Kaur (Migration) - [2021] AATA 2157

Kaur (Migration) [2021] AATA 2157 (21 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Ranjit Kaur
Mr Sukhdeep Singh Sidhu
Master Gurnoor Singh Sidhu
CASE NUMBER:  2018058
HOME AFFAIRS REFERENCE(S):          BCC2018/4220893
MEMBER:Jason Pennell
DATE:21 May 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 457 (Temporary Work (Skilled)) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 21 May 2021 at 11.34am

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – incorrect answers in the visa application – bogus English test results – applicant’s attempts no clarify results with testing agency – the correct test results would have met the criteria – potential adverse effect on sponsor’s business and employment of other staff – cancellation of son’s Australian Citizenship – decision under review set aside

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140
Migration Regulations 1994, Schedule 2, cl 457.223; r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248
Minister of Immigration and Citizenship v Brar (2012) 201 FCR 240
Saleem v Migration Review Tribunal [2004] FCA 234

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision made on 16 December 2020 by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa (‘the 457 visa’) under s.109(1) of the Migration Act 1958 (the Act).
2.The delegate cancelled the 457 visa on the basis that the applicant failed to comply with sections 101(b) and 103 of the Act by providing a bogus IELTS English test report and incorrect answers about her English test results on her 457 visa application form. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
3.For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is with respect to the first named applicant, Mrs Ranjit Kaur, (the applicant). The other visas for the applicant’s husband (Mr Sukhdeep Singh Sidhu) and the applicant’s underage son (Master Gurnoor Singh Sidhu) 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.
4.The applicant appeared before the Tribunal on 11 May 2021 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick. The…

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 Kaur (Migration)

Details

AGLC: Kaur (Migration) [2021] AATA 2157
Case: [2021] AATA 2157
Decision Date: 21 May 2021

CaseChat Overview and Summary

This matter concerned an appeal by Ms Kaur against the Minister's decision to cancel her Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The cancellation was based on the applicant providing incorrect information in her visa application, specifically regarding her English language test results, which were found to be bogus.

The primary legal issue before the court was whether the Minister's decision to cancel Ms Kaur's visa was lawful, particularly in light of the applicant's subsequent attempts to clarify her English test results with the testing agency. The court was required to consider the provisions of the *Migration Act 1958* (Cth) concerning non-compliance and the circumstances under which a visa may be cancelled, including mandatory cancellation provisions.

The court found that while the initial information provided was incorrect, the correct English test results would have met the visa criteria. It was also noted that the cancellation of the visa had a potential adverse effect on the sponsor's business and the employment of other staff. The court determined that the Minister's decision to cancel the visa was not open to them in the circumstances, and therefore, 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

Decision about non‑complianceThe Minister is to:(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and(b)decide whether there was non‑compliance by the visa holder in the way described in the notice. Cancellation of visa if information incorrect(1)The Minister, after:(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and(c) having regard to any prescribed circumstances;may cancel the visa.(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

Ratio Decidendi

Legal Principle Established

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