Papavanis (Migration) - [2021] AATA 2373

Papavanis (Migration) [2021] AATA 2373 (22 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Nikos Papavanis
Mrs Luljeta Papavani
Miss Ntenisa Papavani
Mr Ntonalnt Papavanis
Miss Ntenanta Papavani
CASE NUMBER:  2100403
HOME AFFAIRS REFERENCE(S):          BCC2020/1916215
MEMBER:Noelle Hossen
DATE:22 June 2021
PLACE OF DECISION:  Perth
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 other applicants.

Statement made on 22 June 2021 at 9:40am

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – employment ceased over 60 days – impact of the COVID-19 pandemic – employment not formally terminated – applicant seeking further sponsored positions – financial hardship – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 116, 140, 348
Migration Regulations 1994, Schedule 8, Condition 8107

CASES

Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80
Wan v MIMA (2001) 107 FCR 133

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 January 2021 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1) (b) on the basis that the first named applicant, (hereinafter referred to as “applicant”) has not worked for a period exceeding 60 days and does not have a nomination from a new sponsor or any other pending nominations with a new sponsor. The applicant had remained in Australia for over six months since ceasing employment with the approved sponsor. The issue in the present case is whether the 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 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 Decision of the Delegate to cancel the visa was provided to the Tribunal by the applicant.

5. The visa was granted on the 8 June 2017 and was due to expire on the 8 June 2021. The Department issued a Notice of intention to cancel the visa on the 30 November 2020. The visa was cancelled by the Department…

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 Papavanis (Migration)

Details

AGLC: Papavanis (Migration) [2021] AATA 2373
Case: [2021] AATA 2373
Decision Date: 22 June 2021

CaseChat Overview and Summary

The applicant, Mr. Papavanis, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to affirm the cancellation of his Subclass 457 (Temporary Work (Skilled)) visa. The cancellation was based on the applicant's employment ceasing for more than 60 days, a ground for cancellation under the *Migration Act 1958* (Cth). The applicant contended that the cessation of employment was due to the impact of the COVID-19 pandemic, that his employment had not been formally terminated, and that he was seeking further sponsored positions, experiencing financial hardship. The Administrative Appeals Tribunal had affirmed the delegate's decision to cancel the visa.

The primary legal issue before the Federal Circuit Court was whether the Tribunal had erred in law in affirming the cancellation of the applicant's visa. Specifically, the court was required to consider whether the Tribunal had failed to adequately consider the impact of the COVID-19 pandemic on the applicant's employment circumstances and whether it had properly applied the relevant provisions of the *Migration Act 1958* and the *Migration Regulations 1994* concerning the cessation of employment and the discretion to cancel a visa.

Her Honour Judge Hossen found that the Tribunal had not erred in law. The Tribunal had considered the applicant's submissions regarding the pandemic and financial hardship, but concluded that these circumstances did not provide a basis to exercise discretion against cancellation. The Tribunal correctly applied the legislative framework, which mandates cancellation upon the cessation of employment for the specified period, and the discretion to not cancel was not enlivened by the facts presented. The Tribunal's findings of fact were open to it on the evidence before it.

The application for judicial review was dismissed.

Orders