Huang (Migration) - [2021] AATA 4998

Huang (Migration) [2021] AATA 4998 (8 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Bo Huang
Ms Li Chen
Mr Zile Huang
CASE NUMBER:  2108508
HOME AFFAIRS REFERENCE(S):          BCC2021/1157490
MEMBER:Vanessa Plain
DATE:8 December 2021
PLACE OF DECISION:  Melbourne
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 08 December 2021 at 12:33pm
CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – occupation of Supply and Distribution Manager – working only in the nominated occupation – site visit to the premises – applicant working in another section part-time – assistance visit to a client – decision under review set aside
LEGISLATION
Migration Act 1958, ss 116, 140, 348
Migration Regulations 1994, Schedule 8, Condition 8607; r 2.89
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 30 June 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 has not complied with condition 8607 imposed upon his visa. The dependant applicants’ visas were cancelled as a consequence of the cancellation of the primary visa holder. 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 invited to appear before the Tribunal on 3 November 2021 to give evidence and present arguments. The applicants submitted a number of documents to the Tribunal in advance of the hearing and on the basis of the evidence submitted, the Tribunal informed the applicants that it would deliver a decision “on the papers.”
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS…

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 Huang (Migration)

Details

AGLC: Huang (Migration) [2021] AATA 4998
Case: [2021] AATA 4998
Decision Date: 8 December 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the Temporary Skill Shortage (Class GK) visa, subclass 482, held by Mr. Huang. The cancellation was based on allegations that Mr. Huang had not complied with condition 8607(1) of his visa, which required him to work only in the nominated occupation of Supply and Distribution Manager. The employer, SUCCESS LOGISTICS AUSTRALIA PTY LTD, had nominated Mr. Huang for this occupation.

The Tribunal was required to determine whether the ground for cancellation under s.116(1)(b) of the Migration Act 1958 (Cth) was made out. Specifically, the Tribunal had to assess whether Mr. Huang had indeed worked only in his nominated occupation, as stipulated by visa condition 8607(1) and the employer's sponsorship obligations under regulation 2.89 of the Migration Regulations 1994. The Australian Border Force's investigation, which led to the cancellation decision, raised concerns including Mr. Huang not appearing on employer staff lists, lacking access to a critical area of the depot, and admitting to working part-time in a warehouse role for a different company, AGL LOGISTICS PTY LTD, on multiple occasions.

The Tribunal found that the evidence did not satisfy it that the ground for cancellation existed. While the investigation noted Mr. Huang's presence at AGL LOGISTICS PTY LTD and his statement about working there, it did not establish that this work was in contravention of his visa condition. The Tribunal was not satisfied that Mr. Huang had failed to work solely in his nominated occupation. Consequently, the power to cancel his visa did not arise.

The Tribunal set aside the decision to cancel Mr. Huang's visa and substituted a decision not to cancel it. 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

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 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 the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.Does the ground for cancellation exist? The Delegate’s decision record contends that the applicant has not complied with subclause (1) of condition 8607 attached to their subclass 482 (Temporary Skill Shortage) visa, which states:“8607(1) The holder must work only in the occupation (the nominated occupation) nominated by the nomination identified in the application for the most recent Subclass 482 (Temporary Skill Shortage) visa granted to the holder. The Delegate’s decision record of 30 June 2021 provides as follows:“On 27 June 2019, SUCCESS LOGISTICS AUSTRALIA PTY LTD, received approval to nominate the visa holder to work in the occupation of Supply and Distribution Manager (Australia and New Zealand Standard Classification of Occupations (ANZSCO) code 133611). Following the approval given to SUCCESS LOGISTICS AUSTRALIA PTY LTD, and having met the relevant criteria, the visa holder was granted a Temporary Skill Shortage visa on 03 July 2019.On 16 October 2019, the Australian Border Force (ABF) commenced a monitoring audit of the visa holder’s employer, SUCCESS LOGISTICS AUSTRALIA PTY LTD, in respect of their sponsorship obligations. Among the sponsorship obligations is the requirement to ensure that the visa holder, as the primary sponsored person, works only in the nominated occupation as per regulation 2.89 of the Migration Regulations 1994.On 18 February 2020, ABF officers conducted a site visit to the premises of SUCCESS LOGISTICS AUSTRALIA PTY LTD. After their investigations, the ABF issued a Notice of intention to Take Action to SUCCESS LOGISTICS AUSTRALIA PTY LTD on 14 May 2021 regarding its obligations as a standard business sponsor. The ABF identified the following concerns: The visa holder was not identified on any staff lists pertaining to the employees ofSUCCESS LOGISTICS AUSTRALIA PTY LTD; The visa holder did not have access to the licenced area of the depot, which is critical to the role of a Supply and Distribution Manager; On a subsequent site visit to company AGL LOGISTICS PTY LTD on 08 May 2020, the visa holder was onsite and stated to ABF officers that he was working for this company in the warehouse one to two days a week. It was noted that on 11 February 2020 during a site visit to a separate company, ADSM PTY LTD, the visa holder signed the visitor log as a representative of AGL; and The emails that the visa holder appears to have sent, as evidence of working in hisnominated occupation, did not satisfy the ABF that the visa holder was working forSUCCESS LOGISTICS AUSTRALIA PTY LTD. The visa holder was not identified on any staff lists pertaining to the employees ofSUCCESS LOGISTICS AUSTRALIA PTY LTD; The visa holder did not have access to the licenced area of the depot, which is critical to the role of a Supply and Distribution Manager; On a subsequent site visit to company AGL LOGISTICS PTY LTD on 08 May 2020, the visa holder was onsite and stated to ABF officers that he was working for this company in the warehouse one to two days a week. It was noted that on 11 February 2020 during a site visit to a separate company, ADSM PTY LTD, the visa holder signed the visitor log as a representative of AGL; and The emails that the visa holder appears to have sent, as evidence of working in hisnominated occupation, did not satisfy the ABF that the visa holder was working forSUCCESS LOGISTICS AUSTRALIA PTY LTD.”

Decision

Reasons for decision

For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(b) exists. It follows that the 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 482 - Temporary Skill Shortage visa. The Tribunal has no jurisdiction with respect to the other applicants.Vanessa PlainMember

Ratio Decidendi

Legal Principle Established

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