Patel (Migration) - [2024] AATA 2219

Patel (Migration) [2024] AATA 2219 (14 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Yamini Pratikkumar Patel
Mr Pratikkumar Nareshkumar Patel
Master Samrat Patel
Master Eric Patel
REPRESENTATIVE:  Mr Udaykumar Mishra (MARN: 0215810)
CASE NUMBER:  2404200
HOME AFFAIRS REFERENCE(S):         BCC2023/6444268
MEMBER:Alison Mercer
DATE:14 June 2024
PLACE OF DECISION:  Melbourne
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 14 June 2024 at 3:38pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 - Temporary Skill Shortage – Standard Business Sponsor (SBS) cancelled and barred for employer – applicant actively seeking a new employer and nomination – family health issues – emotional and financial hardship – spouse’s senior managerial position – best interests of the children – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 48, 116, 140, 348, 359
Migration Regulations 1994, r 2.43
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

This is an application for review of a decision dated 1 March 2024 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 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(g) on the basis that prescribed cancellation grounds under r.2.43(1)(l)(iv) of the Migration Regulations 1994 (Cth) (the Regulations) existed; namely, that the applicant’s sponsoring employer had had its approval as a Standard Business Sponsor (SBS) cancelled by the Department and had been barred for 5 years from seeking approval again as an SBS. The delegate considered whether factors existed that weighed against cancellation of the applicant’s visa, taking into account information provided by her that the SBS cancellation and bar decision was outside her control, that she was actively seeking a new employer and that employer was about to nominate her, and that her 2 children were born in Australia and it would cause significant financial and emotional disruption to the family if they had to depart Australia. The applicant also noted that one of her sons had recently required emergency dental surgery. The delegate concluded that these factors did not outweigh the grounds for cancellation of the applicant’s subclass 482 visa. The delegate therefore cancelled the applicant’s subclass 482 visa, and the visas held by her family unit members were automatically cancelled as well as a result.
The Tribunal received a review application from the applicants on 6 March 2024. It was accompanied by a copy of the decision and an authority by which the applicants appointed a registered migration agent, Mr Uday Mishra, as their representative and authorised recipient…

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 Patel (Migration)

Details

AGLC: Patel (Migration) [2024] AATA 2219
Case: [2024] AATA 2219
Decision Date: 14 June 2024

CaseChat Overview and Summary

This matter concerned an application for review of a decision to cancel the applicant's Subclass 482 (Temporary Skill Shortage) visa. The applicant, a primary sponsored person, had their visa granted on 10 October 2021, with an expiry date of 1 October 2025. The cancellation decision was made on 1 March 2024, following the cancellation of the applicant's Standard Business Sponsor (SBS), Astar Caterers Pty Ltd, and a five-year bar imposed on the company under s 140M of the Migration Act 1958 (Cth). The review was heard by Alison Mercer, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant's Subclass 482 visa should be cancelled, given that the ground for cancellation under s 116(1)(g) of the Act, specifically regulation 2.43(1)(l)(iv) of the Migration Regulations 1994, had been established due to the sponsor's cancellation and bar. This required the Tribunal to consider the exercise of discretion in deciding whether to cancel the visa, having regard to all relevant circumstances.

The Tribunal found that the ground for cancellation under s 116(1)(g) was made out, as the applicant's sponsor had been cancelled and barred under s 140M. However, this ground did not mandate cancellation under s 116(3). The Tribunal then considered the exercise of discretion, applying the policy outlined in the Department's Procedures Advice Manual (PAM3) concerning general visa cancellation powers. This involved weighing various factors, including the purpose of the visa holder's stay, compliance with visa conditions, the degree of hardship to the visa holder and family members, the circumstances in which the ground for cancellation arose, the visa holder's behaviour towards the department, potential consequences for other persons, mandatory legal consequences of cancellation, and Australia's international obligations, particularly the best interests of children. The Tribunal noted that matters should generally be weighed in favour of the visa holder.

Having considered all the circumstances, including the applicant's active search for a new employer, family health issues, and the emotional and financial hardship that cancellation would cause, the Tribunal concluded that the visa should not be cancelled. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 482 visa. The Tribunal noted it had no jurisdiction concerning other applicants.

