Rahman (Migration) - [2021] AATA 3554

Rahman (Migration) [2021] AATA 3554 (19 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Musammat Mahnaz Rahman
Master Maimunah Ahamed
CASE NUMBER:  2016052
HOME AFFAIRS REFERENCE(S):          BCC2020/1723731
MEMBER:Noelle Hossen
DATE:19 August 2021
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
The second named applicant’s application is dependent on the first named applicant’s application.

Statement made on 19 August 2021 at 1:59pm
CATCHWORDS
MIGRATION– cancellation– 457 (Temporary Work (Skilled)) visa – breached condition 8107 – employer was not an approved standard business sponsor – circumstances that arose were beyond her control – applicant had continued to work in her chosen field – applicant continued to pursue employment –decision under review set aside
LEGISLATION
Migration Act 1958, ss 116, 140, 348
CASES
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 30 October 2020 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) 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 did not comply with paragraph 3 (a) (ii) (B) of condition 8107 attached to their visa. 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.
The Decision record of the 30 October 2020 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The Tribunal summarises those reasons as follows:
On the 3 October 2018 the first named applicant was granted a subclass 457 visa to remain valid until the 3 October 2022.
The standard visa sponsor who most recently nominated the first named applicant to work as an accountant was Trak Accounting Services Pty Ltd (the sponsor).
On the 13 July 2020 a notice of intention to consider cancellation (NOICC) was issued.
The applicant provided a response to the notice to the Department that they have always been under the impression that they were working for Trak Accounting Pty Ltd despite the sale of…

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 Rahman (Migration)

Details

AGLC: Rahman (Migration) [2021] AATA 3554
Case: [2021] AATA 3554
Decision Date: 19 August 2021

CaseChat Overview and Summary

This matter concerned an appeal by Ms. Rahman against the cancellation of her subclass 457 (Temporary Work (Skilled)) visa. The visa was cancelled due to a breach of condition 8107, specifically because her employer was not an approved standard business sponsor. Ms. Rahman argued that the circumstances leading to the breach were beyond her control and that she had continued to work in her field and pursue employment opportunities in Australia. The decision was made by the Tribunal.

The Tribunal was required to determine whether the ground for cancellation under s.116(1)(b) of the Migration Act 1958 (Cth) existed, and if so, whether to exercise its discretion to cancel the visa. The Tribunal also considered the applicant's submissions regarding her purpose of stay, her efforts to comply with visa conditions, and the potential hardship cancellation would cause.

The Tribunal found that the ground for cancellation existed but that cancellation was not mandatory. In exercising its discretion, the Tribunal had regard to the applicant's submissions, including her intention to work as a taxation accountant and her efforts to secure permanent residency. Crucially, the Tribunal accepted that the circumstances leading to the breach of condition 8107 were beyond Ms. Rahman's control and that she had made genuine efforts to comply with her visa conditions. The Tribunal also noted that Ms. Rahman had since secured a new sponsorship and visa to continue working as a taxation accountant, demonstrating her ability to secure employment in her chosen field.

The Tribunal concluded that the mitigating circumstances, including the applicant's lack of deliberate non-compliance and the fact that the circumstances were beyond her control, weighed in favour of not cancelling her visa. Consequently, the decision under review was set aside.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Consideration of discretion / conclusions For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1) (b) 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:the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia: The first named applicant did provide extensive submissions to the Tribunal and in her written submissions said as follows: “My purpose of stay in Australia was to work as a taxation accountant. The previous nomination and my 457 visas was in the same occupation. If my subclass 457 (temporary Work Skilled) visa had it not been cancelled on the 30 October 2020, I would continue to work until; October 2022. I would have also gained Permanent residency. As will be evident from the offer letters from Red Dog, Gold Group Consulting and PKF- Business Advisory, I have qualifications and training and I would be able to secure a position in the Accounting and Advisory industry without any difficulty. I respectfully submit that my capability of itself evidences that I could be nominated for the occupation of Taxation Accountant by another sponsor. Therefore, this weighs against cancellation.” The first named applicant felt that she was duped by the sponsor as she felt that she had been dutifully complying with all her conditions of her visa. Since her employment was terminated the applicant has worked in the same field and has now been successful in her application to work in Australia. Her pending application has been approved and she is able to remain in Australia to continue to work as an accountant. The first named applicant provided confirmation to the Tribunal that on the 4 August 2021 the Department approved her sponsorship for a Visa to work for SMPR Australia Pty Ltd as a taxation accountant in NSW. She stated that the circumstances in which the ground of cancellation arose was beyond her control. The Tribunal accepts the first named applicant’s explanations and weighs the fact that the circumstances that arose were beyond her control in favour of the first named applicant’s case not to cancel her visa.the extent of compliance with visa conditions: The applicant has to the best of her ability tried to comply with her visa conditions whilst in Australia. She did reply to her NOICC and has always complied with the demands of the Department. There is no evidence that the first named applicant has deliberately not complied with her visa conditions. Although it was found that she did not comply and breached condition 8107 of their Temporary Work Skilled visa the information supplied suggests that there are mitigating circumstances because the applicant was ignorant that she was breaching the condition even though she was aware that the business had been sold.degree of hardship that may be caused (financial, psychological, emotional or other hardship):