must not exceed 60 consecutive days.

The Tribunal found that Mr. Pandatuan ceased employment with his sponsoring business on 30 April 2020 and that this period of unemployment exceeded 60 consecutive days, thereby satisfying the ground for cancellation under s.116(1)(b). In considering the exercise of discretion, the Tribunal acknowledged that while it could be guided by policy documents such as the Procedures Advice Manual (PAM3), it was not bound by them, as they are administrative guides and cannot elevate beyond the wording of the legislation. The Tribunal gave significant weight to the fact that the purpose of the Subclass 457 visa, which is to enable a business to sponsor a skilled worker when an Australian cannot be found, no longer existed after Mr. Pandatuan ceased working for his sponsor.

Having considered all the circumstances, including the applicant's submissions and the purpose of the visa, the Tribunal concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling it. Accordingly, the Tribunal affirmed the decision to cancel Mr. Pandatuan's Subclass 457 visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.Background to the cancellation of the applicant’s visa The decision record of 26 April 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 recently nominated the applicant to work as a panel beater was Ama Group Solutions Pty Ltd (the sponsor);·On 30 April 2020, the applicant ceased his employment with the sponsoring business;·A notice of intention to consider cancellation (NOICC) was issued on 30 September 2020;·On 18 October 2020, the applicant lodged a spouse visa application with the Department and was granted a bridging visa ‘A’;·On 20 October 2020, the applicant’s representative responded to the NOICC;·On 26 April 2021, the delegate proceeded to cancel the applicant’s visa. The applicant applied to the Tribunal on 30 April 2021 for review of the visa cancellation and with his application submitted a copy of the primary decision record. On 2 July 2021, 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 telephone hearing scheduled for 17 August 2021. The applicant appeared before the Tribunal on 17 August 2021 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing. The applicant is 42 years of age and a national of the Philippines. His former wife passed away in March 2018. The applicant has four underage children from that marriage who are living in the Philippines with his sister in law. The applicant is financially supporting his children by sending approximately $500.00 per month. His sister and brother live in the Philippines and he does not have any relatives in Australia. Prior to arriving in Australia as the holder of a Subclass 457 visa in April 2018, he worked as a panel beater in Bahrain for approximately three years. He owns a house in the Philippines where his nephew currently resides rent free. In April 2018, the applicant commenced employment at Gemini Accident Repair Centres Pty Ltd. He worked there until 30 April 2020. The applicant gave evidence that he ceased his employment at the sponsoring business because he was harassed by his former employer. He stated that, because of the COVID-19 pandemic, there was not enough work for panel beaters, and he was asked to do cleaning jobs instead.

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. 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 30 April 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 Migration Regulations 1994 (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 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 applicant’s Subclass 457 (Temporary Work (Skilled)) visa.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 Migration Regulations 1994 (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.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 panel beater on a temporary basis. The applicant lost his employment on 30 April 2020. The applicant decided to remain in Australia. He claims that he was unable to find new employment until June 2021 because of lack of employment opportunities due to the COVID-19 pandemic. 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 purpose of granting a temporary work visa is to enable an Australian business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. The Subclass 457 visa is a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation. The Tribunal finds that this purpose no longer exists as the applicant ceased working for his sponsor on 30 April 2020. The Tribunal gives significant weight to this consideration.The reason for and extent of the breach