Hassan (Migration) - [2022] AATA 411

Hassan (Migration) [2022] AATA 411 (16 February 2022)
DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Muhammad Adeel Hassan
Mrs Noureen Zahra
Master Muhammad Shazil Mehdi
Miss Rijja Fatima
CASE NUMBER:  2108983
HOME AFFAIRS REFERENCE(S):          BCC2019/3905526
MEMBER:Kira Raif
DATE:16 February 2022
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 489 - Skilled - Regional (Provisional) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 16 February 2022 at 11:46am
CATCHWORDS
MIGRATION – cancellation – Skilled Regional Sponsored (Provisional) (Class SP) – Subclass 489 Skilled – Regional (Provisional) – incorrect answers with the visa application – employment history – investigation concerning the applicant’s previous employer – bogus employment documents – evidence of company operations – family hardship – cancellation power does not arise – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5, 97 – 105, 107 – 109, 116, 119, 140
Migration Regulations 1994
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Zhao v MIMA [2000] FCA 1235
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 to cancel the first named applicant’s Subclass 489 - Skilled - Regional (Provisional) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The applicants were granted the Skilled Regional (Provisional) visas in March 2019. In May 2021 the applicants were issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view the first named applicant (the applicant) did not comply with ss.101 and 103 of the Act. the applicant provided his response to the NOICC and his visa was cancelled. The applicants seek review of the delegate’s decision.
For the purposes of the Tribunal’s jurisdiction, 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 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicants.
The applicants appeared before the Tribunal on 16 February 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Relevant law
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department…

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 Hassan (Migration)

Details

AGLC: Hassan (Migration) [2022] AATA 411
Case: [2022] AATA 411
Decision Date: 16 February 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a migration matter involving an applicant whose Subclass 489 Skilled - Regional (Provisional) visa was subject to cancellation. The dispute arose from allegations of incorrect answers provided in the visa application, specifically concerning the applicant's employment history and the use of allegedly bogus employment documents. An investigation into the applicant's previous employer raised concerns about the company's operations.

The primary legal issue before the Tribunal was whether the discretionary power to cancel the applicant's visa had arisen. This depended on the Tribunal being satisfied that the applicant had engaged in non-compliance as described in the notice issued under section 107 of the Migration Act 1958 (Cth). The Tribunal was also required to consider the implications of family hardship, although this was not the central legal question for the cancellation power itself.

The Tribunal found that it was not satisfied that the applicant had engaged in the alleged non-compliance. Consequently, the discretionary power to cancel the visa, which is contingent upon such satisfaction, did not arise. The Tribunal reasoned that without a finding of non-compliance as specified in the notice, the basis for cancellation was absent.

The Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel the Subclass 489 visa. The Tribunal noted it had no jurisdiction concerning any other applicants.

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

As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 489 - Skilled - Regional (Provisional) visa. The Tribunal has no jurisdiction with respect to the other applicants.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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