Sindhu (Migration) - [2019] AATA 5501

Sindhu (Migration) [2019] AATA 5501 (29 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Vikas Sindhu
CASE NUMBER:  1902390
HOME AFFAIRS REFERENCE(S):          BCC2018/4065347
MEMBER:Antonio Dronjic
DATE:29 August 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Statement made on 29 August 2019 at 11:47am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – applicant ceased employment over 90 days – occupation of Cook – new business owners ceased employment contract – new employer nomination approval delayed – visa expired during review process – closure of the 457 program – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 140, 348
Migration Regulations 1994, Schedule 2; Schedule 8; Condition 8107; r 2.12
CASES
Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Rani & Ors v MIMA (1997) 80 FCR 379
Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492
Tien & Ors v MIMA (1998) 89 FCR 80
Vishnumolakala v Minister for Immigration [2006] FMCA 1209
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 31 January 2019 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 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.
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 31 January 2019 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The Tribunal summarises those reasons and findings as…

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 Sindhu (Migration)

Details

AGLC: Sindhu (Migration) [2019] AATA 5501
Case: [2019] AATA 5501
Decision Date: 29 August 2019

CaseChat Overview and Summary

This matter concerned the review of a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by the first applicant, Mr. Sindhu. The second applicant's visa was automatically cancelled as a consequence of the first applicant's visa cancellation, and the Tribunal lacked jurisdiction to review this secondary cancellation. The primary dispute centred on whether the delegate had correctly cancelled Mr. Sindhu's visa under section 116(1)(b) of the *Migration Act 1958* (Cth) due to a breach of a visa condition.

The legal issues before the Tribunal were whether the applicant had failed to comply with condition 8107(3)(b) of his visa, which stipulated that the period of cessation of employment must not exceed 90 consecutive days, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to consider the applicant's submissions and evidence, including the circumstances surrounding his cessation of employment and subsequent attempts to secure new employment and sponsorship, in light of the relevant legislative provisions and established case law regarding the application of policy guidelines.

The Tribunal found that the applicant ceased employment on 18 June 2018 and that the period of unemployment exceeded 90 consecutive days, thereby satisfying the ground for cancellation under section 116(1)(b). In exercising its discretion, the Tribunal considered the applicant's circumstances, including the sale of the sponsoring business, his efforts to find new employment, and the delay in his prospective employer obtaining sponsorship approval. However, the Tribunal concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling it, noting that policy guidelines, while informative, were not binding and could not override the wording of the Act.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa.

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 31 January 2019 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 20 June 2015, the applicant was granted a Subclass 457 Business (Long Stay) visa to remain, valid until 20 June 2019;·The standard business sponsor who most recently nominated the applicant to work as a cook was Jamil Karadsheh (the sponsor);·On 18 June 2018, the applicant ceased his employment with the sponsoring business;·A notice of intention to consider cancellation (NOICC) was issued on 16 January 2019;·On 31 January 2019, after considering the applicant’s response to the NOICC, the delegate proceeded to cancel the applicant’s visa. The applicant applied to the Tribunal on 1 March 2019 for review of the visa cancellation and with his application submitted a copy of the primary decision record. On 11 June 2019, 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 hearing scheduled for 27 August 2019. On 26 August 2019, the applicant’s representative submitted:·A copy of the applicant’s response to the NOICC;·A copy of the notification of cessation of employment letter sent by the sponsor to the Department;·A copy of the employment agreement between the applicant and HD MPonds Pty Ltd dated 10 July 2018;·A copy of the applicant’s skills assessment letter dated 13 May 2019 as evidence that he has satisfactorily completed skills assessment for the occupation of a chef;·Submissions outlining the applicant’s immigration and work history (Tribunal folios 29-31); and·A copy of the sponsorship approval letter for HD MPonds Pty Ltd dated 14 December 2018. The applicant appeared before the Tribunal on 27 August 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent who attended the hearing. 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 8107, to which his visa was subject, prescribes in 8107(3)(b) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. The Tribunal explained why it does not have jurisdiction in respect of the secondary applicant.

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 20 June 2015, and which, but for its cancellation, was valid to 20 June 2019. 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 June 2018. 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 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 cook on a temporary basis. The applicant ceased his employment on 18 June 2018 because the business operated by the sponsor was sold to the new owners. The applicant decided to remain in Australia. The Tribunal accepts that the applicant managed to find new employment in July 2018. At that time, the applicant’s new employer was not an approved sponsor. Despite lodging the sponsorship application in August 2018, it was not until December 2018 that the Department approved the application. Based on the applicant’s evidence, the Tribunal finds that the prospective employer did not lodge a Subclass 482 nomination application with the Department as at the time of the Tribunal hearing, despite being approved as a sponsor on 14 December 2018.