Thankamani Radhakrishnan Pillai (Migration)

Case [2021] AATA 4331

Thankamani Radhakrishnan Pillai (Migration) [2021] AATA 4331 (8 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Renjith Thankamani Radhakrishnan Pillai

CASE NUMBER:  2105020

HOME AFFAIRS REFERENCE(S):          BCC2021/489601

MEMBER:Antonio Dronjic

DATE:8 September 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 08 September 2021 at 4:10pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – employer’s tax and superannuation obligations – consideration of discretion – purpose of visa – did not take up full-time employment despite two offers – circumstances giving rise to breach – beyond the applicant’s control – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 140

Migration Regulations 1994 (Cth), r 2.12; Schedule 8, Condition 8107

CASES
COT15 v MIBP (No 1) (2015) 236 FCR 148
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision dated 16 April 2021 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) 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.

  3. 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.

    Background to the cancellation of the applicant’s visa

  4. The decision record of 16 April 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 15 December 2017, 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 Painting Trades Worker was AJSW Painting Pty Ltd (the sponsor);

    ·On 29 April…

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Details
AGLC
Thankamani Radhakrishnan Pillai (Migration) [2021] AATA 4331
Case
[2021] AATA 4331
Decision Date

CaseChat Overview and Summary

This matter concerned the review of a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by the applicant, Thankamani Radhakrishnan Pillai. The applicant's visa was cancelled under section 116(1)(b) of the Migration Act 1958 (Cth) on the ground that he had not complied with a condition of his visa, specifically condition 8107(3)(b), which stipulated that a visa holder must not cease employment for more than 60 consecutive days. The applicant's wife's visa was automatically cancelled as a consequence of the applicant's visa cancellation, pursuant to section 140(1) of the Act.

The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised. The applicant had ceased employment with his sponsoring business on 29 April 2020, and the period of unemployment exceeded 60 consecutive days, thus satisfying the ground for cancellation under section 116(1)(b). The Tribunal also considered the applicant's submissions regarding the circumstances of his cessation of employment and his subsequent efforts to find new employment, including two offers of full-time work.

In its reasoning, the Tribunal acknowledged that while it could be guided by policy, it was not bound by the Department's Procedures Advice Manual (PAM3) guidelines, as these were administrative guides and not legally binding. The Tribunal found that the applicant's failure to comply with condition 8107(3)(b) was established. Despite the applicant's submissions and the existence of employment offers, the Tribunal concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling it. The Tribunal affirmed the decision to cancel the applicant's visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.Background to the cancellation of the applicant’s visa The decision record of 16 April 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 15 December 2017, 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 Painting Trades Worker was AJSW Painting Pty Ltd (the sponsor);·On 29 April 2020, the applicant ceased his employment with the sponsoring business.·A notice of intention to consider cancellation (NOICC) was issued on 11 March 2021.·On 16 March 2021, the applicant responded to the NOICC.·On 16 April 2021, the delegate proceeded to cancel the applicant’s visa. The applicant applied to the Tribunal on 20 April 2021 for review of the visa cancellation and with his application submitted a copy of the primary decision record. On 13 July 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 7 September 2021. On 5 September 2021, the applicant submitted additional documentary evidence. The list of documents submitted to the Tribunal is attached to this decision record as Attachment A. The applicant appeared before the Tribunal on 7 September 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages. The applicant was represented in relation to the review by his registered migration agent. 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 his visa was cancelled under s.116(1)(b) of the Act, as the delegate concluded that he had not complied with the conditions of his visa. Specifically, the 8107 condition to which his visa was subject prescribes in 8107(3)(b) that, if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 60 consecutive days. The Tribunal explained that the applicant’s wife’s visa was automatically cancelled by operation of s.140(1) of the Act, which made the cancellation of her visa self-executing on the cancellation of his visa.

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 the sponsoring business on 29 April 2020. 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.[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 had 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 DronjicMemberATTACHMENT A: DOCUMENT LIST·Letter from Saneesh Palakkattu George (Undated)·Letter from Jino Kudilil Joseph (Undated)·Letter from Jashad Mullasseri (Undated)·Letter from Seby Sebastian (Undated)·Letter from Annamalai Adaikkappan dated 02/09/2021·Letter from Solmon Palakkattu George (Undated)·Letter from Anil Jose (Undated)·Letter from Shibu Joseph (Undated)·Letter from Pappachan Saji Kunnumpurath (undated)·Letter of offer from Kagcon dated 23/08/2021·Letter from Siju Alex (Undated)·Letter from Anish (Undated)·Letter from Joshy George dated 02/09/2021·Letter from Unik Constructions (Undated)·Letter of offer from Unik Constructions dated 02/07/2021

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.[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 for AJSW Painting Pty Ltd as a painting trade worker on a temporary basis. The applicant was unfortunate to lose his job in April 2020. He decided to remain in Australia and try to find a new employer. Despite being permitted to work in Australia from April 2021, and despite having two offers of full-time employment, the applicant did not commence full-time employment. He continues to work as subcontractor using his own ABN number. According to the primary decision record, Unik Constructions, one of those two companies that offered full-time employment to the applicant, lodged an application for a temporary activities visa (Subclass 408) on 15 March 2021 but decided to withdraw that application on 25 March 2021.