Singh (Migration)

Case [2019] AATA 4186

Singh (Migration) [2019] AATA 4186 (15 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kirpal Singh

CASE NUMBER:  1901708

HOME AFFAIRS REFERENCE(S):           BCC2018/4134124

MEMBER:Antonio Dronjic

DATE:15 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 15 August 2019 at 2:00pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – consideration of discretion – sponsor terminated employment – established own business – no pending nomination application – implied adjournment request to lodge new nomination application – Tribunal declined indefinite adjournment of decision – purpose of visa not fulfilled – breach of no work condition on Bridging visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 363
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Immigration and Border Protection (2014) 236 FCR 393
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li (2013) 239 CLR 332

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision dated 24 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).

  2. 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

  3. The decision record of 24 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 13 December 2016, 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 motor mechanic was Jagdeep Singh (the sponsor);

    ·     On 6 June 2017 the applicant ceased his employment with the sponsoring business;

    ·     A notice of intention to consider cancellation (NOICC) was issued on 16 January 2019;

    ·     On 21 January 2019, the applicant’s representative wrote to the Tribunal advising that the applicant does not intend to make submissions.

    ·     On 24 January 2019, the delegate proceeded to cancel the applicant’s visa.

  4. The applicant applied to the Tribunal on 24 January 2019 for review of the visa cancellation and with his application submitted a copy of the primary decision record.

  5. On 11 June 2019, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to…

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AGLC
Singh (Migration) [2019] AATA 4186
Case
[2019] AATA 4186
Decision Date

CaseChat Overview and Summary

This matter concerned the review of a decision by the delegate to cancel Mr Singh's Subclass 457 (Temporary Work (Skilled)) visa. The cancellation was based on the ground that Mr Singh had breached a condition of his visa by ceasing employment with his sponsor for a period exceeding 60 consecutive days. The Tribunal was required to determine whether this ground for cancellation was made out and, if so, whether the discretion to cancel the visa should be exercised.

The Tribunal found that Mr Singh did indeed breach condition 8107(3)(b) of his visa, as he ceased employment on 6 June 2017 and the period of unemployment exceeded 60 consecutive days. Having established the ground for cancellation, the Tribunal then considered whether to exercise its discretion to cancel the visa. In doing so, it had regard to the applicant's submissions, including his claims of mental health issues, the establishment of his own business, and his intention to lodge a new nomination application. The Tribunal also considered relevant policy guidelines, noting that such guidelines are advisory and not binding.

The Tribunal concluded that the purpose of Mr Singh's visa, which was to work temporarily in Australia as a skilled worker sponsored by a business, had not been fulfilled. Despite his efforts to establish his own business and his stated intention to lodge a new nomination application, he was not employed by an approved sponsor who had successfully nominated him for a position. The Tribunal found that the reasons for cancelling the visa outweighed the reasons for not cancelling it, and therefore affirmed the delegate's decision.

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 24 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 13 December 2016, 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 motor mechanic was Jagdeep Singh (the sponsor);· On 6 June 2017 the applicant ceased his employment with the sponsoring business;· A notice of intention to consider cancellation (NOICC) was issued on 16 January 2019;· On 21 January 2019, the applicant’s representative wrote to the Tribunal advising that the applicant does not intend to make submissions.· On 24 January 2019, the delegate proceeded to cancel the applicant’s visa. The applicant applied to the Tribunal on 24 January 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 14 August 2019. On 5 August 2019, the applicant submitted:· Submissions stating inter alia that he wants to demonstrate that he is making genuine efforts to find the new employment and that a new nomination application will be lodged with the Department within two months as ‘we are in the process of preparing the paperwork’. He outlined his education and work history stating that in November 2017, he opened his own business named Sardarji Services Pty Ltd and that ‘now my company’s owner has been changed’ and that he is now ‘in the process of applying for the nomination to work as a mechanic under my previously owned company’. He stated that the purpose is to fulfil the skill shortage in Australia by working for Sardarji Services Pty Ltd as a motor mechanic, that he always ‘complied with the 457 conditions and always worked with the sponsored employer at the same skill level’, kept the Department informed about his employment situation, stated that he breached his Subclass 457 visa condition due to mental health issues, that he married on 28 January 2017 in India and his wife came to Australia on 6 June 2017, that his marriage was not ‘a pleasant experience’ and has pushed him into depression and that he left his job soon after she arrived in Australia. He claims that it took him six months to recover, that he has always been co-operative in dealing with the Department. He stated that he understands that he breached the condition imposed on his visa but claims that the circumstances of the breach were beyond his control. Finally he asked for more time ‘so that nomination application is decided’ and then ‘circumstances leading to cancelation will be lapse and I can continue my 457 visa until expiry’.· Copies of his educational certificates;· A copy of the work reference letter dated 1 October 2017, provided by Mr Jagdeep Singh of GS Auto Electric and Air Conditioning as evidence of the applicant’s employment at this business from March 2015 to 6 June 2017;· Copies of the applicant’s pay slips;· Copies of business activity statements for Sardarji Services Pty Ltd;· Copy of the skills assessment outcome dated 14 December 2017, as evidence that the applicant was successful with his skills assessment application for the occupation of a motor mechanic;· A copy of the applicant’s superannuation documents;· ASIC company extract for Sardarji Services Pty Ltd;· A copy of a letter from Highlands Medical Centre dated 24 July 2017 as evidence that the applicant was diagnosed with situational stress in early 2017 and that by October 2017 he was ‘stress free and had no signs and symptoms’;· A copy of a letter from Jomar Psychological Services dated 1 August 2019 stating that no significant psychological symptoms were identified during counselling;· A bundle of invoices issued by Sardarji Services Pty Ltd to its customers;· Copies of NAB business account statements for Sardarji Services Pty Ltd;· Copies of purchase receipts for Sardarji Services Pty Ltd;· A copy of the inventory statement;· Copies of the applicant’s tax assessment notices from 2014 to 2018;· Social media business page links; and· A bundle of photographs depicting the applicant at work.

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 GS Auto Electric and Air Conditioning owned by Mr Jagdeep Singh on 6 June 2017. 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 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.[6] 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.[7] [6] See Brennan, J. in Re Drake (No. 2) (1979) 2 ALD 634[7] 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 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.[6] 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.[7] [6] See Brennan, J. in Re Drake (No. 2) (1979) 2 ALD 634[7] 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 motor mechanic on a temporary basis. The applicant lost his employment on 6 June 2017. The applicant decided to remain in Australia from June 2017 to the present time. He claims that from June 2017 to November 2017 he attempted to find a new sponsor. He was not successful. In November 2017, he set up his own business and continues to work for this business to the present day. 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. Based on the evidence before it, the Tribunal finds that the applicant’s visa, but for the cancellation, would have ceased on 12 December 2020 in any case.