Rinku (Migration)

[2022] AATA 140

Rinku (Migration) [2022] AATA 140 (18 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rinku Rinku
Mrs Babli Devi

CASE NUMBER:  1907677

HOME AFFAIRS REFERENCE(S):          BCC2019/90464

MEMBER:Danielle Galvin

DATE:18 January 2022

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 457 (Temporary Work (Skilled)) visa.

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 18 January 2022 at 2:20pm

CATCHWORDS

MIGRATION – cancellation – UC - Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – nominator’s standard business sponsor approval cancelled – sponsorship approval set aside upon review – cancellation power does not arise – decision under review set aside

LEGISLATION

Migration Act 1958, ss 116, 140, 348, 360
Migration Regulations 1994, r 2.43

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

1. This is an application for review of a decision dated 29 March 2019 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 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(g) of the Act. The delegate made the decision on the basis that the standard business sponsor, who nominated the visa holder in the most recently approved nomination for the visa, City Taxi Care Pty Ltd (the sponsor), had its approval to act as a standard business sponsor cancelled on 29 August 2018 under s.140M(1)(a) of the Act and under s.140M(2) was barred from making future applications for approval to act as a standard business sponsor for 4 years by the Department. The consequence for the applicant was that the delegate in this matter found that there was a ground to cancel the applicant’s visa under s.116(1)(g) of the Act. The delegate also found that there was no new nomination approved in relation to another sponsor and there was no legitimate reason for the applicant to retain his current subclass 457 visa. The secondary visa applicant ‘s visa was similarly cancelled as they had held that visa on the basis that they were a member of the family unit of the holder of a subclass 457 visa and the consequence of the applicant’s visa cancellation meant that this was no longer the case.

3. 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

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. 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(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?

   s 116(1)(g) - prescribed ground

6. 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.

7. 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.

8. The sponsor had sought a review of the Department’s decision in relation to the them and on 6 July 2021 the Tribunal set aside the Department’s decision and substituted a decision not to take one or more of the actions specified in s.140M of the Act. The consequence for the applicant is that the basis for the cancellation of the visa is no longer a basis for doing so.

9. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

10. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s 116(g) exists. It follows that the power to cancel the applicant’s visa does not arise.

11. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    DECISION

12. 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.

13. The Tribunal has no jurisdiction with respect to the second named applicant.

    Danielle Galvin
    Member