Ke (Migration) - [2021] AATA 4401

Ke (Migration) [2021] AATA 4401 (5 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Jie-Zhan Ke
Miss YI-HSUAN CHUANG
CASE NUMBER:  2106457
HOME AFFAIRS REFERENCE(S):          BCC2021/994198
MEMBER:Amanda Mendes Da Costa
DATE:5 November 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 407 (Training) visa.
The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 5 November 2021 at 1.52pm
CATCHWORDS
MIGRATION – cancellation – Training (Class GF) visa – Subclass 407 (Training) – application for another visa subclass made and cancellation of original subclass visa requested – legal advice obtained after visa cancelled and application for cancellation withdrawn – decision under review set aside for first applicant, no jurisdiction for second applicant
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(g), 140(1), 348
Migration Regulations 1994 (Cth), r 2.43(1)(g)
CASES
Rani v MIMA (1997) 80 FCR 379
Tien v MIMA (1998) 89 FCR 8

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 12 May 2021 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 407 (Training) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(g) on the basis that the applicant had requested the Minister (in writing) for cancellation of the visa. 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 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 26 October 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined 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 has taken into account that the applicant was prepared to participate in a video hearing and that the technology for facilitating the hearing…

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 Ke (Migration)

Details

AGLC: Ke (Migration) [2021] AATA 4401
Case: [2021] AATA 4401
Decision Date: 5 November 2021

CaseChat Overview and Summary

This matter concerned an application for review of a decision to cancel the first applicant's Subclass 407 (Training) visa. The applicant had resigned from his employment as a Trainee Technician due to workplace bullying and subsequently applied for a Subclass 408 visa. He also requested the cancellation of his Subclass 407 visa. The Department issued a Notice to Consider Cancellation (NOICC) on the basis of this request. The applicant responded to the NOICC, detailing the workplace issues and his inability to return to his home country due to the COVID-19 pandemic, and his intention to work in the meat industry. The Tribunal was required to determine whether the grounds for cancellation existed and, if so, whether cancellation was appropriate in the circumstances.

The Tribunal considered the provisions of section 116 of the Migration Act 1958 (Cth) and regulation 2.43 of the Migration Regulations 1994 (Cth) regarding visa cancellation. It accepted that the applicant had been employed as a Trainee Technician and had resigned due to workplace bullying and safety concerns. The Tribunal noted the applicant's request for cancellation of his visa and the subsequent NOICC. In its reasoning, the Tribunal weighed the circumstances as a whole, including the applicant's explanation for his actions, his inability to return to his home country due to the pandemic, and his desire to work in a critical sector to address labour shortages.

The Tribunal concluded that, in light of all the circumstances, the decision to cancel the applicant's visa should be set aside. The Tribunal substituted a decision not to cancel the first applicant's Subclass 407 visa. The Tribunal also noted that it had no jurisdiction with respect to the second named applicant.

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)(g). 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? A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(g) is relevant. The Tribunal accepts that prior to the cancellation of the applicant’s visa, he was employed as Trainee Technician by A&J Australia in Melbourne. The applicant ceased employment with A&J Australia when he resigned from his position as a Trainee Technician on 19 April 2021. The applicant subsequently submitted an application to the Department for a subclass 408 visa[1]. On 27 April 2021 the applicant wrote to the Department requesting cancellation of his subclass 407 visa. [1] This application was lodged on 20 April 2021. The Tribunal notes that on 28 April 2021 the Department sent the applicant a Notice to Consider Cancellation (NOICC) advising him that it was considering cancellation of his visa on the basis that he had written to it on 27 April 2021, requesting the Department to cancel the visa. On 29 April 2021 the applicant responded to the NOICC as follows:When I was working at the company (A&J Australia), I have suffered from countless incidents of workplace bullying; however, there were no improvements made whatsoever after I had reported these bullying incidents to my boss every time they occurred. In addition, that company paid zero attention to employee safety and has violated relevant laws and regulations repeatedly. Many workplace accidents have taken place at that company. All of these incidents made me [to] feel consistently under extreme pressure and have affected my long-term physical well-being and emotionally exhausted. It caused me to suffer from insomnia and got a bald spot. Thus, I decided to quit and terminated the contract, which means cancelled the visa.Due to the current CoVID-19 pandemic, I am unable to return to my country. According to my work experience as a process worker in a beef factory. I have secured a new job in the critical meat sector (meat industry), and I will be able to work once I obtain the new visa. I would like to transfer my application to the 408 visa then I can stay here to work. I hope that could be helpful to solve labour shortage in Australia and I can contribute my expertise as much as I can to the new company.

Decision

Reasons for decision

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 407 (Training) visa. The Tribunal has no jurisdiction with respect to the second named applicant.Amanda Mendes Da CostaMember

Ratio Decidendi

Legal Principle Established

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