Sandhu (Migration) - [2019] AATA 2452

Sandhu (Migration) [2019] AATA 2452 (1 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Harminder Singh Sandhu
Mrs Rachhpal Kaur Sandhu
Master Aryaveer Singh Sandhu
CASE NUMBER:  1710951
HOME AFFAIRS REFERENCE(S):           BCC2017/910660
MEMBER:C. Packer
DATE:1 July 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 01 July 2019 at 4:28pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – s 375A certificate – obligation to provide particulars of information – ground for cancellation – ceased to have a genuine intention to perform occupation – Transport Company Manager – Departmental site visit – not working fulltime or at all in the nominated occupation – sham salary arrangement – non-compliance with visa conditions – consideration of discretion – purpose of stay – not performing the tasks of nominated occupation – decline of sponsor’s business – beyond applicant’s control – failure to seek and obtain alternative sponsorship – no formal job offer – best interest of child – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), r 2.43

CASES
BCR16 v MIBP (2017) 248 FCR 456
Burton v MIMIA [2005] FCA 1455
COT15 v MIBP (No 1) (2015) 236 FCR 148
Ibrahim v MHA [2019] FCAFC 89
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 19 May 2017 made by a delegate of the Minister for Immigration and Border Protection 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)(g) on the basis that the applicant has ceased to have a genuine intention to perform that occupation (regulation 2.43(1)(kb)(ii)). 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 other applicants’ visas were 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 those other visas 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 them.
The applicants appeared before the Tribunal by videolink on 18…

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 Sandhu (Migration)

Details

AGLC: Sandhu (Migration) [2019] AATA 2452
Case: [2019] AATA 2452
Decision Date: 1 July 2019

CaseChat Overview and Summary

The applicant, Mr. Sandhu, sought judicial review of the decision by the Minister for Immigration and Border Protection to cancel his Temporary Business Entry (Class UC) visa, subclass 457 (Temporary Work (Skilled)). The Minister's decision was based on the applicant's alleged failure to genuinely intend to perform the nominated occupation of Transport Company Manager and his non-compliance with visa conditions, as evidenced by a departmental site visit indicating he was not working full-time or at all in that role and a sham salary arrangement. The applicant contended that the cancellation was unlawful and that the Minister failed to properly consider relevant factors, including the best interests of his child.

The primary legal issues before the court were whether the Minister had valid grounds to cancel the applicant's visa under the Migration Act 1958 (Cth), specifically concerning the genuine intention to perform the nominated occupation and compliance with visa conditions. The court was also required to determine whether the Minister had properly exercised the discretion to cancel the visa, taking into account all relevant considerations, including the applicant's personal circumstances and the best interests of his child.

Justice Packer found that the evidence supported the Minister's conclusion that the applicant did not have a genuine intention to perform the nominated occupation and had failed to comply with his visa conditions. The court reasoned that the departmental site visit and the evidence of a sham salary arrangement were compelling indicators of non-compliance. Furthermore, the court held that the Minister had adequately considered the applicant's submissions regarding the decline of the sponsor's business and the best interests of his child, but these factors did not outweigh the serious breaches of visa conditions. The court affirmed the Minister's decision to cancel the visa.

Orders