Sachdeva (Migration) - [2018] AATA 5852

Sachdeva (Migration) [2018] AATA 5852 (20 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Hardeep Singh Sachdeva
CASE NUMBER:  1700907
HOME AFFAIRS REFERENCE(S):           BCC2016/3296400
MEMBER:Bridget Cullen
DATE:20 December 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

Statement made on 20 December 2018 at 2:47pm

CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Café or Restaurant Manager – employment terminated – sponsor sold business – circumstances out of applicant’s control – meaning of ‘genuine effort’ – decision under review set aside

LEGISLATION
Migration Act 1958, s 137
Migration Regulations 1994, r 2.50AA

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 and Border Protection on 13 January 2017 to cancel the applicant's Subclass 187 - Regional Sponsored Migration Scheme visa under s.137Q of the Migration Act 1958 (the Act).
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 he 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.
The applicant appeared by telephone before the Tribunal on 9 August 2018 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
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).
Does the ground for cancellation exist?
Under s.137Q(2) the Minister may cancel the visa if satisfied that the visa holder commenced the employment referred to in the relevant employer nomination (whether or not it was commenced within the period prescribed by r.2.50AA); and the employment terminated within 2 years of the person commencing that employment; and the person does not satisfy the Minister that they made a genuine effort to be engaged in that employment for the required 2 year period.
The applicant has provided to…

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 5852
Decision Date: 20 December 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 187 (Regional Sponsored Migration Scheme) visa of an applicant sponsored to work as a Café or Restaurant Manager. The applicant's employment with NK Haider Pty Ltd, trading as Delhi 6 Indian Cuisine, terminated approximately 18 months after the visa was granted, well within the two-year period stipulated by the legislation. The applicant contended that the termination was due to the sale of the business by the sponsor, a circumstance beyond his control.

The Tribunal was required to determine whether the ground for cancellation under section 137Q of the Migration Act 1958 existed. Specifically, the Tribunal had to assess whether the applicant had made a "genuine effort" to be engaged in the nominated employment for the required two-year period, as required by section 137Q(2)(b). The delegate had cancelled the visa on the basis that the employment terminated within two years of commencement, and the applicant had not satisfied the Minister that they made a genuine effort to remain in that employment.

The Tribunal reasoned that the applicant's obligation under section 137Q(2)(b) was to make a genuine effort to complete the two-year period of employment with the original sponsor, NK Haider Pty Ltd. The applicant argued that his failure to complete this period was due to circumstances outside his control, namely the sale of the sponsoring business. The Tribunal accepted that the sale of the business and subsequent settlement on 30 November 2015, which led to the termination of the applicant's employment, was a situation beyond the applicant's control.

Consequently, the Tribunal was not satisfied that the ground for cancellation under section 137Q existed. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 187 visa.

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).Does the ground for cancellation exist? Under s.137Q(2) the Minister may cancel the visa if satisfied that the visa holder commenced the employment referred to in the relevant employer nomination (whether or not it was commenced within the period prescribed by r.2.50AA); and the employment terminated within 2 years of the person commencing that employment; and the person does not satisfy the Minister that they made a genuine effort to be engaged in that employment for the required 2 year period. 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. The applicant was sponsored to be employed as a Café or Restaurant Manager (ANZSCO 141111) by NK Haider Pty Ltd, trading as Delhi 6 Indian Cuisine in Waterford West located in Queensland. The visa was granted on 15 May 2015, and the applicant worked in the role, for approximately 18 months until his employment was terminated on 30 November 2015. The applicant says that his role with his employer was terminated following the sale of the business by NK Haider Pty Ltd. The delegate’s decision record reflects that on 10 May 2016, the Department received written information that the Delhi 6 Indian Cuisine business operated by NK Haider Pty Ltd was sold, and that the applicant had not been working for the business since 30 November 2015. The delegate’s decision record also reflects that the Delhi 6 Indian Cuisine business was sold on 19 October 2015, and the business name was cancelled the same day. Further, the sale of the business was settled on 30 November 2015. The delegate considered that the applicant did not comply with section 137(Q)(2)(ii) because the employment referred to in the relevant employer nomination with NK Haider Pty Ltd as a full-time Café or Restaurant Manage was terminated within the period prescribed by the regulations of 2-years from the grant of the visa on 15 May 2015. The applicant says that s.137Q(2)(b) does not impose upon him a requirement to find further alternative employment in a designated regional area. Rather, he says that he was obligated to make a genuine effort to complete the two year period with NK Haider Pty Ltd, and that his failure to do so was because of a situation beyond his control.

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 187 - Regional Sponsored Migration Scheme visa.Bridget CullenMember

Ratio Decidendi

Legal Principle Established

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