Ahmed (Migration) - [2021] AATA 4065

Ahmed (Migration) [2021] AATA 4065 (12 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Faisal Ahmed
Ms Jabeen Rafiq
CASE NUMBER:  2101283
HOME AFFAIRS REFERENCE(S):          BCC2020/2626110
MEMBER:Michael Cooke
DATE:12 October 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 482 - Temporary Skill Shortage visa.
The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 12 October 2021 at 1:31pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482– applicant breached condition 8507 – applicant ceased employment for a period exceeding 60 consecutive days – factors beyond his control – impact of the pandemic on businesses – genuineness in trying to secure a new sponsor –– decision under review set aside
LEGISLATION
Migration Act 1958, ss 116,140

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80
Wan v MIMA (2001) 107 FCR 133
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 29 January 2021 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 482 - Temporary Skill Shortage 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 breached condition 8507(5) attached to his visa. The other applicant’s visa was cancelled pursuant to s.140 of the Regulation consequentially. 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 second named applicant’s visa was 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 the second named applicant’s visa 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 the second named applicant.
The applicants appeared before the Tribunal on 12 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the secondary applicant Ms Rafiq.
The applicants were represented in relation to the review by their registered migration agent.
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…

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 Ahmed (Migration)

Details

AGLC: Ahmed (Migration) [2021] AATA 4065
Case: [2021] AATA 4065
Decision Date: 12 October 2021

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Mr Ahmed, against the cancellation of his Temporary Skill Shortage (Class GK) visa, subclass 482. The applicant had breached a condition of his visa by ceasing employment for a period exceeding 60 consecutive days. The dispute before the Administrative Appeals Tribunal was whether the cancellation decision should be set aside.

The primary legal issue before the Tribunal was whether to exercise its discretion to set aside the cancellation of the applicant's visa, considering the circumstances that led to the breach. This involved assessing factors beyond the applicant's control, the impact of the COVID-19 pandemic on businesses and employment, and the applicant's genuine efforts to secure new sponsorship and employment in Australia. The Tribunal was required to weigh these factors against the fact that the applicant was no longer working in his nominated occupation for an approved sponsor.

The Tribunal reasoned that while the applicant had breached a visa condition, the circumstances surrounding this breach were largely beyond his control, exacerbated by the pandemic. The applicant had provided substantial evidence of his attempts to find new employment and sponsorship, and he expressed a strong desire to remain in Australia, where he had lived for 11 years. His wife held a critical role in the NSW Health Department and had a potential visa sponsorship opportunity. The Tribunal also noted the significant psychological and financial hardship the applicant and his family were experiencing due to the pandemic and the visa situation. Applying departmental guidelines, which suggest that visas should generally not be cancelled when the ground for cancellation arises from circumstances beyond the visa holder's control, the Tribunal gave considerable weight to these mitigating factors.

The Tribunal concluded that the weight of the circumstances favoured the applicant and ordered that the decision to cancel the applicant's visa be set aside.

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

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’.Consideration of any relevant factors, including matters raised by the applicant and the departmental guidelines which cover matters such as:·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 was granted a Temporary Skill Shortage visa on 12 February 2020 to work in a nominated occupation for an approved sponsor. The Department received notification from the sponsor, NTT AUSTRALIA DIGITAL PTY LTD, that he ceased employment with them effective 14 August 2020. As he is no longer working in a nominated occupation for an approved sponsor and has failed to secure a new nomination, he is no longer in Australia in accordance with the original purpose of his visa. The applicant submits that his intention is to continue working in accordance with his current visa. He has provided the Tribunal with copious evidence of his attempts to secure employment with a new employer. He further states that he intends to apply for an alternative visa in order to continue working in Australia. The Tribunal notes, however, that Department records indicate no new applications for alternative visas have been lodged. The applicant explained (in oral evidence) that his Bridging E visa status was a barrier to securing a new sponsor/nominator. The Tribunal is aware that at time of decision he has a compelling reason to remain in Australia as it his wish to make it his home. He has spent 11 years in Australia and has been thwarted by failures of potential sponsors to continue with their sponsorships after agreeing to do so. His wife has an important job in the NSW Health Department assisting with the pandemic response and a potential visa sponsorship from them (she informs) later in the year. The Tribunal gives this consideration some weight against cancellation.·the extent of compliance with visa conditions The Tribunal has no information to suggest the applicant has been non-compliant with any other condition than the one the visa was subject to. This non-compliance was due to factors beyond his control. Consequently, the Tribunal gives this consideration some weight against cancellation.·degree of hardship that may be caused (financial, psychological, emotional or other hardship) The Tribunal is aware that the parties are undergoing significant psychological and financial hardship from the confluence of the pandemic, its effects on national employment and its impact on the parties’ personal ability to secure a new sponsor and have peace of mind as they wish to remain in Australia despite living all over the world. The Tribunal gives this consideration heavy weight against cancellation.·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control