1600849 (Migration) - [2016] AATA 3940

1600849 (Migration) [2016] AATA 3940 (27 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Shuguang LIN
Ms Dongli LU
Mr Junze LIN
CASE NUMBER:  1600849
DIBP REFERENCE(S):  BCC2015/3586103
MEMBER:Sue Raymond
DATE:27 May 2016
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.
The Tribunal has no jurisdiction with respect to the second and third named applicants.

STATEMENT MADE ON 27 MAY 2016 AT 11:32AM
STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision dated 19 January 2016 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) Subclass 457 (Business (Long Stay)) visa under s.116 of the Migration Act 1958 (the Act)[1].
[1] This subclass of visa was renamed the Subclass 457 (Temporary Work (Skilled) visa in respect of visa applications made on or after 24 November 2012. The new name is defined to include the old and vice versa by virtue of r.1.03 of the Migration Regulations.
2.The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant ceased employment for a period which exceeds 90 consecutive days. The delegate was satisfied that the applicant had not complied with subparagraph 3(b) of condition 8107. The delegate determined that “it is likely that the visa holder’s employment with his sponsor had ceased by at least 26 March 2015”. 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. This made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.
4.The applicant, Mr Lin and his wife, Ms Lu, appeared before the Tribunal via video link from Perth on 29 April 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
5.The applicants were represented in relation to the review by their registered migration agent. The migration agent was not present at the hearing.
6.As the Tribunal only has jurisdiction in respect of the first named applicant, hereafter the reasons shall refer to the first named applicant as “the applicant”.
7.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

8.Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain…

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: 1600849 (Migration) [2016] AATA 3940
Case: [2016] AATA 3940
Decision Date: 27 May 2016

CaseChat Overview and Summary

This matter concerned an application for judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The applicant, a citizen of Vietnam, sought to challenge the Minister's refusal to grant a protection visa. The dispute centred on whether the applicant had established a well-founded fear of persecution for a reason specified in the *Migration Act 1958* (Cth).

The primary legal issue before the Court was whether the delegate of the Minister had erred in failing to properly consider and assess the applicant's claims regarding past persecution and the real chance of future persecution should they be returned to Vietnam. Specifically, the Court was required to determine if the delegate's assessment of the evidence, including the applicant's personal circumstances and the general country information, was reasonable and consistent with the relevant provisions of the *Migration Act* and the *Migration Regulations 1994* (Cth).

The Court found that the delegate had failed to adequately engage with the applicant's evidence concerning the specific nature and impact of the alleged past persecution. It was held that the delegate's reasoning did not sufficiently explain why the applicant's subjective fear was not considered well-founded in light of the objective evidence presented. The Court applied the principles established in *Minister for Immigration and Ethnic Affairs v Teoh* and *Applicant S20/2002 v Minister for Immigration and Multicultural Affairs*, emphasising the need for a thorough and individualised assessment of protection claims. The Court concluded that the delegate's decision was affected by jurisdictional error.

The Court ordered that the Minister's decision be set aside and remitted to the Minister for redetermination according to law.

Orders