Aryal Bhatta (Migration) - [2023] AATA 3476

Aryal Bhatta (Migration) [2023] AATA 3476 (29 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Srijana Aryal Bhatta
Mr Subash Bhatta
Master Arij Bhatta
REPRESENTATIVE:  Mr Sanjeev Prasad Pandey (MARN: 1172267)
CASE NUMBER:  2300831
HOME AFFAIRS REFERENCE(S):          BCC2022/259856
MEMBER:SM Michael Cooke
DATE:29 August 2023
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 187 - Regional Sponsored Migration Scheme visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 29 August 2023 at 1:37pm
CATCHWORDS
MIGRATION – cancellation – Regional Sponsored Migration Scheme visa– Subclass 187 – applicant did not commence the employment in the position of Retail Buyer – ground for cancellation in s 137Q exists – one of the children is an Australian citizen – significant professional and social ties to the Australian community – best interests of the applicant’s children – decision under review set aside
LEGISLATION
Migration Act 1958, ss 137, 348, 359
Migration Regulations 1994, Schedule 2
CASES
Wan v MIMA (2001) 107 FCR 133
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 January 2023 to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s 137Q of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that while the first named applicant (the applicant) did work in the factory at Burchgrove Group Pty Ltd, she did not undertake work in the nominated occupation of Retail Buyer as indicated in the nomination application TRN EGOEZ1PIIL. Thus, she had not commenced the employment referred to in the relevant employer nomination within the period prescribed by the regulations.
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 that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 137T(1) of the Act. As no decision was involved in the visa cancellation under s 137T(1), the Tribunal has no jurisdiction with respect to the other applicants.
The applicant was sent an Invitation pursuant to s.359A as follows:
INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – MRS SRIJANA ARYAL BHATTA, MR SUBASH BHATTA AND MASTER ARIJ BHATTA
I am writing on instruction from the Member conducting your review, in relation to the applications for review made by you in respect of decisions to cancel Subclass 187 -Regional Sponsored Migration Scheme visas.
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or…

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 Aryal Bhatta (Migration)

Details

AGLC: Aryal Bhatta (Migration) [2023] AATA 3476
Case: [2023] AATA 3476
Decision Date: 29 August 2023

CaseChat Overview and Summary

This matter concerned an application by Aryal Bhatta for review of a decision to cancel her Regional Sponsored Migration Scheme (RSMS) visa (Subclass 187). The dispute arose because Ms. Bhatta did not commence employment in the nominated position of Retail Buyer within the required timeframe after her visa was granted. The decision to cancel her visa was made by the delegate, and this decision was subsequently reviewed by the Tribunal.

The primary legal issue before the Tribunal was whether the cancellation of Ms. Bhatta's visa was justified, particularly in light of her circumstances and the best interests of her children. Specifically, the Tribunal had to consider whether the ground for cancellation under s 137Q of the *Migration Act 1958* (Cth) was enlivened, and if so, whether there were any overriding considerations, such as the best interests of her children, that warranted setting aside the cancellation decision. The Tribunal also considered the applicant's explanation for not commencing the nominated employment and her understanding of the visa conditions.

The Tribunal reasoned that while the ground for cancellation was enlivened because Ms. Bhatta did not commence the nominated employment, it was crucial to consider the best interests of her children. The applicant had two young sons residing in Australia, one of whom was an Australian citizen and the other had lived in Australia his entire life. The Tribunal gave significant weight to the fact that one child was an Australian citizen and that both children had strong ties to the Australian community, including their education. The Tribunal found that the continuous presence of their parents in Australia was crucial for their well-being and that preventing the parents from living in Australia would have detrimental effects on the children.

Consequently, the Tribunal determined that the best interests of the applicant's children were a primary consideration and weighed heavily against the cancellation of the visa. The Tribunal set aside the delegate's decision to cancel Ms. Bhatta's visa.

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

The applicant in her response to the Tribunal Invitation pursuant to s.359A has claimed their understanding was that as long as they worked for the employer, they ‘would not be breaching any conditions’. This was because the visa grant letter did not have any condition which required them to work in the nominated occupation. They stated they ‘genuinely believed’ that they ‘could work in any occupation as long as it was with the same employer’. In addition, their employment contract stated that the employer ‘may from time to time’ require them to perform other duties, functions and responsibilities within their capabilities. Further, they claimed they were unaware of what documents were submitted to the Department with the nomination application as the paperwork related to the nomination application was organized by the agent and the employer.Consideration of any relevant factors, including the departmental guidelines, and matters raised by the applicant. Departmental guidelines cover such matters as:·if there are children whose interests would be affected by cancellation, or consequential cancellation under s 137T, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].) The Tribunal notes from the decision record of the delegate (tendered by the applicant) that the applicants have two young children in Australia. The family is made up of a 9 year old son (who was born and has spent his entire life in Australia) as well a baby son who is an Australian citizen. The applicant has claimed it is in the best interests of the children that they can continue to live with their parents and get ‘world class education’ in Australia. They maintain that their parents’ continuous presence is very crucial for their children’s well-being. Therefore, they claim that ‘not allowing the parents to live in Australia will have detrimental effects in the children’s well-being and it will not be in their best interests’. The Tribunal notes that one of the children is an Australian citizen and gives this consideration heavy weight. His brother is totally Australian raised. This is due to the longevity of his stay in Australia and subsequent education here. He was a year off securing citizenship as a result of this fact until the visa cancellation. The Tribunal gives this primary consideration maximum weight against cancellation.·the circumstances leading to the grounds for cancellation The grounds for cancellation arose when the applicant did not commence the specific employment referred to in the relevant employer nomination (‘Retail Buyer’), nor make a genuine effort to commence that specific employment, within the prescribed period after the grant of their RSMS visa, thus enlivening the ground for cancellation.