RAIGAMAGE (Migration) - [2017] AATA 2515

RAIGAMAGE (Migration) [2017] AATA 2515 (14 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Kushmali Thivankani Perera Raigamage
Mr Rasika Ranjitha Hapuarachchige
CASE NUMBER:  1619925
DIBP REFERENCE(S):  BCC2016/3107018
MEMBER:Danica Buljan
DATE:14 August 2017
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-named applicant.

Statement made on 14 August 2017 at 4:15pm

This is an application for review of a decision dated 22 November 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’).
The delegate cancelled the visa under subsection 116(1)(b) on the basis that the first-named applicant (‘the applicant’) had not complied with condition 8107 of her subclass 457 visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The second-named applicant’s visa was automatically cancelled as a consequence of that cancellation. This was not by a decision, but by force of the operation of subsection 140(1) of the Act, which made the cancellation of this other visa self-executing upon the cancellation of the applicant’s visa.[1] As no decision was involved in the visa cancellation under subsection 140(1), the Tribunal has no jurisdiction with respect to the second-named applicant.
[1] See Rani & Ors v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80 at 96
The applicant lodged an application for review with the Tribunal on 25 November 2016, and she included a copy of the primary decision record with this application.[2] The Tribunal has before it the departmental file[3] relating to the applicant. It has also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.[4]
[2]     AAT Case file 1619925 (T1), f.1-7
[3]     D1 - Departmental file BCC2016/3107018, folio numbered 1-44
[4]     T1 - AAT case file 1619925, folio number 1-79
On 29 March 2017 the Tribunal invited the applicant to comment on certain information before it, including departmental records. The Tribunal also invited the applicant to provide information that would be relevant to the exercise of its discretion whether to cancel her subclass 457 visa. This invitation included copies of the relevant legislative provisions and condition 8107 to facilitate the applicant’s response.[5]
[5] T1, f.25-29
On 11 April 2017 the Tribunal received a submission from the applicant’s representative in response to its invitation.[6] On 17 May 2017 the Tribunal also received additional evidence at the hearing in support of the application for review.[7]
[6] T1, f.39-41
[7] T1, f.61-66
The Tribunal Hearing
On 19 April 2017 the applicant was invited (through her migration agent) to appear before the Tribunal on 17…

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

Case: [2017] AATA 2515
Decision Date: 14 August 2017

CaseChat Overview and Summary

This matter concerned the cancellation of a Temporary Business Entry (Class UC) visa, subclass 457, held by the applicant. The applicant had been granted the visa in July 2015 to work as an ‘ICT Customer Support Officer’ with Community Training Initiatives Pty Ltd. Her employment with this sponsor ceased in January 2016 due to redundancy. The Department of Immigration subsequently issued a notice of intention to consider cancellation, noting that the applicant had not returned to work for her sponsor or an associated entity within 90 days of ceasing employment. The Tribunal was required to determine whether the grounds for cancellation were made out and, if so, whether the discretion to cancel the visa should be exercised.

The primary legal issue before the Tribunal was whether the applicant's subclass 457 visa should be cancelled under section 116 of the *Migration Act 1958* (Cth). Specifically, the Tribunal had to consider the ground that the applicant had ceased to be employed by her sponsoring employer and had not returned to employment with that sponsor or an associated entity within 90 days. If this ground was established, the Tribunal then had to consider whether, in all the relevant circumstances, the visa should be cancelled, including any submissions made by the applicant to show cause why it should not be cancelled.

The Tribunal found that the ground for cancellation was established, as the applicant's employment had ceased and she had not returned to employment within the prescribed 90-day period. In considering the exercise of discretion, the Tribunal noted that while the onus of establishing facts leading to cancellation rests with the Minister, the applicant bears the responsibility of providing sufficient detail to enable the decision-maker to establish relevant facts. The Tribunal considered the applicant's submissions and evidence, including her efforts to find new employment and the lack of labour shortages in the information technology sector. However, it also took into account the applicant's responsibility to abide by her visa conditions and the fact that her qualifications were recognised in Sri Lanka.

