Mathew (Migration)

[2021] AATA 3264

Mathew (Migration) [2021] AATA 3264 (24 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sam Vijo Mathew
Mrs Mary Sonia Audibert
Miss Kezia Sam
Miss Achsah Sam Sam Vijo Mathew

CASE NUMBER:  2014397

HOME AFFAIRS REFERENCE(S):          BCC2020/1230050

MEMBER:John Cipolla

DATE:24 August 2021

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 482 - Temporary Skill Shortage visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 24 August 2021 at 3:30pm

CATCHWORDS

MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – sponsorship cancelled and business barred from making future applications – cancellation and bar set aside on review – automatic cancellation of other applicants’ visas – decision under review set aside for first applicant, no jurisdiction for other applicants

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(g), 140(1), 140L(1)(a), 140M, 348

Migration Regulations 1994 (Cth), r 2.43(1)(l)(iv)

CASES

Rani v MIMA (1997) 80 FCR 379

Tien v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 September 2020 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).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that a prescribed ground for cancelling the visa applied to the applicant. That ground was that identified in r.2.43(1)(l)(iv), namely that the sponsorship by the applicant’s sponsoring business, Sapala Foods Pty Ltd, had been cancelled or barred under S.140M of the Migration Act. 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 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.

4. The applicants were represented in relation to the review by their registered migration agent.

5. 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

6. 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(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?

7. 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)(l)(iv) is relevant. That ground is that the approved standard business sponsorship, enabling the applicant to work for an Australian busines, Sapala Foods Pty Ltd, had been cancelled by the Department due to a finding that the business had provided false and misleading information to the Department. As a consequence, the business had been barred from making future applications as a standard business sponsor or a temporary activities sponsor.

8. Sapala Foods Pty Ltd sought merits review of the cancellation of the sponsorship and the sponsorship bar with the Administrative Appeals Tribunal. In a decision made on 24 August 2021 the Tribunal found that none of the circumstances under s.140L(1)(a) pertaining to the cancellation of the sponsorship by Sapala Foods Pty Ltd existed and that the power to take an action under s.140M did not arise.

9. The Tribunal in that case, set aside the decision under review, and substituted a decision not to take one or more of the actions specified in s.140M of the Migration Act 1958.

10. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(g) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

11. 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.

12. The Tribunal has no jurisdiction with respect to the other applicants.

    John Cipolla
    Senior Member