1508758 (Migration) - [2016] AATA 3221

1508758 (Migration) [2016] AATA 3221 (5 February 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Gaurang Singh
Mrs Chhavi Rani
Miss Raj Nandini Singh
CASE NUMBER:  1508758
DIBP REFERENCE(S):  BCC2014/3024653
MEMBER:Lesley Hunt
DATE:5 February 2016
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 05 February 2016 at 2:12pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 24 June 2015 made by a delegate of the Minister for Immigration 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).
The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant has not complied with condition 8107 on his subclass 457 Temporary Work (Skilled) visa. The condition required that the applicant must work only in the occupation listed in the most recently approved nomination. 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 26 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr K Dudwal, General Managing Director, Spencer College.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
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?
A visa may be cancelled under s.116(1)(b) if the Minister or 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 1508758 (Migration)

Details

AGLC: 1508758 (Migration) [2016] AATA 3221
Case: [2016] AATA 3221
Decision Date: 5 February 2016

CaseChat Overview and Summary

The Tribunal was tasked with reviewing a decision by the Minister to cancel the visa of the applicant, Guarang, under section 116(1)(b) of the Act, which pertains to non-compliance with visa conditions. Specifically, the condition in question was condition 8107, which required the applicant to work only in the occupation listed in the most recently approved nomination for the holder. The Minister's decision to cancel the visa was based on an allegation that the applicant was working as a teacher at Spencer College, rather than solely as a Records Manager as stipulated in the nomination. The Tribunal needed to determine whether the ground for cancellation existed and, if so, whether the visa should be cancelled considering all relevant circumstances.

The Tribunal examined the evidence and submissions from both the applicant and the department. The applicant provided a statutory declaration affirming his employment as a Records Manager and evidence from Spencer College's Academic Manager and CEO supporting this claim. The Tribunal also considered the Minister's evidence, which included an unnamed source alleging the applicant was teaching and statements from Spencer College staff during a site visit. The Tribunal found that the applicant's role as a Records Manager was supported by credible and consistent evidence, including statements from the college's CEO and Academic Manager, as well as the applicant's statutory declaration. The Tribunal was not satisfied that the ground for cancellation existed as the applicant was primarily employed as a Records Manager, despite occasionally performing other duties as per his contract.

The Tribunal concluded that the ground for cancellation under section 116(1)(b) did not exist because the applicant's employment as a Records Manager was substantiated. Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel his Subclass 457 (Temporary Work (Skilled)) visa. The Tribunal emphasized that the applicant's role and qualifications were consistent with the nomination, and his employment at Spencer College did not breach the visa condition. The Tribunal had no jurisdiction over the other applicants mentioned in the case.

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? 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 requires that, if the visa is a subclass 457 (Temporary Work) (Skilled) visa, the holder must work only in the occupation listed in the most recently approved nomination for the holder. Information in the departmental file, and confirmed by the applicant at the hearing, is that the relevant nomination lists the visa holder’s position as Records Manager and that he is employed by the sponsor, Spencer College. The delegate decided to cancel the applicant’s visa because the delegate found that the applicant was working as a teacher at Spencer College Pty Ltd. and not only in the nominated position as required by condition 8107. The departmental decision record indicates that the delegate based this finding after information was received from an unnamed source alleging that the applicant teaches at Spencer College. The delegate refers also to a site visit to Spencer College by departmental officers on 15 December 2014. The delegate states in the decision record that at the site visit a staff member stated that the visa holder was employed as a teacher and the CEO of Spencer College stated that the visa holder’s time is split evenly between being a teacher and a records manager. The department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) of his visa. The letter contained the allegation, identified the visa condition and legislation relevant to the NOICC, and invited the applicant to respond. The applicant responded by way of a statutory declaration dated 2 June 2015. A statutory declaration from Kulwant Singh, the Academic Manager at Spencer College, was also submitted, together with a letter from Gurnam Singh, the CEO of Spencer College, and a brief submission from the applicant’s representative N.K. Sharma of Sharma Lawyers. In his letter Gurnam Singh, CEO, stated that the applicant is employed full-time as a Records Manager and has been since 22 November 2011. He states that there are 386 students enrolled at the college and 16 full-time staff members including Administrative staff, Compliance Manager, Marketing Manager, Student Counsellor and the applicant as Records Manager. He states that: In some emergency situation such as when staff suddenly becomes unavailable, he may do as back up induction/orientation, or do reception duties or undertake any other duty that he is able to undertake. These duties are given by the management as per his signed contract, as per Managing Director’s discretion. Guarang has become a valuable asset to Spencer College, his in-depth knowledge and understanding of our systems is very important to the day to day running of the college. He has relevant tertiary qualification, experience and highly developed verbal communication and writing skills to perform the role. Guarang demonstrates a systematic approach to managing and tracking multiple activities to deadline, a high level of IT competency and the ability to build, negotiate and maintain internal and external networks to achieve successful outcomes.

Decision

Reasons for decision

For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(b) exists. It follows that the power to cancel the applicant’s visa does not arise. DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa. The Tribunal has no jurisdiction with respect to the other applicants.Lesley HuntMember

Ratio Decidendi

Legal Principle Established

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