Parekh (Migration) - [2018] AATA 2713

Parekh (Migration) [2018] AATA 2713 (23 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Komalben Nipunj Parekh
Mr NIPUNJ PAREKH
CASE NUMBER:  1714884
DIBP REFERENCE(S):  BCC2015/3412478
MEMBER:Denise Connolly
DATE:23 May 2018
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 857 (Regional Sponsored Migration Scheme) visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 23 May 2018 at 1:29pm

CATCHWORDS
Migration – Cancellation – Employer Nomination (Residence) (Class BW) visa – Subclass 857 (Regional Sponsored Migration Scheme) - Whether the ground for cancellation exists – Whether the applicant made a genuine effort to be engaged in employment for the required period – Where sponsoring business ceased operating – Where the applicant’s husband owned the sponsoring business – Significant periods of sick leave taken – Where the sponsoring business’ ceasing operations was beyond the applicant’s control – Genuine attempt made to engage in employment – Decision set aside and substituted
Practice and Procedure – Consequential cancellation does not involve a reviewable decision – Tribunal has no jurisdiction to review a consequential cancellation
LEGISLATION
Migration Act 1958 (Cth), s 137Q, 137T, 348, 359A, 359AA, 375A
Migration Regulations 1994 (Cth), r 2.50AA
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 July 2017 to cancel the first named applicant’s Subclass 857 (Regional Sponsored Migration Scheme) visa under s.137Q of the Migration Act 1958 (the Act).
The first named applicant (the applicant) was granted a Subclass 857 visa on 15 May 2013. The delegate cancelled the visa under s.137Q(2) on the basis that the applicant’s employment referred to in the relevant employment nomination was terminated within the required two year period and the applicant was unable to satisfy the delegate that she had made a genuine effort to be engaged in the employment for the required period. 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 that with respect to the applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.137T(1) of the Act. As no decision was involved in the visa cancellation under s.137T(1), the Tribunal has no jurisdiction with respect to the second named applicant.
On 23 February 2018 the Tribunal invited the applicant to attend a hearing on 26 March 2018. On 2 March 2018 the representative, a registered migration agent, requested that the hearing…

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: [2018] AATA 2713
Decision Date: 23 May 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered a dispute concerning the cancellation of a Subclass 857 (Regional Sponsored Migration Scheme) visa granted to Ms. Parekh. The cancellation was initiated by the Minister under section 137Q of the Migration Act 1958 (Cth) on the grounds that Ms. Parekh had not commenced her employment with her sponsoring business, Niki’s Hair Salon Pty Ltd, within six months of the visa grant. The AAT was tasked with determining whether this ground for cancellation was established.

The primary legal issue before the Tribunal was whether the Minister had a valid ground to cancel Ms. Parekh's visa under section 137Q. This required the Tribunal to assess whether Ms. Parekh had genuinely attempted to engage in the employment for which her visa was granted, particularly in light of allegations that her husband owned the sponsoring business and that the business had ceased operating. The Tribunal also implicitly considered the impact of significant periods of sick leave taken by Ms. Parekh and whether the cessation of the business's operations was beyond her control.

The Tribunal found that while concerns about the business's operation had been raised prior to the visa grant, the delegate was satisfied at that time that the business was actively operating. Subsequent allegations regarding the husband's ownership and the applicant's residence were noted but did not appear to have led to immediate action. Crucially, the Tribunal was not satisfied that the ground for cancellation, namely the failure to commence employment within the prescribed period, had been made out. The Tribunal reasoned that the cessation of the sponsoring business's operations, which occurred after the visa grant, was beyond the applicant's control, and that she had made a genuine effort to be engaged in employment.

Consequently, the Tribunal set aside the decision to cancel Ms. Parekh's Subclass 857 visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning another applicant.

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.CONSIDERATION OF CLAIMS AND EVIDENCE Under s.137Q the Minister has the power to cancel a ‘regional sponsored employment visa’ on specified grounds. ‘Regional sponsored employment visa’ means a visa of a kind included in a class of visas that has the words ‘Employer Nomination’ in its title and is prescribed by the regulations for the purposes of the definition in s.137Q(3). The visas currently prescribed by r.2.50AA of the Migration Regulations 1994 are: Subclass 119 (Regional Sponsored Migration Scheme); Subclass 187 (Regional Sponsored Migration Scheme) and Subclass 857 (Regional Sponsored Migration Scheme). The applicant has provided to the Tribunal a copy of the delegate’s record of decision to cancel the visa under s.137Q of the Act. It sets out the following information. The applicant was sponsored to be employed as a hairdresser by Niki’s Hair Salon Pty Ltd located in Moss Vale, in regional NSW. The contact person listed on the Form 1054 - Employer Nomination under Regional Sponsored Migration Scheme is Miss Sangita Devi Gounder. The visa was granted on 15 May 2013, requiring the applicant to work as a hairdresser at the salon in Moss Vale. Before the visa was granted there had been a site visit undertaken by the Department in August 2012 and concerns were raised as to whether the business was operating. However the delegate making the decision to grant the visa made a case note on 10 May 2013 that the applicant had provided further evidence and she was satisfied that the business was actively and lawfully operating in Australia. The Department’s records indicate that in September 2014 the Department received an allegation that the business was owned by the applicant’s husband and that he opened the business for his wife’s permanent residence application. The informant alleged that the applicant had claimed that she was living in the Moss Vale area but she was actually living in at [an address in] Parramatta. The informant also alleged that the applicant was working for cash somewhere else as the husband had closed the shop, and that the wife was not actually working at the business. The records do not indicate that the Department took action in response to this allegation. The Department’s records indicate that the applicant applied for Australian citizenship in June 2015. The Department sent the applicant a letter on 9 September 2015 inviting her comments on information which the delegate considered indicated that the applicant is not of good character. The decision record for that application indicates that the delegate decided the applicant was not of good character and refused the citizenship application (on 25 July 2017, after the visa cancellation, the subject of this review). The applicant was issued with a Notice of Proposed Cancellation (Notice) on 17 January 2017 under s.137Q(1) on the grounds that the delegate had formed the view that the applicant did not commence her employment with her sponsor Niki’s Hair Salon Pty Ltd within six months of the grant of her Subclass 857 visa.

Decision

Reasons for decision

For these reasons, the Tribunal is not satisfied that the relevant ground for cancellation in s.137Q 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 857 (Regional Sponsored Migration Scheme) visa. The Tribunal has no jurisdiction with respect to the other applicant.Denise ConnollyMember

Ratio Decidendi

Legal Principle Established

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