2205267 (Migration) - [2022] AATA 4898

2205267 (Migration) [2022] AATA 4898 (24 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Harpal Bajwa (MARN: 0955800)
CASE NUMBER:  2205267
MEMBER:Noelle Hossen
DATE:24 November 2022
PLACE OF DECISION:  Perth
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.

Statement made on 24 November 2022 at 2:55pm
CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – engaged in work other than nominated occupation – discretion to cancel visa – COVID-related paid leave – working to meet extra living expenses after wife ceasing work and birth of baby – long residence, intention to continue working in nominated occupation and application for permanent visa in progress – restricted work hours since visa cancelled – members of family unit – automatic cancellation of secondary applicants’ visas with no jurisdiction to review – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140(1), 347
Migration Regulation 1994 (Cth), Schedule 8, condition 8107(1)(b)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
application for review

This is an application for review of a decision dated 5 April 2022 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 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(b) on the basis that the applicant was engaged in employment as [an Occupation 1] which was work that was not his nominated occupation according to the conditions of his visa grant. As such he may have breached subclause (1) (b) of condition 8107. 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 12 October 2022 to give evidence and present arguments.
The applicants were represented in relation to…

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 2205267 (Migration)

Details

AGLC: 2205267 (Migration) [2022] AATA 4898
Case: [2022] AATA 4898
Decision Date: 24 November 2022

CaseChat Overview and Summary

This matter concerned an application for review of a decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant, who had been in Australia since October 2018, was employed by [Company name] as an [Occupation 2]. The dispute arose when, from January 2021, the applicant undertook work in a different occupation, [Occupation 1], to meet increased living expenses following his wife ceasing work due to the birth of their child and the impact of COVID-19 restrictions on his employer. The review was heard by a Tribunal constituted by Noelle Hossen.

The primary legal issue before the Tribunal was whether, having found that the ground for cancellation under section 116(1)(b) of the *Migration Act 1958* (Cth) existed, the Tribunal should exercise its discretion not to cancel the applicant's visa. This involved considering the applicant's circumstances, including his purpose for travel, compliance with visa conditions, and the hardship that cancellation might cause, as well as relevant guidance from the Department's Procedures Advice Manual.

The Tribunal reasoned that while the applicant had breached his visa conditions by working in an occupation other than his nominated one, this ground did not mandate cancellation. The Tribunal gave weight to the applicant's intention to continue working in his nominated occupation, evidenced by a pending application for a Subclass 186 visa. It also noted the applicant's otherwise compliant history and the significant hardship that cancellation would impose, including the emotional distress experienced by the family, leading to their child being sent to India. The Tribunal acknowledged the applicant's long residence in Australia and established community ties.

The Tribunal set aside the decision under review and determined that the visa should not be cancelled.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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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 visa should be cancelled.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 purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia: The applicant travelled to Australia to work as [an Occupation 2] for [Company name] from 17 October 2018. He said in his evidence that he had complied with the conditions of his visa until January 2021. He was asked by his employer to take paid leave as the business was doing badly because of the Covid restrictions and lockdowns. At the same time in January 2021 his wife gave birth to their daughter who was born on [Date]. His wife had been working and due to the impending birth of the child she was no longer able to help with the family’s financial position. He provided the Tribunal with information regarding the extra costs associated with the birth of the child. They were finding it difficult to meet their living expenses. He [did Occupation 1] as that was the only way that he could sustain his family financially. The applicant has a pending application for Employer Nomination Scheme (subclass 186) which was lodged on the 11 December 2021, relating to a nomination by [Company name] in the occupation of [Occupation 2]. Although the applicant has engaged in an occupation that was not his nominated occupation the applicant is planning to work on a full-time basis for [Company name] and continue with his intended purpose of his travel and stay in Australia. The Tribunal places some weight in favour of not cancelling the visa in respect of this consideration.the extent of compliance with visa conditions: Save and except for the for the period from January to April 2021 the applicant has complied with the conditions of the Visa. The Tribunal places some weight on those facts in favour of the applicant’s case and not to cancel the Visa.degree of hardship that may be caused (financial, psychological, emotional or other hardship): The applicant and his wife have remained to live in Australia. His wife has applied for a student visa. The applicant and his wife were having a difficult time, and at the hearing indicated that the child had been sent to India as they were not coping emotionally because of the uncertainty of their position. The applicant has spent a long time in Australia previously as he first arrived in 2009 on a student visa. The applicant provided the Tribunal with an extensive list of statutory declarations from friends and community members that they have formed attachments to and socialised with in Australia.