Singh (Migration) - [2019] AATA 407

Singh (Migration) [2019] AATA 407 (13 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ravinder Singh
CASE NUMBER:  1724631
HOME AFFAIRS REFERENCE(S):           BCC2017/2780611
MEMBER:Antonio Dronjic
DATE:13 February 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 13 February 2019 at 3:53pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ceased employment more than 90 days – position of cook – sponsor’s business changed hands – work rights removed from bridging visa – new employer to lodge sponsorship and nomination applications – visa would already have ceased – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 48, 116, 140, 363
Migration Regulations 1994, 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
Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492
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 3 October 2017 made by a delegate of the Minister for Immigration and Border Protection 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.
Background to the cancellation of the applicant’s visa
The decision record of 3 October 2017 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 17 April 2014, the applicant was granted a Subclass 457 Business (Long Stay) visa to remain, valid until 17 April 2018;
·The standard business sponsor who most recently nominated the applicant to work as a cook was Alpine Hotel Bright Pty Ltd ATF Vico Unit Trust (the sponsor);
·On 23 April 2017 the applicant ceased his employment with the sponsoring business;
·A notice of intention to consider cancellation (NOICC) was issued on 13 September 2017;
·Despite being granted an extension of time to respond to the NOICC until 27 September 2017, the Department received no response from the applicant;
·On 3 October 2017, the delegate proceeded to cancel the applicant’s visa.
The applicant applied to the Tribunal on 10 October 2017 for review of the visa cancellation and with his application submitted a copy of the primary decision record.
On 26 November 2018, the…

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 Singh (Migration)

Details

AGLC: Singh (Migration) [2019] AATA 407
Case: [2019] AATA 407
Decision Date: 13 February 2019

CaseChat Overview and Summary

This matter concerned the review of a decision by a delegate of the Minister to cancel Mr. Singh's Subclass 457 (Temporary Work (Skilled)) visa. The cancellation was based on the applicant's alleged breach of visa condition 8107(3)(b), which stipulates that the period during which a visa holder ceases employment must not exceed 90 consecutive days. Mr. Singh had ceased employment as a cook with his sponsoring business on 23 April 2017, and the delegate issued a notice of intention to cancel his visa on 13 September 2017, ultimately cancelling the visa on 3 October 2017. Mr. Singh sought review of this decision by the Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to determine if Mr. Singh had indeed breached condition 8107(3)(b) by exceeding the 90-day limit for ceasing employment. If this ground was established, the Tribunal was then required to consider all relevant circumstances, including government policy as outlined in the Procedures Advice Manual (PAM3), in deciding whether to affirm the cancellation.

The Tribunal found that Mr. Singh ceased employment on 23 April 2017 and that the period of unemployment exceeded 90 consecutive days, thereby establishing the ground for cancellation under section 116(1)(b). In considering the exercise of discretion, the Tribunal acknowledged that while PAM3 guidelines could be a useful starting point, they were not legally binding and could not override the wording of the Act. The Tribunal noted that Mr. Singh's intended new employer was undertaking labour market testing and that Mr. Singh was facing criminal charges, but concluded that these factors, along with the fact that Mr. Singh had only applied once to have a work restriction on his bridging visa removed, did not outweigh the reasons for cancelling the visa.

Consequently, the Tribunal affirmed the delegate's decision to cancel Mr. Singh's Subclass 457 visa, finding that the cancellation was the correct and preferable decision in the circumstances.

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 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.Background to the cancellation of the applicant’s visa The decision record of 3 October 2017 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 17 April 2014, the applicant was granted a Subclass 457 Business (Long Stay) visa to remain, valid until 17 April 2018;·The standard business sponsor who most recently nominated the applicant to work as a cook was Alpine Hotel Bright Pty Ltd ATF Vico Unit Trust (the sponsor);·On 23 April 2017 the applicant ceased his employment with the sponsoring business;·A notice of intention to consider cancellation (NOICC) was issued on 13 September 2017;·Despite being granted an extension of time to respond to the NOICC until 27 September 2017, the Department received no response from the applicant;·On 3 October 2017, the delegate proceeded to cancel the applicant’s visa. The applicant applied to the Tribunal on 10 October 2017 for review of the visa cancellation and with his application submitted a copy of the primary decision record. On 26 November 2018, 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 12 February 2019. On 5 February 2019, the applicant’s representative wrote to the Tribunal advising that the applicant ‘has an employer with an SBS approval in place currently undertaking labour market testing as a precursor to that employer filing a nomination application which we will ask the Tribunal to have regard to in the consideration of this matter’. The representative further advised that:The applicant is set down for a Court Hearing of one week, commencing 19 February 2019, in relation to criminal charges as listed to which he has plead not guilty. We have requested the provision of the actual Court date details and will provide these as they come to hand. Given the distressing nature of this upcoming trial and the consequences this has for the applicant’s future employment prospects and residence prospects we ask that this matter be adjourned until Mr Singh’s criminal matter is determined. The representative attached the following documents to his letter:·A copy of an advertisement placed on Seek by Dr Mauve Bar and Lounge dated 24 January 2019 as evidence that this business is seeking to employ full time chefs or cooks; and·A copy of the undertaking of bail for attendance at trial as evidence that the applicant was charged with serious indictable offences and directed to be tried.

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 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 90 consecutive days. In this instance condition 8107 was attached to the applicant’s visa, which was granted on 17 April 2014, and which, but for its cancellation, was valid to 17 April 2018. Based on the evidence before it, including the oral evidence from the applicant, the Tribunal finds that the applicant ceased employment at Alpine Hotel on 23 April 2017. 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 23 April 2017 because the sponsoring business was sold to a different owner and he was mistreated by the head chef. The applicant decided to remain in Australia and from April 2017 to the present time did not work in Australia. I accept that the applicant was prevented from working in Australia by the condition imposed on his bridging visa ‘E’. However, I note that the applicant only applied on one occasion to the Department to have the ‘no work’ condition removed from his bridging visa.