Tello Bernabeu (Migration) - [2021] AATA 4654

Tello Bernabeu (Migration) [2021] AATA 4654 (29 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Rafael Enrique Tello Bernabeu
CASE NUMBER:  2108876
HOME AFFAIRS REFERENCE(S):          BCC2021/490646
MEMBER:Antonio Dronjic
DATE:29 October 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 482 – Temporary Skill Shortage visa.

Statement made on 29 October 2021 at 10:45am

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482– applicant has not complied with condition 8607 – applicant ceased employment – new business had not sponsored or nominated applicant for a temporary visa – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 140, 348,
Migration Regulations 1994, Schedule 2
CASES
COT15 v MIBP (No 1) (2015) 236 FCR 148
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 7 July 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 482 – Temporary Skill Shortage 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 8607(5) of Schedule 8 to the Migration Regulations 1994 (the Regulations), 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 7 July 2021 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 12 July 2019, the applicant was granted a Subclass 482 visa, to remain valid until 12 July 2023.
·The standard business sponsor (SBS) who most recently nominated the applicant to work as an electrician was Chit Chat Communications Pty Ltd (the sponsor).
·On 8 February 2021, the applicant ceased his employment with the sponsoring business.
·A notice of intention to consider cancellation (NOICC) was issued on 28 May 2021.
·On 4 June 2021, the applicant responded to the NOICC. He stated his holiday was due to end in April 2021 and that the agreement with the sponsor was that the business will notify the Department of cessation of employment after he completes his annual leave.
·On 7 July 2021, 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 9 July 2021 for review of the visa cancellation and with his application submitted a copy of the primary decision record. On 12 July 2021, the Tribunal acknowledged the receipt of the review application and invited the applicant to provide material or written arguments that he intends to rely upon. He has failed to do so.
On 20 September 2021, the Tribunal wrote to the applicant advising that it had considered all 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.

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Details

AGLC: Tello Bernabeu (Migration) [2021] AATA 4654
Case: [2021] AATA 4654
Decision Date: 29 October 2021

CaseChat Overview and Summary

This matter concerned the review of a decision by a delegate of the Minister to cancel the applicant's Subclass 482 – Temporary Skill Shortage visa. The cancellation was based on the applicant's alleged failure to comply with condition 8607(5) of the Migration Regulations 1994, which stipulates that a visa holder who ceases employment must not remain unemployed for more than 60 consecutive days. The applicant had ceased employment with his sponsoring business, Chit Chat Communications Pty Ltd, on 8 February 2021, and subsequently applied to the Administrative Appeals Tribunal for a review of the cancellation decision.

The Administrative Appeals Tribunal was required to determine whether the ground for cancellation, namely the breach of condition 8607(5), was established. If so, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, having regard to all relevant circumstances. The applicant had responded to a notice of intention to cancel, stating his holiday was due to end in April 2021 and that his sponsor would notify the Department of his cessation of employment after his annual leave. However, the Tribunal also noted that the applicant had lodged a Form 1023 in association with a student visa application, stating he ceased employment in February 2021.

The Tribunal found that the applicant did indeed cease employment on 8 February 2021 and that the period of unemployment exceeded 60 consecutive days, thereby establishing the ground for cancellation under section 116(1)(b) of the Migration Act 1958. In considering the exercise of discretion, the Tribunal had regard to the applicant's circumstances, including his claim of finding new employment, which was unsubstantiated by documentary evidence. The Tribunal also noted that the applicant was not a licensed electrician and that his new employer had not yet sponsored or nominated him for a temporary visa. The Tribunal concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling it.

Consequently, the Tribunal affirmed the delegate's decision to cancel the applicant's Subclass 482 visa.

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 8607(5) of Schedule 8 to the Migration Regulations 1994 (the Regulations), 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 7 July 2021 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 12 July 2019, the applicant was granted a Subclass 482 visa, to remain valid until 12 July 2023.·The standard business sponsor (SBS) who most recently nominated the applicant to work as an electrician was Chit Chat Communications Pty Ltd (the sponsor).·On 8 February 2021, the applicant ceased his employment with the sponsoring business.·A notice of intention to consider cancellation (NOICC) was issued on 28 May 2021.·On 4 June 2021, the applicant responded to the NOICC. He stated his holiday was due to end in April 2021 and that the agreement with the sponsor was that the business will notify the Department of cessation of employment after he completes his annual leave.·On 7 July 2021, 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 9 July 2021 for review of the visa cancellation and with his application submitted a copy of the primary decision record. On 12 July 2021, the Tribunal acknowledged the receipt of the review application and invited the applicant to provide material or written arguments that he intends to rely upon. He has failed to do so. On 20 September 2021, 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 video hearing scheduled for 28 October 2021. With the same letter the Tribunal invited the applicant to provide all documents he intends to rely on to support his case by 21 October 2021. He did not provide documentary evidence or submissions prior to the hearing. The applicant appeared before the Tribunal on 28 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse, Ms Mary-Ann Kosmas. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conferencing.

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 8607 is attached to the applicant’s visa. The condition in 8607(5) 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 the sponsoring business on 8 February 2021. The Tribunal notes that, according to the primary decision record provided by the applicant with his review application, the Department received written notification from the sponsor advising the applicant ceased employment on 8 February 2021. It was further stated that in association with his student visa application, the applicant lodged a Form 1023 subsequent to his NOICC response dated 28 June 2021 stating that he ceased employment with the sponsor in February 2021. Based on the evidence before it, the Tribunal 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 8607(5). 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 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 482 – Temporary Skill Shortage 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 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 482 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 an electrician on a temporary basis at Chit Chat Communications Pty Ltd. The applicant ceased his employment at the sponsoring business in February 2021. The applicant decided to remain in Australia as a holder of a bridging visa E. He claims that, during the past week, he managed to find new employment with Craig Electricians. No work reference letter or employment offer from the applicant’s new employer was submitted to the Tribunal. He gave evidence that he will have to undertake two weeks of probationary work before he is offered employment. The applicant’s claim that his new employer is willing to sponsor and nominate him for a temporary visa is not substantiated with any documentary evidence. The Tribunal notes that the applicant stated in his evidence that he is not a licensed electrician.