Kattell (Migration) - [2023] AATA 3014

Kattell (Migration) [2023] AATA 3014 (12 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Aakash Kattell
Ms Manaandiny Roka
REPRESENTATIVE:  Mr Ajay Sharma
CASE NUMBER:  2306408
HOME AFFAIRS REFERENCE(S):          BCC2023/156929
MEMBER:Kira Raif
DATE:12 September 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 485 (Temporary Graduate) visa.
The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 12 September 2023 at 3:30pm
CATCHWORDS
MIGRATION – cancellation – Skilled Regional Sponsored (Provisional) visa – Subclass 485 (Temporary Graduate) – applicant convicted of an offense – family and financial hardship – assessed low risk of reoffending – family responsibilities in Nepal – recent contribution to the community – disruption to wife’s studies – decision under review set aside
LEGISLATION
Migration Act 1958, ss 48, 116, 140, 348
Migration Regulations 1994, r 2.43
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 4 May 2023 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 485 (Temporary Graduate) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The first named applicant (the applicant) is a national of Nepal, born in April 1996. He was granted the Temporary Graduate Visa in November 2022. In April 2023 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that there may be a ground for cancelling his visa under s. 116(1)(g) of the Act. The applicant provided his response to the NOICC and his visa was cancelled in May 2023. The applicant seeks review of the delegate’s decision.
The issue in the present case is whether the 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 second named applicant’s visa was 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 the second named applicant’s visa 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 the second named applicant.
The applicants appeared before the Tribunal on 12 September 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in…

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 Kattell (Migration)

Details

AGLC: Kattell (Migration) [2023] AATA 3014
Case: [2023] AATA 3014
Decision Date: 12 September 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a migration matter involving an applicant whose Skilled Regional Sponsored (Provisional) visa (Subclass 485) was subject to cancellation. The applicant had been convicted of an offense, leading to the potential cancellation of his visa under section 116(1)(g) of the Migration Act 1958 (Cth). The applicant sought to have the cancellation decision set aside, raising issues of family and financial hardship, his low risk of reoffending, and his responsibilities in Nepal.

The primary legal issue before the Tribunal was whether, having found that a ground for cancellation existed, it should exercise its discretion not to cancel the applicant's visa. This required the Tribunal to consider various factors, including the purpose of the visa holder's stay, their compliance with visa conditions, and the degree of hardship that cancellation might cause. The Tribunal also had regard to the Department's Procedures Advice Manual concerning general visa cancellation powers.

In its reasoning, the Tribunal acknowledged that the ground for cancellation was established but noted that it did not mandate cancellation. The Tribunal considered the applicant's stated purpose for coming to Australia, which was to study, and his subsequent completion of IT qualifications. While the applicant had not worked in his field of IT, he had completed cookery qualifications and was working in the hospitality sector, intending to seek further visa sponsorship on that basis. Crucially, there was no evidence of non-compliance with visa conditions. The Tribunal also weighed the significant family and financial hardship that cancellation would cause, including the applicant and his wife being primary carers for their parents, one of whom had recently undergone surgery.

Ultimately, the Tribunal determined that the factors weighing against cancellation, particularly the hardship and the applicant's efforts to establish himself in a new field, were of greater significance. Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning a second applicant.

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

In the circumstances of this case, the Tribunal has decided to give greater weight to the factors that weigh against the cancellation, set out above. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelledDECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 485 (Temporary Graduate) visa. The Tribunal has no jurisdiction with respect to the second named applicant.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

The Tribunal is satisfied that the ground for cancellation in s.116(1)(g) 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 applicant states in his response to the NOICC and in his evidence to the Tribunal that he arrived in Australia holding a Student visa and had completed his studies in IT before being granted the subclass 485 visa. He provided to the Tribunal evidence of study completion, as well as evidence relating to his partner, including evidence of her employment, skills and English assessments. In his written statement to the Tribunal the applicant also stated that he travelled to Australia to study and after he married his wife in Nepal, he sponsored her for a visa, but the process was delayed due to Covid. The applicant explained to the Tribunal that after completing the Bachelor of IT, he had not worked in that field. He said he was interested in cooking and had been working in hospitality when he came to Australia. He subsequently completed some cookery qualifications. The applicant told the Tribunal that he made the application for the Skilled visa on the basis of his IT qualification and only did the cookery course after he made the application. The representative submits that there was no requirement for the applicant to work in a particular occupation after being granted the Skilled visa and he would be allowed to seek a two year extension on his visa because he had completed the Bachelor IT, even if he had not worked in that field. The Tribunal finds that the Skilled visa was granted on the basis of the applicant’s IT qualification and the applicant is not engaged in employment in that field. However, the Tribunal also acknowledges the applicant’s evidence that he does not need to work in the field, that he has completed formal study in hospitality and is working in that field and that he intends to apply for another visa on that basis or obtain visa sponsorship based on his employment in hospitality. It appears that the applicant is fulfilling the purpose of his visa. The extent of compliance with visa conditions There is no evidence of non-compliance with visa conditions. Degree of hardship that may be caused (financial, psychological, emotional or other hardship) The applicant states that if his visa is cancelled, there would be financial hardship as he and his wife are primary carers for their parents. He states that his wife’s parents had recently undergone surgery and some medical records have been presented.