Yang (Migration)

Case [2021] AATA 361

Yang (Migration) [2021] AATA 361 (10 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Yunqi Yang
Mr Bo Liang
Master Weijian Liang
Miss Yinyi Liang

CASE NUMBER:  2013582

HOME AFFAIRS REFERENCE(S):          BCC2020/1620404

MEMBER:Antonio Dronjic

DATE:10 February 2021

PLACE OF DECISION:  Melbourne

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

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 10 February 2021 at 10:40am

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – ceased employment for more than 90 days – sponsoring business closed with no notice shortly before visa due to expire – application for visa to work for new sponsor refused – no new sponsorship in 20 months since then – discretion to cancel visa – members of family unit – decision under review affirmed for first applicant, no jurisdiction for other applicants

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140(1), 348
Migration Regulations 1999 (Cth), Schedule 8, condition 8107(3)(b)

CASES
COT15 v MIBP (No 1) (2015) 236 FCR 148
Rani v MIMA (1997) 80 FCR 379
Tien 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 31 August 2020 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) 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 first named applicant (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.

  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 31 August 2020 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 September 2016, the applicant was granted a Subclass 457 visa to remain valid until 15 September 2020;

    ·The standard business sponsor who nominated the applicant…

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AGLC
Yang (Migration) [2021] AATA 361
Case
[2021] AATA 361
Decision Date

CaseChat Overview and Summary

This matter concerned the review of a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa granted to the first applicant. The other applicants' visas were automatically cancelled as a consequence of the first applicant's visa cancellation, and the Tribunal determined it had no jurisdiction to consider their cases. The first applicant's visa was granted in September 2016, valid until September 2020, and sponsored by Skycrest Constructions Pty Ltd. The applicant ceased employment on 4 June 2019, and a notice of intention to cancel her visa was issued on 3 July 2020, with the visa ultimately cancelled on 31 August 2020.

The primary legal issue before the Tribunal was whether the delegate's decision to cancel the applicant's visa should be affirmed. This required determining if a ground for cancellation existed under section 116 of the Migration Act 1958 (Cth) and, if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to consider whether the applicant had complied with condition 8107(3)(b) of her visa, which stipulated that the period of cessation of employment must not exceed 90 consecutive days.

The Tribunal found that the applicant did indeed cease employment on 4 June 2019 and that this period of unemployment exceeded 90 consecutive days, thereby establishing a ground for cancellation under section 116(1)(b) of the Act. In considering the exercise of discretion, the Tribunal acknowledged that while policy guidelines, such as those in the Department’s Procedures Advice Manual (PAM3), could be a useful starting point, they were not legally binding and could not go beyond the wording of the legislation. Having regard to all the circumstances, including the applicant's submissions and the purpose of her visa, the Tribunal concluded that the reasons for cancelling the visa outweighed the reasons for not cancelling it.

Consequently, the Tribunal affirmed the decision to cancel the first named applicant’s Subclass 457 visa. The Tribunal also reiterated that it had no jurisdiction with respect to the other applicants whose visas were automatically cancelled by operation of law.

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 31 August 2020 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 September 2016, the applicant was granted a Subclass 457 visa to remain valid until 15 September 2020;·The standard business sponsor who nominated the applicant to work as an architectural draftsperson was Skycrest Constructions Pty Ltd (the sponsor);·The sponsor informed the Department that the applicant ceased her employment on 4 June 2019;·A notice of intention to consider cancellation (NOICC) was issued to the applicant on 3 July 2020;·The applicant responded to the NOICC on 8 July 2020; and·On 31 August 2020, the delegate proceeded to cancel the applicant’s visa. The applicant applied to the Tribunal on 3 September 2020 for review of the visa cancellation and with her application submitted a copy of the primary decision record. On 5 January 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 hearing scheduled for 4 February 2021. On 28 January 2021, the applicant wrote to the Tribunal stating that her visa was unfairly cancelled, that her sponsor never gave her written notice of termination of her employment, that her sponsor’s GST registration was cancelled on 1 September 2019 and re-registered on 1 December 2019, that it is difficult to see how her visa could be reinstated as it would have expired on 15 September 2020 in any case, that she has been unemployed for the past 18 months and has spent all her savings, that the airfares for China are currently extremely expensive. Finally, she stated that she just wants to save some money in order to pay for the airfares and go back to China to relaunch her career. With her letter she submitted:·Copies of the applicant’s correspondence with Mr David Hibbins;·Copies of applicant’s superannuation query with ATO from 18 September 2019 and 24 June 2020; ·A copy of the ABN extract for Skycrest Constructions evidencing GST cancellation on 1 September 2019; and ·A copy of the ABN extract for Skycrest Constructions evidencing GST registration on 1 December 2019.

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. Condition 8107(3)(b) requires that if the holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days. In this instance condition 8107 was attached to the applicant’s visa, which was granted on 15 September 2016 and which, but for its cancellation, was valid to 15 September 2020. Based on the evidence before it, including the oral evidence from the applicant, the Tribunal finds that the applicant ceased employment with the sponsoring business on 4 June 2019. The Tribunal further finds that the period during which the visa holder ceased employment exceeded 90 consecutive days. Accordingly, the Tribunal finds that the applicant did not comply with condition 8107(3)(b). 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 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 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 Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala 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 first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa. The Tribunal has no jurisdiction with respect to the other applicants.Antonio DronjicMember

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 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 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 Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala 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 Skycrest Constructions Pty Ltd as an architectural draftsperson on a temporary basis. The applicant was unfortunate to lose her job in June 2019. She decided to remain in Australia and try to find a new employer. She managed to do so and on 18 June 2019, her prospective employer, Earthtrack Solutions Pty Ltd, attempted to nominate her for the position within their business. This application was refused by the Department on 19 July 2019. The applicant never commenced employment at Earthtrack Solutions as she was prevented from doing so by the conditions imposed on her bridging visa.