Singh (Migration)

[2020] AATA 3877

Singh (Migration) [2020] AATA 3877 (13 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kaver Singh
Mrs Amanpreet Kaur Kaur
Mr Agamjot Singh Randhawa

CASE NUMBER:  1809391

HOME AFFAIRS REFERENCE(S):          BCC2017/2561251

MEMBER:Cathrine Burnett-Wake

DATE:13 May 2020

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 457 (Temporary Work (Skilled)) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 13 May 2020 at 12:22 pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled))  – ceased employment longer than 90 days – considerable efforts made to secure a new sponsor – new sponsor approved – new position meets visa conditions – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 189, 198
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 March 2018 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the first named applicant (the applicant) ceased employment with his sponsor and therefore breached condition 8107(3)(b). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 12 December 2018 to give evidence and present arguments. Kathryn Russack the applicant’s then employer and proposed sponsor was also in attendance to provide supporting evidence.

4. 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

5. 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.

   Background

6. On 10 June 2015, the Department approved a Subclass 457 visa for the applicant in the occupation of Cook, nominated by GURAYA GROUP PTY LTD ATF BBSDJ FAMILY TRUST. The Subclass 457 visa was granted on the basis that he was sponsored by a standard business sponsor under subclause 457.223(4). The Subclass 457 visa was granted subject to mandatory condition 8107. Visa condition 8107(3)(b) required that if the applicant ceased employment, the period must not exceed 90 consecutive days.

   Notification procedures

7. 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.  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.

8. 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. 

9. On 23 October 2017, the Department sent the applicant a Notice of Intention to Consider Cancellation (‘the notice’) noting that the Department had received advice that the applicant had ceased employment with GURAYA GROUP PTY LTD ATF BBSDJ FAMILY TRUST on 14 July 2017. As a result, the Department informed the applicant in the relevant notice that his Subclass 457 visa might be cancelled under subsection 116(1)(b) of the Act because he may have breached condition 8107. The notice invited the applicant to comment on why his visa should not be cancelled, and he responded to this invitation.

10. Accordingly, the Tribunal finds that the applicant was given a notice of intention to consider cancellation in relation to his Subclass 457 visa. It also finds that this notice sets out the grounds of the alleged non-compliance in respect of condition 8107 as required under the legislation.

    Does the ground for cancellation exist?

11. 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 8107 attached to the applicant’s visa. Specifically, subclause 8107(3) applies because the Department granted the applicant a subclass 457 visa on the basis that the applicant met the requirements of subclause 457.223(4).

12. Relevantly, condition 8107 broadly required that the applicant only work in a position in the business of the sponsoring employer. As outlined, condition 8107(3)(b) required that the applicant not cease employment for more than 90 consecutive days.

13. At the hearing, the applicant confirmed that he ceased work with his original sponsor in July 2017 and for a period of more than 90 days. He was advised by the owner, that the business was experiencing financial issues and it was ultimately closed.

14. The applicant gave evidence that he then applied for jobs however was not able to secure a further nomination before the visa was cancelled.

15. As such, 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 visa should be cancelled. The circumstances that gave rise to the cancellation as put forward by the applicant are considered below.

    Consideration of discretion

16. 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’.

17. 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. 

18. The applicant was issued a Subclass 457 visa on 10 June 2015 to enable him to remain in Australia and work for his sponsoring employer in the occupation of Cook. The purpose of the Subclass 457 visa scheme was to fill genuine shortages in the Australian skilled job market and the occupation of Cook is included on the list of occupations which have been designated for that purpose.

19. In verbal submissions to the Tribunal at hearing, the applicant advised the Tribunal that upon losing his position he began actively seeking employment and a new nomination application.

20. The applicant advised that he had secured an offer of employment as a Cook with High and Roncey Pty Ltd, which operated a Café in Kyneton, Victoria. Ms Russack, the owner of the Café was in attendance at the Tribunal hearing and told the Tribunal that she was willing for her business to become an approved Standard Business Sponsor and nominate the applicant, however, she was not aware of the process she needed to undertake.

21. The Tribunal agreed to allow time post hearing for Ms Russak to lodge a Standard Business Sponsorship and nomination on behalf of the applicant and that it would delay making any decision until an outcome.

22. On 26 February 2019, the Tribunal received evidence from the applicant that the Standard Business Sponsorship for High and Roncey Pty Ltd was approved, as such agreed to allow more time for the nomination to be finalised before moving to a decision.

23. On 28 April 2019, the applicant wrote to the Tribunal outlining that the nomination lodged by High and Roncey Pty Ltd was refused based on not satisfying Labour Market Testing and that the employer did not want to proceed with a review of the decision. The applicant outlined that he had found a new standard business sponsor. On 24 May 2019, the Tribunal received evidence that a nomination application had been lodged by Harsimran Pty Ltd, listing the applicant as the nominee. Following a request from the applicant for the Tribunal to delay any decision until its outcome, the Tribunal agreed to await the outcome of the nomination application prior to moving to a decision.

24. On 16 August 2019, the applicant wrote to the Tribunal outlining that the nomination application lodged by Harsimran Pty Ltd was refused by the Department and that an application for review of this decision was lodged with the Tribunal. The applicant again requested the Tribunal delay in deciding on the cancellation until an outcome of the nomination review application. The applicant also provided evidence of payslips to the Tribunal that he was currently working with Harsimran Pty Ltd as a Cook in their restaurant located in Seymour.

25. On 12 May 2020, the Tribunal set aside the decision not to approve the nomination for Harsimran Pty Ltd and substituted a decision that the nomination is approved.

26. The approved nomination is consistent with the purpose of the visa scheme for which the applicant’s visa was approved. If his visa were not cancelled he would continue to work within an approved occupation in compliance with the ongoing visa conditions. Despite the gap of more than 90 days, the Tribunal has placed considerable weight on this factor in favour of the applicant when considering whether to exercise the discretion to cancel the applicant’s visa. In particular, the Tribunal notes that the nominee has demonstrated considerable efforts to secure a new sponsor.

27. There is no information on the departmental file indicating that the applicant has had any compliance issues in the past. This weighs against exercising the discretion to cancel.

28. The Tribunal acknowledges that upon the cancellation of her visa, the applicant would become an unlawful non-citizen and be liable to be detained under s189, and liable for removal under s198 if he does not depart voluntarily. The applicant would also face restrictions on making a valid visa application onshore as a result of the cancellation of his visa.

29. Nevertheless, the Tribunal notes that these are the intended consequences of the legislation when a visa is cancelled on the grounds of s.116. Further, the Tribunal notes that the applicant would not be subject to restrictions on applying for or being granted a new visa from overseas.

30. 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). 

31. There is no evidence before the Tribunal to suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements.

32. Therefore, the Tribunal is satisfied that there is little in these matters to weigh against exercising the discretion to cancel.

33. The applicant demonstrated a willingness to seek new employment in order to continue working in his nominated occupation and is currently working as a Cook. If his visa were to continue, the Tribunal considers that the purposes of the visa program would be upheld.

34. Considering the circumstances, the Tribunal concludes that the visa should not be cancelled.

    DECISION

35. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Cathrine Burnett-Wake
    Member