Chen (Migration) - [2023] AATA 1463

Chen (Migration) [2023] AATA 1463 (10 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Hong Chen
Ms Lulu ZHANG
Master Shi Huang CHEN
REPRESENTATIVE:  Mr STANLEY CHAN (MARN: 0430097)
CASE NUMBER:  2210571
HOME AFFAIRS REFERENCE(S):          BCC2021/1308150
MEMBER:Noelle Hossen
DATE:10 January 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision 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 10 January 2023 at 1:40pm
CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – ground for cancellation – ceased employment with sponsor – consideration of discretion – work-related injury – purpose of travel and stay – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 8, Condition 8607
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 July 2022 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 did not comply with condition 8607 because the period that the applicant had ceased employment has exceeded 60 consecutive days. 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 were represented in relation to the review.
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
Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(b) If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether…

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 Chen (Migration)

Details

AGLC: Chen (Migration) [2023] AATA 1463
Case: [2023] AATA 1463
Decision Date: 10 January 2023

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Chen against the cancellation of his Temporary Skill Shortage (Class GK) visa, Subclass 482. The primary ground for cancellation was that Mr. Chen had ceased employment with his approved sponsor, ASHTON Pty Ltd, and subsequently with his new sponsor, TEYS SOUTHERN AUSTRALIA Pty Ltd, without a new nomination being approved. The Administrative Appeals Tribunal was required to determine whether the cancellation was justified and whether discretion should be exercised in favour of the applicant.

The Tribunal considered whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was established, which it found to be the case as Mr. Chen had ceased employment with his sponsors. The Tribunal then had to decide whether to exercise its discretion to cancel the visa. In doing so, it had regard to the applicant's circumstances, including a reported work-related injury, and the Department's Procedures Advice Manual. The Tribunal noted that the applicant had provided limited evidence regarding his injury and had declined an invitation to attend a hearing.

The Tribunal found that Mr. Chen had arrived in Australia in December 2018 and had remained in Australia since then. His visa was granted on the condition that he work for ASHTON Pty Ltd, but he ceased employment with them in August 2019. He later obtained a new nomination to work for TEYS SOUTHERN AUSTRALIA Pty Ltd, but ceased employment with them in June 2021. There was no evidence of a further approved nomination. The Tribunal also noted that Mr. Chen's wife had lodged a visa application where he was listed as a dependent, suggesting his purpose for remaining in Australia may have shifted to accompanying his wife. While the applicant had complied with visa condition 8501 regarding health insurance, the Tribunal placed weight on the cessation of employment and the apparent change in his purpose for remaining in Australia in favour of cancelling the visa.

The Tribunal affirmed the decision to cancel Mr. Chen'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

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 only evidence available is the evidence as contained in the delegate’s decision as other than the email from the applicant’s representative, stating that he suffered a work-related injury the applicant did not provide any further evidence including submissions or paperwork. The applicant declined an invitation to attend a hearing. The delegate stated in his Decision that the applicant arrived in Australia on 4 December 2018 as the holder of a Temporary Skill Shortage (labour agreement) Visa and has remained on shore since that date. The applicant’s Visa was granted on the basis that he was to work for his approved employer ASHTON Pty Ltd. On 21 August 2019 ASHTON Pty Ltd notified the Department that the Visa holder had ceased employment with them on 16 August 2019. On 27 November 2019 the applicant had a new nomination approved, for him to work for a new approved employer TEYS SOUTHERN AUSTRALIA Pty Ltd (the sponsor). On 23 June 2021 the sponsor advised the Department that the applicant had ceased employment with them effective on 15 June 2021. There is no information on departmental systems that indicates that the applicant has a new nomination approved for him to work for any other employer On 18 August 2021 the applicant’s wife Lulu Zhang (date of birth 15 February 1991) lodged a valid application for a Temporary Activity Australian Government Endorsed event(Subclass 408) Visa listing the Visa holder as a dependent. That application was under assessment at the time of the Delegate’s Decision. The Department concluded that the information indicated that the applicant’s purpose for remaining in Australia had changed and that his purpose for remaining in Australia is to accompany his wife as a secondary Visa holder should his wife’s application be granted. The Tribunal places some weight on those facts in favour of cancelling the Visa.The extent of compliance with visa conditions the applicant’s temporary skill shortage Visa was granted with Visa conditions 8501 and 8607 imposed. Visa condition 8501 requires the applicant to maintain appropriate health insurance wine Australia and there is no information before the Department or the tribunal that indicates that he has not complied with this condition.