Kethireddy (Migration) - [2018] AATA 279

Kethireddy (Migration) [2018] AATA 279 (2 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Uday Bhaskar Reddy Kethireddy
Ms Susmitha Yarram
CASE NUMBER:  1619968
DIBP REFERENCE(S)  BC2016/1837748
MEMBER:L. Hawas
DATE:  2 February 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
The Tribunal has no jurisdiction with respect to the second applicant.

Statement made on 02 February 2018 at 3:28pm

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Working in a business not the sponsor – Sponsor no longer lawfully operating – Applicant ceased work over 90 days – Applicant working for another business – Further sponsorship unapproved – Applicant’s name on staff contacts list – Applicant’s awareness of work conditions of his visa
LEGISLATION
Migration Act 1958, ss 48, 116, 140, 348
Migration Regulations 1994, r 2.12
CASES
Chow v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 1459
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 to review a decision dated 22 November 2016 made by a delegate of the Minister for Immigration to cancel the first applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (Act).
The first applicant’s visa was subject to condition 8107(3)(a)(ii)(B), which provided that the first applicant must work only in a position in the business of his approved standard business sponsor or an associated entity of the sponsor. The delegate cancelled the first applicant’s visa under s.116(1)(b) of the Act because he breached condition 8107(3)(a)(ii)(B) by working in a business that was not that of the sponsor or an associated entity of the sponsor. In this review, the Tribunal must decide whether that ground for cancellation is made out, and if so, whether the proper exercise of its discretion requires the visa to remain cancelled.
For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision before the Tribunal is the decision cancelling the first applicant’s visa. The second applicant’s visa was automatically cancelled as a consequence of the first applicant’s visa cancellation. Accordingly, the second applicant’s visa was not cancelled by decision but by force of the operation of s.140(1) of the Act. The cancellation of the second applicant’s visa was self-executing on the cancellation of the first applicant’s: 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 second applicant’s visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to it.
For the following reasons, the Tribunal has concluded that the decision to cancel the first applicant’s visa should be affirmed.
Evidence before the Tribunal
The delegate’s decision
The delegate’s decision…

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 Kethireddy (Migration)

Details

AGLC: Kethireddy (Migration) [2018] AATA 279
Case: [2018] AATA 279
Decision Date: 2 February 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of the first applicant's Subclass 457 (Temporary Work (Skilled)) visa. The visa was sponsored by Audelight Pty Ltd, and the applicant was granted the visa on 20 November 2013, valid for four years. The dispute arose when the applicant was observed working for Auspegasus Pty Ltd, trading as Alamanda Café and Providore, at a time when Auspegasus's nomination application was still pending. This led to the delegate cancelling the applicant's visa on 22 November 2016, on the grounds of breaching visa condition 8107(3)(a)(ii)(B).

The primary legal issue before the Tribunal was whether the first applicant had breached condition 8107(3)(a)(ii)(B) of his visa, which stipulated that he must work only in a position within the business of his sponsor or an associated entity. The Tribunal was required to determine if the evidence supported the delegate's finding that the applicant was working for Auspegasus, a business other than his sponsor, Audelight, and if this constituted a lawful ground for visa cancellation under section 116(1)(b) of the Migration Act 1958 (Cth).

The Tribunal reasoned that the evidence, including customer service letters addressed to the applicant and his name appearing on a staff contact list at Alamanda Café with a recent date, indicated he was working for Auspegasus. While the applicant claimed he was merely observing on the day of the site visit and had not worked for Auspegasus before obtaining a bridging visa with work rights, the Tribunal found this assertion unconvincing in light of the other evidence. The Tribunal applied the principle that a visa holder must comply with all visa conditions, and a breach of condition 8107(3)(a)(ii)(B) provides a ground for cancellation under section 116(1)(b) of the Act.

Ultimately, the Tribunal concluded that the evidence supported the finding that the first applicant had breached his visa condition by working for a business other than his sponsor. Balancing all relevant factors, the Tribunal determined that affirming the delegate's decision to cancel the visa was the correct and preferable exercise of its discretion. The Tribunal affirmed the cancellation of the first applicant's Subclass 457 visa.

