Nguyen (Migration) - [2021] AATA 3950

Nguyen (Migration) [2021] AATA 3950 (27 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Kim Long Nguyen
Mrs Thanh Tu Tran
CASE NUMBER:  2100191
HOME AFFAIRS REFERENCE(S):          BCC2020/2154523
MEMBER:Joanne Bakas
DATE:27 September 2021
PLACE OF DECISION:  Adelaide
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 second named applicant.

Statement made on 27 September 2021 at 1:31pm
CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – working only in the nominated occupation – position of Baker – site visit identified the applicant making pizzas – employing sponsor’s approval and business requirement – common practice by bakers across Australia – comparable duties of Fast Food Cook – decision under review set aside
LEGISLATION
Migration Act 1958, ss 116, 140, 348, 360
Migration Regulations 1994, Schedule 8; Condition 8607; r 2.86
CASES
Morgun v Minister for Immigration [2009] FMCA 1306
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 for review of a decision dated 6 January 2021 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).
The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant was not performing the tasks of a Baker (ANZSCO 351111) which was the position that he was nominated to work in for the sponsoring business. 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.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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 Nguyen (Migration)

Details

AGLC: Nguyen (Migration) [2021] AATA 3950
Case: [2021] AATA 3950
Decision Date: 27 September 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of a Temporary Skill Shortage (Class GK) visa, Subclass 482, held by the applicant, Mr. Nguyen. The dispute arose when Australian Border Force officers, during a site visit to the sponsoring employer, Waikerie New Land Pty Ltd (trading as New Land Bakery), observed the applicant preparing pizzas. This activity was considered by departmental officers to fall outside the nominated occupation of Baker and thus potentially breach a condition of his visa.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) existed. Specifically, the Tribunal had to ascertain if the applicant had failed to comply with condition 8607(1) of his visa, which mandates that the visa holder must only work in the occupation nominated in the application for the most recent Subclass 482 visa granted. The nominated occupation was Baker, and the observed activity of making pizzas was identified as a task associated with the occupation of Fast Food Cook.

The Tribunal reasoned that while the applicant admitted to preparing pizzas, and accepted that this inadvertently breached the visa condition as particularised, the employer sponsor had explained that pizza preparation was considered part of the applicant's duties as a Baker. The Tribunal noted that the employer sponsor's approval and business requirements were relevant, and that the common practice by bakers across Australia might encompass such duties. Crucially, the Tribunal concluded that it was not satisfied that the ground for cancellation under section 116(1)(b) was made out, meaning the power to cancel the visa did not arise. Consequently, the Tribunal set aside the decision to cancel Mr. Nguyen's visa and substituted a decision not to cancel it.

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. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.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)(b). 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)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8607(1) attached to the applicant’s visa. This condition requires the visa holder to only work in the occupation nominated by the nomination identified in the application for the most recent Subclass 482 visa granted to the holder. The Tribunal notes that the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 482 visa which was dated 23 November 2020. The NOICC indicates that the applicant was granted a Subclass 482 visa on 4 November 2019 and had been sponsored by Waikerie New Land Pty Ltd (trading as New Land Bakery) to work in the position of Baker. The NOICC refers to the Australian Border Force (ABF) officers conducting a site visit to the sponsors business and that as part of the site visit it was discovered that the applicant was performing tasks that are not defined within the duties of a Baker. Specifically the officers found that the applicant was preparing pizzas for the sponsor as part of the role. On 9 July 2020 ABF officers conducted a telephone interview with the applicant. During the interview the applicant stated he worked 15 hours a week from Thursday to Saturday undertaking a pizza shift and 24 hours a week from Friday to Sunday as a Baker. The NOICC refers to preparing pizzas as being one of the tasks performed under Fast Food Cook (ANZSCO 851111). The departmental officers concluded that the applicant was not performing the work in the occupation listed in the most recently approved nomination. The departmental delegate concluded that the applicant had not complied with paragraph 8607(1) attached to his visa. The applicant was invited to comment on whether he believed that the ground for cancellation existed and having regard to the relevant considerations whether or not the visa should be cancelled. The applicant responded to the NOICC in an email dated 7 December 2020 via his registered migration agent. The applicant notes that the employer sponsor explained to the officers that the making of pizzas were within the duties of the applicant’s role as a Baker. However, it was accepted that the ground for cancellation as particularised was valid and made out by the applicant being directed by his employer/sponsor to make pizza as part of his baking duties which had inadvertently breached his visa condition. The applicant noted that the cancellation power under section 116 of the Act is discretionary and sought for this discretion to be exercised in this favour such that his visa is not cancelled and made submissions in regard to the home discretionary cancellation policy matters to be considered.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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