Sultana (Migration) - [2021] AATA 5426

Sultana (Migration) [2021] AATA 5426 (16 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Miss Farheen Sultana
Ms Shanza Madhat Khan
Ms Alfiya Binte Ali
Ms Afrah Zaina Ali
CASE NUMBER:  2017722
HOME AFFAIRS REFERENCE(S):          BCC2020/1466674
MEMBER:Vanessa Plain
DATE:16 December 2021
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 482 - Temporary Skill Shortage visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 16 December 2021 at 1:55pm
CATCHWORDS
MIGRATION – cancellation –Temporary Skill Shortage (Class GK) visa – Subclass 482– applicant ceased employment exceeded 60 consecutive days – employer’s decision to restructure its business was a matter beyond the control of the applicant – employer is approved as a standard business sponsor and currently employers the applicant –– breached condition 8607 – decision under review set aside
LEGISLATION
Migration Act 1958, ss 116,140, 348
Migration Regulations 1994, Schedule 2, cl 482.212
CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 8 December 2020 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 482 - Temporary Skill Shortage visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(a) on the basis that the primary applicant failed to comply with condition 8607(5) attached to their visa. The dependant applicants’ visas were cancelled as a consequence of the primary applicant’s visa cancellation. 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 other applicants’ visas were 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 those other visas 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 them.
The applicants appeared before the Tribunal on 25 June 2021 to give evidence and present arguments. The Tribunal also received evidence from Mr Glenn Mohammad, the director of Zero Technologies Pty Ltd and Zero Mobile Pty Ltd.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel…

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 Sultana (Migration)

Details

AGLC: Sultana (Migration) [2021] AATA 5426
Case: [2021] AATA 5426
Decision Date: 16 December 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the Temporary Skill Shortage (Class GK) visa, subclass 482, held by the applicant. The dispute arose because the applicant had ceased employment for a period exceeding 60 consecutive days, which constituted a breach of condition 8607(5) of their visa. The delegate concluded that this breach provided grounds for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth).

The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa. Specifically, the Tribunal considered whether the applicant's cessation of employment was a matter beyond their control and whether the employer's business restructuring, which led to the applicant's employment with a related entity, constituted a mitigating circumstance. The Tribunal also had to assess the broader implications of cancellation, including the impact on dependants and the applicant's future ability to apply for other visas, as well as Australia's international obligations.

The Tribunal found that while the ground for cancellation under section 116(1)(b) was established due to the breach of condition 8607(5), the exercise of discretion to cancel the visa was not mandatory. The Tribunal placed significant weight on the fact that the applicant's employer's decision to restructure its business was beyond the applicant's control. The applicant continued in the same role with a related entity, and the delay in the new nomination's approval by the Department was the sole reason for the breach. The Tribunal also considered that the applicant's current employer is an approved sponsor and continues to employ the applicant. Furthermore, the Tribunal noted that the cancellation would have significant adverse consequences for the applicant and their dependants, and that these consequences would be manifestly unfair in the circumstances.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa. The Tribunal concluded that the circumstances warranted the exercise of discretion against cancellation, finding that the applicant's actions were not wilful and that the employer's restructuring was the primary cause of the breach.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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? The Delegate’s decision record contends that the applicant has not complied with subclause (5) of condition 8607 attached to their subclass 482 (Temporary Skill Shortage) visa, which states:“8607(5) If the if the holder ceases employment the period during which the holder ceases employment must not exceed 60 consecutive days:[…] The Delegate’s decision record of 8 December 2020 provides as follows:“The standard business sponsor who nominated the visa holder in the most recently approved nomination for the visa is ZERO TECHNOLOGIES PTY LTD (‘the sponsor’), whose nomination was approved on 17 October 2019. The sponsor has advised the Department that the visa holder ceased employment with them effective 24 April 2020. This appears to indicate that the visa holder has not complied with condition 8607(5) because the period during which she ceased employment has exceeded 60 consecutive days. Based on this information, there appear to be grounds for cancelling her visa under s116(1)(b) of the Act because it appears the visa holder has not complied with condition 8607.” A Notice of Intention to Consider Cancellation dated 30 October 2020 (NOICC) was sent to the applicant at their nominated address. The applicant provided a response to the NOICC dated 9 November 2020. On 9 June 2021, the Tribunal invited the applicant to attend the Tribunal to give evidence and present arguments on 25 June 2021. The invitation directed the applicant to provides documents to the Tribunal that the applicant proposed to rely upon in support of their case. The applicant provided the following documents to the Tribunal:(a)The delegate’s decision record(b)Current contract of employment(c)Written submissions of the migration agent (d)Bank statements (e)Statements of the primary applicant dated 9 November 2020 and 10 December 2020 respectively 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 their visa was cancelled under s.116(1)(b) of the Act as the delegate concluded that they had not complied with the conditions of their visa. Specifically, the 8607 condition to which their visa was subject, prescribes in 8607(5) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days.

Decision

Reasons for decision

As this cancellation will impact the visa status of the dependant visa holders, the Tribunal gives this consideration a little weight against cancelling the visa.Legal consequences of a decision to cancel the visa The applicant is currently on a bridging visa as a result of the current review process. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow them to remain in Australia. If that is the case, they have the opportunity to depart Australia. Whilst their failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision. The Tribunal observes that the applicant’s Subclass 482 visa was cancelled under s.116(1)(b) of the Act because they breached the 8607 condition imposed on their visa. Relevantly, PIC 4013(2)(b) prescribes that a person is affected by a risk factor if a visa previously held by the person was cancelled under s.116 of the Act if the visa was of a subclass specified in Column 2 of Part 2 of Schedule 4. The Tribunal finds that a Subclass 482 visa is not a visa specified in the relevant Schedule. Accordingly, the Tribunal is satisfied that the applicant is not prevented by PIC 4013 from re-applying for a temporary work visa The applicant’s employer, Zero Mobile Pty Ltd, is an employer who is approved as a standard business sponsor and currently employers the applicant. The Tribunal is unable to make findings as to whether the applicant will be affected by PIC 4014 as this will depend on the way the applicant leaves Australia. However, if the applicant is affected by PIC 4014, that is the intended consequence of the legislation. The Tribunal is mindful that s.48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s.116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore. If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if they do not voluntarily depart Australia. These are mandatory and intended consequences of the legislation. However, given the matters set out above, the Tribunal considers that theses consequence in the circumstances of this case would be manifestly unfair. The Tribunal therefore gives this consideration some weight against cancelling the visa.Australia’s international obligations 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).

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal finds 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.[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 and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.[2] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429; Lobo v Minister for 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.Purpose of applicant’s travel to and stay in Australia The purpose of the Temporary Skill Shortage (subclass 482) visa is for skilled workers from outside Australia who have been sponsored and nominated by an approved 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 for Mobile Technologies Pty Ltd as a statistician on a temporary basis. The applicant’s employer restricted their business operations in Australia and incorporated a new entity, Zero Mobile Pty Ltd. The applicant continued the same work at Zero Mobile, which submitted a nomination to the Department in respect of the applicant’s employment, which was ultimately refused by the Department and subsequently approved by the Tribunal on 8 December 2021. The Tribunal places significant weight upon the fact that the applicant’s employer’s decision to restructure its business was a matter beyond the control of the applicant and the only reason she was ultimately in breach of her visa condition was due to the fact that the applicant’s subsequent employer had its nomination refused by the Department within 60 days of the applicant’s former employer terminating her employment. For all intents and purposes, the applicant’s role has remained the same and her former and current employer are related entities.