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 LAW, 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)(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? 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 reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(1)(l)(iv) is relevant. This sub-subparagraph provides that [Tribunal emphasis in bold font]:…(l) in the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa, a Subclass 482 (Temporary Skill Shortage) visa or a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa who is a primary sponsored person in relation to a person who is, or was, a standard business sponsor or party to a labour agreement (the sponsor) — that:(ii) the sponsor has given false or misleading information to Immigration or the Tribunal; or(iii) the sponsor has failed to satisfy a sponsorship obligation; or (iv) the sponsor has been cancelled or barred under section 140M of the Act; or(v) the labour agreement has been terminated, has been suspended or has ceased;… The Department’s records indicate that the SBS who sponsored and nominated the applicant for her subclass 482 visa as a Chef was Astar Caterers Pty Ltd. The Department’s records further indicate that the applicant was granted her subclass 482 visa on 10 October 2021 and that it would have been valid to 1 October 2025, if not for the Department’s decision to cancel it on 1 March 2024. Finally, the Department’s records indicate that on 31 October 2023, a delegate of the Minister for Immigration made a decision pursuant to s.140M of the Act to cancel Astar Caterers Pty Ltd’s SBS approval and impose a 5 year bar on the company from seeking approval again as an SBS. Given this, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.Consideration of discretion There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers,’ as follows: …Matters that should be consideredIt is policy that delegates take into account the following ten matters, if relevant, when deciding whether to cancel a visa; they should consider each of these nine matters, even if not specifically raised by the visa holder. The matters that should be considered evolved from a body of case law relevant to visa cancellations and are designed to afford fairness to a visa holder. The weight applied to each of the matters is at the discretion of the delegate, and each matter must be apportioned a weighting. Generally, matters must be weighed in favour of the visa holder, not against the visa holder:· The purpose of the visa holder’s travel to and stay in Australia: delegates should assess whether the visa holder has a compelling need to travel to or remain in Australia.· The extent of compliance with visa conditions: delegates should assess whether the visa holder has otherwise complied with visa conditions now and on previous occasions.· The degree of hardship that may be caused to the visa holder and any family members: delegates should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision.· The circumstances in which the ground for cancellation arose: delegates should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, delegates should consider whether the relationship has broken down as a result of family violence. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder.· The visa holder’s past and present behaviour towards the department (for example, whether they have been truthful and cooperative in their dealings with the department).· Whether there are persons in Australia whose visas would, or may, be cancelled under s140.· Whether there are mandatory legal consequences to a cancellation decision – as three examples:owhether indefinite detention is a possible consequence of the cancellation decision , if a person cannot be removed from Australia consistently with Australia’s non-refoulement obligationsowhether there are provisions in the Act which prevent the person from making a valid application for a visa without the Minister personally intervening (for example, s46A, s46B, s48, s48A, s91E, s91K and s91P of the Act) andowhether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and liable to be detained under s189, and liable for removal under s198.· Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation, – as two examples:oIf there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, delegates are obliged to treat as a primary consideration the best interests of the children - for more information, refer to:§ Australia's international obligations and§ PAM3: Act - Compliance and Case Resolution - Case resolution - Guiding principles - Treatment of children.oWhether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations. It is important to note that a cancellation delegate is not required to undertake a full analysis of whether a person is owed protection, as a cancellation decision is not, in and of itself, a decision to remove a person from Australia.· Any other relevant matters.If a delegate is considering whether to cancel a permanent visa, they are also to take into account whether the visa holder has formed strong family, business or other ties in Australia.…

Decision

Reasons for decision

Having carefully considered the above circumstances as a whole, the Tribunal concludes that the visa should not be cancelledDECISION 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.Alison MercerMember

Ratio Decidendi

Legal Principle Established

Given this, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.Consideration of discretion There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers,’ as follows: …Matters that should be consideredIt is policy that delegates take into account the following ten matters, if relevant, when deciding whether to cancel a visa; they should consider each of these nine matters, even if not specifically raised by the visa holder. The matters that should be considered evolved from a body of case law relevant to visa cancellations and are designed to afford fairness to a visa holder. The weight applied to each of the matters is at the discretion of the delegate, and each matter must be apportioned a weighting. Generally, matters must be weighed in favour of the visa holder, not against the visa holder:· The purpose of the visa holder’s travel to and stay in Australia: delegates should assess whether the visa holder has a compelling need to travel to or remain in Australia.· The extent of compliance with visa conditions: delegates should assess whether the visa holder has otherwise complied with visa conditions now and on previous occasions.· The degree of hardship that may be caused to the visa holder and any family members: delegates should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision.· The circumstances in which the ground for cancellation arose: delegates should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, delegates should consider whether the relationship has broken down as a result of family violence. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder.· The visa holder’s past and present behaviour towards the department (for example, whether they have been truthful and cooperative in their dealings with the department).· Whether there are persons in Australia whose visas would, or may, be cancelled under s140.· Whether there are mandatory legal consequences to a cancellation decision – as three examples:owhether indefinite detention is a possible consequence of the cancellation decision , if a person cannot be removed from Australia consistently with Australia’s non-refoulement obligationsowhether there are provisions in the Act which prevent the person from making a valid application for a visa without the Minister personally intervening (for example, s46A, s46B, s48, s48A, s91E, s91K and s91P of the Act) andowhether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and liable to be detained under s189, and liable for removal under s198.· Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation, – as two examples:oIf there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, delegates are obliged to treat as a primary consideration the best interests of the children - for more information, refer to:§ Australia's international obligations and§ PAM3: Act - Compliance and Case Resolution - Case resolution - Guiding principles - Treatment of children.oWhether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations. It is important to note that a cancellation delegate is not required to undertake a full analysis of whether a person is owed protection, as a cancellation decision is not, in and of itself, a decision to remove a person from Australia.· Any other relevant matters.If a delegate is considering whether to cancel a permanent visa, they are also to take into account whether the visa holder has formed strong family, business or other ties in Australia.…