Shaheen (Migration) - [2022] AATA 108

Shaheen (Migration) [2022] AATA 108 (14 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Dr Zahid Suleman Shaheen
CASE NUMBER:  2107004
HOME AFFAIRS REFERENCE(S):          BCC2021/850786
MEMBER:Jason Pennell
DATE:14 January 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

Statement made on 14 January 2022 at 1.00pm

CATCHWORDS

MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 - Temporary Skill Shortage – risk to the health or safety of an individual – applicant charged with criminal offences – applicant’s employment terminated – offer of employment – court proceeding against the applicant discontinued – cancellation power does not arise – decision under review set aside

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994

CASES

Gong v MIBP [2016] FCCA 561
Tien 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 24 May 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa under s.116 of the Migration Act 1958 (the Act).
2.The delegate cancelled the visa under s.116(1)(e)(ii) on the basis that the presence of the applicant in Australia is a risk to the health or safety of an individual in the Australian community. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
3.The applicant appeared by video hearing before the Tribunal on Thursday 18 November 2021 to give evidence and present arguments. Due to the COVID-19 pandemic, the Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to hold it by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.
4.The Tribunal hearing was conducted without the assistance of an interpreter.
5.The applicant was represented in relation to the review by his Lawyer, Mr Kazmer Joseph Michael Ujvari of Ujvari Lawyers.
6.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

7.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)(e)(ii). 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.
Migration History
8.The applicant is a…

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 Shaheen (Migration)

Details

AGLC: Shaheen (Migration) [2022] AATA 108
Case: [2022] AATA 108
Decision Date: 14 January 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Shaheen, an applicant for a Temporary Skill Shortage (Class GK) visa (subclass 482). The dispute concerned the cancellation of this visa by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The Minister's decision to cancel was based on the applicant's alleged risk to the health or safety of an individual, stemming from criminal charges that had been laid against him.

The primary legal issue before the AAT was whether the grounds for cancellation, as stipulated in the *Migration Act 1958* (Cth), were made out. Specifically, the Tribunal had to determine if the applicant posed a risk to the health or safety of an Australian individual, and if the circumstances surrounding his employment and subsequent criminal proceedings justified the cancellation of his visa.

The Tribunal found that the applicant had been charged with criminal offences, but these proceedings were subsequently discontinued. Furthermore, his employment, which was the basis for his visa, had been terminated. Crucially, the AAT determined that the cancellation power under the relevant section of the *Migration Act* did not arise in these circumstances, as the risk to health or safety was not established given the discontinuation of the criminal proceedings and the termination of employment. Consequently, the AAT set aside the Minister's decision to cancel the visa.

Orders