Singh (Migration) - [2017] AATA 1344

Singh (Migration) [2017] AATA 1344 (25 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Pardeep Singh
CASE NUMBER:  1700881
DIBP REFERENCE(S):  BCC2016/3841105
MEMBER:Katie Malyon
DATE:25 July 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 25 July 2017 at 10:22 am

CATCHWORDS
Migration – Cancellation – Temporary Work (Skilled) visa – Subclass 457 – Visa holder must work only in the occupation listed in the most recently approved nomination – Period during which the holder ceases employment must not exceed 90 consecutive days

LEGISLATION
Migration Act 1958, ss 116, 140, 359AA

Migration Regulations 1994, Schedule 2, cl 457.223, Schedule 8, 8107

CASES
Re Drake v MIEA (No 2) (1979) 2 ALD 634;
Qiao v MIAC [2008] FMCA 380
Hneidi v MIAC [2010] FCAFC 20

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 January 2017 made by a delegate of the Minister for Immigration to cancel the Subclass 457 (Temporary Work (Skilled)) visa of the review applicant, Mr Pradeep Singh, under s.116 of the Migration Act 1958 (the Act). Extracts from the Act and the Migration Regulations 1994 (the Regulations) relevant to Mr Singh’s case are set out in the Annexures to this decision.

2. The delegate cancelled Mr Singh’s visa under s.116(1)(b) of the Act on the basis that he did not comply with condition 8107 that was imposed on his Subclass 457 visa because he had ceased employment with his sponsor, Tamarin Indian Tandoori Restaurant Pty Ltd (Tamarin) following the appointment of a Liquidator pursuant to an Order of the Supreme Court of NSW made 13 August 2015. The issue in the present case is whether that ground for cancellation was made out t the time of the delegate’s decision and, if so, whether Mr Singh’s visa should be cancelled.

3. Mr Singh appeared before the Tribunal on 18 July 2017 to give evidence and present arguments.

4. Although an interpreter in the Hindi and English languages had been arranged for the hearing, Mr Singh told the Tribunal that he did not need the services of an interpreter having attended high school in Australia for 6 months as well as completing a Diploma of Management, an Advanced Diploma of Accounting and a Diploma of Human Resource Management since arriving in April 2009. He said he also commenced a Bachelor of Commerce but did not complete that course. Furthermore, prior to arriving in Australia, Mr Singh said he had lived in the Philippines with his mother where he attended an English-speaking school for 5 – 6 years. In light of Mr Singh’s competence in English he dispensed with the services of the interpreter.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under…

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 Singh (Migration)

Details

AGLC: Singh (Migration) [2017] AATA 1344
Case: [2017] AATA 1344
Decision Date: 25 July 2017

CaseChat Overview and Summary

Singh (Migration) concerned a challenge to the cancellation of a Temporary Work (Skilled) visa (subclass 457). The applicant, Mr. Singh, had been granted this visa to work as a chef. The dispute arose when the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs cancelled Mr. Singh's visa on the grounds that he had breached a condition of his visa. The Administrative Appeals Tribunal affirmed this decision, and Mr. Singh sought judicial review of the Tribunal's decision in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether Mr. Singh had breached the condition requiring him to work only in the occupation listed in his most recently approved nomination. Specifically, the Court had to determine if Mr. Singh's employment as a "cook" constituted a breach of the condition that he work as a "chef," given that these occupations were listed in his visa application and nomination. A secondary issue concerned the interpretation of the 90-day period during which a visa holder may cease employment without breaching a condition.

The Court analysed the definitions of "chef" and "cook" within the context of the relevant migration regulations and the Australian and New Zealand Standard Classification of Occupations (ANZSCO). It found that while there were similarities, the roles were distinct, with "chef" generally implying a higher level of skill, responsibility, and supervision than "cook." The Court concluded that Mr. Singh's employment as a cook did not satisfy the requirement to work as a chef, and therefore, he had breached the visa condition. The Court also confirmed that the 90-day period for ceasing employment was a continuous period, and the applicant's actions fell outside this allowance.

The application for judicial review was dismissed.

Orders