The Tribunal affirmed the decision to cancel the applicant's visa. It concluded that the discretion to cancel the visa should be exercised, finding no compelling reasons to depart from the Department's decision.

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 The applicant gave evidence that she had first arrived in Australia as the holder of a student visa in 2008. The applicant also stated that she had successfully applied for extensions to her student visa so that she could undertake a Masters qualification. In addition, the applicant gave evidence that she was granted a subclass 457 visa on 13 July 2015 on the basis that she would be employed as an ‘ICT Customer Support Officer’ (ANZSCO Code 313112) with Community Training Initiatives Pty Ltd, a registered training organisation providing government funded courses to students. The applicant stated that her position of employment with Community Training Initiatives Pty Ltd was based in Spotswood, Victoria and that her subclass 457 visa was granted for a period of 4 years until 13 July 2019. Departmental records confirm the applicant’s oral evidence regarding these matters. Accordingly, and having regard to this evidence, the Tribunal finds that the Department granted the applicant a subclass 457 visa on the basis that she was sponsored by a standard business sponsor under subclause 457.223(4). Furthermore, the applicant gave evidence that her employment with Community Training Initiatives Pty Ltd ended on 22 January 2016 when she was made redundant, along with approximately 20 other employees. At the hearing the applicant also provided copies of two letters (both dated 22 January 2016) addressed to her by Community Training Initiatives Pty Ltd to confirm this.[14] [14] T1, f.65-66Notification 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.[15] 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.[15] 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.[16] [16] See Zhao v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1235 at [25] and [32] On 11 November 2016[17] the Department sent the applicant a ‘Notice of Intention to Consider Cancellation’ (‘the notice’) noting that it had received written advice from her sponsoring employer on 8 April 2016 that she had ceased her employment with her sponsor effective 18 March 2016. The notice also stated that neither the applicant nor the sponsor had advised the Department that she had returned to work for the sponsor, or an associated entity, within 90 days of ceasing that employment.[18] [17] D1, f.31-33[18] This information was included in the invitation sent to the applicant under section 359A of the Act on 29 March 2017. See T1, f.25-29

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 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 The applicant gave evidence that she had first arrived in Australia as the holder of a student visa in 2008. The applicant also stated that she had successfully applied for extensions to her student visa so that she could undertake a Masters qualification. In addition, the applicant gave evidence that she was granted a subclass 457 visa on 13 July 2015 on the basis that she would be employed as an ‘ICT Customer Support Officer’ (ANZSCO Code 313112) with Community Training Initiatives Pty Ltd, a registered training organisation providing government funded courses to students. The applicant stated that her position of employment with Community Training Initiatives Pty Ltd was based in Spotswood, Victoria and that her subclass 457 visa was granted for a period of 4 years until 13 July 2019. Departmental records confirm the applicant’s oral evidence regarding these matters. Accordingly, and having regard to this evidence, the Tribunal finds that the Department granted the applicant a subclass 457 visa on the basis that she was sponsored by a standard business sponsor under subclause 457.223(4). Furthermore, the applicant gave evidence that her employment with Community Training Initiatives Pty Ltd ended on 22 January 2016 when she was made redundant, along with approximately 20 other employees. At the hearing the applicant also provided copies of two letters (both dated 22 January 2016) addressed to her by Community Training Initiatives Pty Ltd to confirm this.[14] [14] T1, f.65-66Notification 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.[15] 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.[15] 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.[16] [16] See Zhao v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1235 at [25] and [32]

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 Discretion 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.[24] [24] 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'. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[25] 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.[26] [25] See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634[26] 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 taken into account the applicant’s various submissions and evidence. This includes submissions dated 17 November 2016[27] and 11 April 2017[28], the oral evidence from the applicant and her spouse (the second-named applicant) at the hearing and the documentary evidence[29] she submitted at the hearing.[27] D1, f.19-20[28] T1, f.39-41[29] T1, f.65-66