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 first applicant’s visa should be affirmed.Evidence before the TribunalThe delegate’s decision The delegate’s decision record dated 22 November 2016, which the first applicant gave to the Tribunal in the review, recorded the following:(a)On 20 November 2013, the first applicant was granted a temporary business entry (class UC), temporary work (skilled) (subclass 457) visa, which was to remain current for four years until 20 November 2017;(b)The standard business sponsor who sponsored the first applicant for his 457 visa was Audelight Pty Ltd (Audelight);(c)The first applicant’s 457 visa contained condition 8107(3)(a)(ii)(B). The occupation listed in Audelight’s approved nomination was not specified in the written instrument referred to in condition in 8107(3A), and did not exempt the first applicant from having to comply with that condition;(d)On 24 May 2016, Auspegasus Pty Ltd trading as Alamanda Café and Providore lodged an application to nominate the first applicant;(e)On 8 November 2016, department officers conducted a site visit at the Alamanda Café premises at 2-10 Paradise Parade, Point Cook. At that time, and at the time the delegate cancelled the first applicants visa (22 November 2016), Auspegasus’ nomination application was still pending;(f)During the site visit, the department officers observed:(i)Letters from satisfied customers thanking the first applicant for his customer service were affixed to a cork board next to the entrance to the kitchen;(ii)A staff contact list was displayed in the premises containing the first applicant’s name and mobile phone number along with the date 15/04/2016 next the first applicant’s name;(g)The department officers interviewed the first applicant during the site visit but the content of the interview was not set out in the delegate’s decision. The delegate stated that ‘it was established that [the first applicant] had been working for……… Auspegasus prior to the nomination being approved’. (h)By notice of intention to cancel the first applicant’s visa dated 11 November 2016, the department notified him that there were grounds to cancel his visa for breach of condition 8107(3)(a)(ii)(B). The notice sought a written response;(i)The first applicant responded in writing by a letter dated 17 November 2017. Alice Zhuang, Audelight’s principal, also submitted to the department a letter dated 19 November 2019 in response the notice;(j)After considering the evidence before her, the delegate concluded that the first applicant was working in the business of Auspegasus, which was not that of Audelight being the first applicant’s approved standard business sponsor;(k)On those grounds, the delegate found that the first applicant had breached condition 8107(3)(a)(ii)(B) of his visa; and (l)The delegate then concluded that the appropriate exercise of her discretion required her to cancel the first applicant’s 457 visa under s. 116(1)(b) of the Act as of 22 November 2016.

Decision

Reasons for decision

Having regard to all the evidence before it, and balancing the matters both in favour of setting aside the delegate’s decision and affirming it, the Tribunal concludes that the correct and preferable exercise of its discretion favours affirming the delegate’s decision to cancel the first applicant’s 457 visa.Decision The Tribunal affirms the decision to cancel the first applicant’s Subclass 457 (Temporary Work (Skilled)) visa. The Tribunal has no jurisdiction with respect to the second applicant.L. HawasSenior Member

Ratio Decidendi

Legal Principle Established

Pang also gave evidence for the first applicant. He said that:(a)He was a director of Audelight, and through his company held 20% of the Audelight shares;(b)Audelight had an interest (within an overall partnership) in a franchised Outback Jacks steakhouse, which traded in Point Cook. In about November 2013, Audelight employed the first applicant as the restaurant manager of its Point Cook steakhouse, and it successfully nominated him for a 457 visa at about that time. Subsequently, the first applicant worked as the restaurant manager of the Point Cook Outback Jacks;(c)On 23 February 2016, the partnership that owned the Point Cook Outback Jacks sold the business. The new owner continued to trade from the same location but converted the business to an Indian Restaurant trading under another name;(d)When the partnership sold the Outback Jacks business, he told the buyer that his restaurant manager (being the first applicant) was on a 457 visa, and he asked the new owner whether he would be prepared to keep the first applicant employed in that role (and to apply to nominate him if necessary). The buyer told him that he did not want to employ anybody on a 457 visa;(e)The first applicant was a very good restaurant manager, and became his good friend. When his partner (Zhuang) told him that she needed somebody to manage the Alamanda Café, he was happy to refer the first applicant to her; and(f)He does not have any ownership interest in the Alamanda Café (or Auspegasus). He helps out at the café occasionally. Consideration of claimsDoes the ground for cancellation exist? Under s.116 of the Act, the Minister may cancel a visa if he is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, those 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 proper exercise of the discretion requires the visa to be cancelled, having regard to all the relevant circumstances, which may include matters of government policy. The Minister or the Tribunal may cancel a visa under s.116(1)(b) of the Act if satisfied that the holder did not comply with a condition of the visa. Here, the first applicant’s visa contained condition 8107(3)(a)(ii)(B), which provided that the first applicant must work only in a position in the business of the sponsor or an associated entity of the sponsor.[2] [2] The department’s records on the Integrated Client Services Environment (ICSE) confirm that the first applicant’s visa was subject to condition 8107. During the hearing, the first applicant said that he was not working for Auspegasus at the Alamanda Café on 8 November 2017 when the department officers conducted their site visit, and he did not work at the Alamanda Café at any time before May 2017 when he was granted a bridging visa with work rights. He said he was only at the café observing on the day of the site visit. Accordingly, he did not breach condition 8107(3)(a)(ii)(B) as the delegate found, and the delegate did not have lawful grounds to cancel his visa.