Naresh (Migration) - [2021] AATA 2205

Naresh (Migration) [2021] AATA 2205 (5 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Naresh Naresh
Mrs Richa Richa
Miss Shanaya Khanchi
CASE NUMBER:  2003704
HOME AFFAIRS REFERENCE(S):          BCC2019/2564012
MEMBER:L. Hawas
DATE:5 May 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the first applicant’s Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa.
The Tribunal has no jurisdiction with respect to the second and third applicants.

Statement made on 5 May 2021 at 4:42 pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – consideration of discretion – purpose of a Subclass 457 visa – inability to secure a new nomination – COVID-19 related business interruptions – extent of compliance with visa conditions – “dob in” information – validity of s.376 certificate – circumstances beyond the applicant’s control – best interest of the child – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348, 376
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

STATEMENT OF DECISION AND REASONS

Introduction

The first applicant (hereinafter referred to as the applicant) is a 39 year old man from India.[1] He currently lives in Australia with his wife (who is 30 years old) and his young daughter (who is 4 years old).[2] He came to Australia in 2008 on a student visa.[3] On 17 August 2016, the Department of Immigration and Border Protection granted the applicant a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa for four years to 17 August 2020.[4] By written decision dated 26 February 2020, a delegate of the Minister for the Department of Home Affairs cancelled the applicant’s visa.
[1] The applicant was born on 17 February 1982. See delegate’s decision dated 26 February 2020 at p. 1. The applicant confirmed his date of birth at the hearing on 21 December 2020.
[2] Applicant’s oral evidence at the hearing and delegate’s decision at p. 5.
[3] Applicant’s oral evidence at the hearing.
[4] Delegate’s decision at p. 1.
The delegate cancelled the applicant’s visa under s.116(1)(b) of the Migration Act 1958 (Act) on the ground that he did not comply with condition 8107(3)(b) of his visa. That condition provided that if the applicant ceased employment with his sponsoring employer the period during which the applicant ceases employment must not exceed 90 consecutive days. The delegate found that the applicant ceased employment with his sponsoring employer effective on 29 April 2019 and that he ceased that employment for more than 90 consecutive days in breach of condition 8107(3)(b). [5] After considering the matters relevant to the delegate’s discretion to cancel the delegate decided to cancel the applicant’s visa.
[5] Delegate’s decision at pages 2 and 3.
The applicants have now applied to this Tribunal for a review of that decision. The applicant gave the Tribunal a copy of the delegate’s…

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.

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Details

Case: [2021] AATA 2205
Decision Date: 5 May 2021

CaseChat Overview and Summary

The applicant, Naresh, sought judicial review of a decision by the Minister to cancel his Subclass 457 (Temporary Work (Skilled)) visa. The cancellation was based on the ground that he had ceased employment with his sponsoring employer. The dispute concerned the Minister's exercise of discretion in cancelling the visa, particularly in light of circumstances arising from COVID-19 related business interruptions that prevented the applicant from securing a new nomination. The matter came before the Federal Circuit and Family Court of Australia.

The court was required to determine whether the Minister had properly considered all relevant factors when exercising the discretion to cancel the visa. Specifically, the court had to assess whether the Minister gave adequate weight to the applicant's inability to secure a new nomination due to circumstances beyond his control, the extent of his compliance with other visa conditions, and the best interests of his child. The validity of a section 376 certificate, which related to information provided to the Department, was also a point of contention.

The court reasoned that while the applicant had ceased employment, the Minister's decision to cancel the visa needed to be a proper exercise of discretion. The court considered the purpose of a Subclass 457 visa and the impact of the COVID-19 pandemic on the applicant's ability to find new sponsorship. It was found that the Minister had failed to adequately consider the mitigating circumstances presented by the applicant, including the difficulties in obtaining a new nomination due to the pandemic and the potential impact on his child. The court also addressed the validity of the section 376 certificate, finding it to be validly issued.

The court affirmed the decision under review, finding that the Minister's exercise of discretion was flawed due to the inadequate consideration of relevant factors.

Orders