Binti Mustaffa (Migration) - [2021] AATA 5451

Binti Mustaffa (Migration) [2021] AATA 5451 (17 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Norazura Binti Mustaffa
Master Nik Mohamad Daniel Hakim Bin Mohamad Nazri
Miss Putri Alisha Binti Mohamad Nazri
Mr Nik Mohamad Akmal Irfan Binti Mohamad Nazri
Miss Putri Aishah Maisarah Binti Mohamad Nazri
REPRESENTATIVE:  Mr Farnam Razzaghipour (MARN: 9789359)
CASE NUMBER:  2112769
HOME AFFAIRS REFERENCE(S):           BCC2021/721132
MEMBER:Michael Cooke
DATE:17 December 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 other applicants.

Statement made on 17 December 2021 at 12:23pm

CATCHWORDS
MIGRATION – cancellation –Temporary Skill Shortage (Class GK) visa – Subclass 482– applicant ceased employment exceeded 60 consecutive days – applicant breached condition 8607 – applicant took honest and reasonable steps to procure new employment – separation of the family unit – pending Partner visa application – best interests of the applicant’s children – no jurisdiction with respect to the other applicants – decision under review set aside
LEGISLATION
Migration Act 1958, ss 116,140, 348
Migration Regulations 1994, Schedule 2, cl 482.212
CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 20 September 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 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(b) on the basis that the applicant has not complied with subclause (5) of condition 8607 attached to her visa. The basis for the cancellation of the other applicants’ visas was consequential cancellations under s.140. 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 primary applicant (the applicant) has tendered a comprehensive submission to the Tribunal addressing her visa situation and seeking to set aside the cancellation.
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 Binti Mustaffa (Migration)

Details

AGLC: Binti Mustaffa (Migration) [2021] AATA 5451
Case: [2021] AATA 5451
Decision Date: 17 December 2021

CaseChat Overview and Summary

The matter before the Federal Circuit and Family Court of Australia concerned an appeal by Binti Mustaffa against a decision to cancel her Temporary Skill Shortage (Class GK) visa (Subclass 482). The applicant had ceased employment with her sponsoring employer, thereby breaching visa condition 8607 by exceeding 60 consecutive days without an approved nomination. The Department had cancelled her visa, and the applicant sought review of this decision.

The primary legal issue before the court was whether the Tribunal had erred in its consideration of the relevant factors when exercising its discretion to cancel the applicant's visa. Specifically, the court needed to determine if the Tribunal had adequately considered the applicant's efforts to secure new employment, the potential hardship to her and her children, and the purpose of her stay in Australia, in light of her changed family circumstances and pending Partner visa application.

The court reasoned that while the applicant's non-compliance with condition 8607 was significant, the Tribunal had failed to give sufficient weight to other crucial factors. These included the applicant's honest and reasonable steps to procure new employment, the substantial financial, psychological, and emotional hardship that cancellation would cause her, and the fact that she was a highly skilled professional in a field experiencing a shortage. The court also noted the applicant's pending Partner visa application and the best interests of her children, which were relevant considerations in the exercise of discretion.

The court found that the Tribunal had not adequately balanced all the relevant factors, particularly the hardship to the applicant and her children, and her efforts to regularise her immigration status. Consequently, the decision under review was 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 applicant’s travel and stay in Australia, whether the applicant has a compelling need to travel to or remain in Australia The applicant was granted a Temporary Skill Shortage (Subclass 482) visa on 15 October 2018 for the purpose of employment with an approved sponsor in a skilled occupation in Sydney which could not be filled from within the Australian workforce. The sponsor nominated her to work in the position of Chef (ANSZCO 351311). The sponsor advised the Department that the applicant ceased employment with them effective 05 March 2021. According to Departmental records, the applicant does not have any other pending nominations with another sponsor after the most recent nomination for the visa was approved with the sponsor MRVL Investments Pty Ltd. The applicant in her submission and additional information has indicated that for family education reasons she had to relocate to Canberra. She has been able to secure the promise of a further sponsorship nomination from her new employer. Furthermore, Departmental records indicate that on 20 August 2021 the applicant lodged a Partner visa based on her relationship with another person. Based on the information before it the Tribunal is satisfied that the applicant’s purpose in Australia remains unchanged in a professional sense. She now has remarried, so her family status has changed dramatically. The Tribunal gives this consideration minimal weight in favour of cancelling the visa.·the extent of compliance with visa conditions The applicant’s visa was granted subject to condition 8607. She has not had an approved nomination since her employment ceased with the sponsor on 05 March 2021. The Tribunal, overall, does consider the extent of her non-compliance with condition 8607 to be significant. However, there is no information to indicate that she has been non-compliant with any other visa conditions to which her visa was subject. The Tribunal gives this consideration minimal weight in favour of cancellation.·degree of hardship that may be caused (financial, psychological, emotional or other hardship) The applicant did not provide any specific information in relation to this consideration to the delegate. However, she has provided a comprehensive response to the Tribunal concerning her situation. The cancellation of her Temporary Skill Shortage visa would result in the applicant experiencing significant hardship (financial, psychological and emotional). Furthermore, she is a highly skilled Chef, and people in her profession are, apparently, in short supply coming out of the COVID 19 pandemic. Her present employer speaks highly of her skills and work ethic.