Paniyadi (Migration) - [2021] AATA 3946

Paniyadi (Migration) [2021] AATA 3946 (30 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Pritish Paniyadi
Ms Vaishalli Pritish Paniyadi
Mr Shivaansh Paniyadi
CASE NUMBER:  2015364
HOME AFFAIRS REFERENCE(S):          BCC2020/1912125
MEMBER:Amanda Upton
DATE:30 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 482 - Temporary Skill Shortage visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 30 September 2021 at 4:45pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – applicant ceased employment over 60 days – company restructure – impact of the COVID19 pandemic – travel outside Australia not possible – applicant obtained new employment interstate – financial hardship – decision under review set aside
LEGISLATION
Migration Act 1958, ss 116, 140, 348
Migration Regulations 1994, Schedule 8; Condition 8607
CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REANS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 9 October 2020 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(1)(b) on the basis that the applicant had ceased working for his sponsoring employer on 3 June 2020 and had not returned to work for that employer for more than 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 8 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Vaishalli Pritish Paniyadi. The Tribunal found the evidence of Ms Paniyadi and the applicant to be honest and credible.
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…

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 Paniyadi (Migration)

Details

AGLC: Paniyadi (Migration) [2021] AATA 3946
Case: [2021] AATA 3946
Decision Date: 30 September 2021

CaseChat Overview and Summary

This matter concerned an application to review the cancellation of the applicant's Temporary Skill Shortage (Class GK) visa, subclass 482. The applicant had ceased employment with Brennan IT Pty Ltd on 3 June 2020, exceeding the 60-day period permitted by condition 8607 of their visa. The Tribunal, presided over by Amanda Upton, was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The primary legal issue was whether the applicant's failure to comply with visa condition 8607, which stipulated that a visa holder must not cease employment for more than 60 consecutive days, constituted a valid ground for visa cancellation under section 116(1)(b) of the Migration Act 1958 (Cth). If a ground for cancellation was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances, including those outlined in the Department's Procedures Advice Manual (PAM3), while acknowledging that PAM3 guidelines are not legally binding.

The Tribunal found that the applicant had indeed breached condition 8607 by ceasing employment for over 60 days, thus establishing the ground for cancellation under section 116(1)(b). However, the Tribunal then exercised its discretion not to cancel the visa. In reaching this decision, the Tribunal considered the applicant's circumstances, including the impact of the COVID-19 pandemic, a company restructure, the inability to travel overseas, and the applicant's subsequent interstate employment and financial hardship. The Tribunal noted that while PAM3 guidelines are not binding, they provide a useful framework for exercising discretion.

Consequently, the Tribunal set aside the decision to cancel the applicant's subclass 482 visa and substituted a decision not to cancel it. The Tribunal clarified that it had no jurisdiction concerning any other applicants.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 is satisfied that the holder did not comply with a condition of their visa. In this instance condition. In this instance condition 8607 attached to the applicant’s visa. At 8607(5) this condition requires that the visa holder must not cease employment for a period exceeding 60 consecutive days. The applicant concedes that he did not comply with the visa condition as he had ceased employment for over 60 days. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.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. 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. 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 Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the Tribunal hearing. The Tribunal informed the applicant that his visa was cancelled under s.116(1)(b) of the Act as the delegate concluded that he had not complied with a condition of his visa. Specifically, condition 8607, to which his visa was subject, prescribes in 8607(5) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.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.Amanda UptonMember

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.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. 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. 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 Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the Tribunal hearing. The Tribunal informed the applicant that his visa was cancelled under s.116(1)(b) of the Act as the delegate concluded that he had not complied with a condition of his visa. Specifically, condition 8607, to which his visa was subject, prescribes in 8607(5) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days. The Tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made it out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances. The applicant was granted a subclass 482 visa on 10 July 2019. It expires on 10 July 2023. The standard business sponsor who nominated the applicant in the most recently approved nomination for the visa was Brennan IT Pty Ltd whose nomination was approved on 7 May 2019. The applicant ceased employment with the company on 3 June 2020.Purpose of the applicant’s travel and stay in Australia The applicant arrived in Australia on 3 February 2019. His family, his wife and 6-year-old did not initially accompany him and they arrived in September 2019. The applicant’s wife works as a Medical Administrator at an ultrasound clinic and his son is in year 1 at school. At the time of the hearing the applicant was situated in Brisbane as he had started his employment, and his wife and son were still in Sydney.