Singh (Migration) - [2022] AATA 4763

Singh (Migration) [2022] AATA 4763 (12 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Pervinder Singh
Mrs Mandeep Kiran
Miss Arpita Singh
Miss Ayesha Singh
Miss Alina Singh
REPRESENTATIVE:  Mrs Natalia Paliy
CASE NUMBER:  2207870
HOME AFFAIRS REFERENCE(S):          BCC2018/4084454
MEMBER:Noelle Hossen
DATE:12 October 2022
PLACE OF DECISION:  Perth
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 other applicants.

Statement made on 12 October 2022 at 3:47pm
CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Federal Circuit and Family Court remittal – ground for cancellation – non-commencement of employment – ABF investigation – payslips – notice of assessment – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107
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

This is an application for review of a decision dated 7 December 2018 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).
The delegate cancelled the visa under s 116(1)(b) on the basis that the first named applicant has not complied with condition 8107(3)(aa)(I) of condition 8107( attached to his visa) which states in part that” if the holder was in Australia when the visa was granted commence work within 90 days after the holders Visa was granted.” 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.
On the 26 May 2022 the Federal Circuit Court and Family Court of Australia (Division 2) At Melbourne ordered as follows:
1)A writ in the nature of Certiorari issue directed to the second respondent quashing its decision dated 1 February 2019 (AAT case number 1900538).
2)A writ of mandamus issue directed to the second respondent requiring it to determine according 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.

Continue reading Singh (Migration)

Details

AGLC: Singh (Migration) [2022] AATA 4763
Case: [2022] AATA 4763
Decision Date: 12 October 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa held by the first applicant, Mr. Singh. The Australian Border Force (ABF) had initiated the cancellation process based on allegations that Mr. Singh had not commenced employment as stipulated by the visa conditions. The matter was before the Tribunal following a remittal from the Federal Circuit and Family Court of Australia.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the *Migration Act 1958* (Cth) was established. This section pertains to circumstances where a visa holder has not complied with a condition of their visa. The Tribunal was required to determine if the evidence presented, including payslips and a notice of assessment, sufficiently demonstrated that Mr. Singh had failed to commence his employment.

The Tribunal found that the evidence did not satisfy it that the ground for cancellation under section 116(1)(b) was made out. As this ground did not mandate cancellation under section 116(3), the Tribunal then considered whether it should exercise its discretion to cancel the visa. Ultimately, the Tribunal set aside the ABF's decision to cancel Mr. Singh's visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning any other applicants.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For these reasons, the Tribunal is not satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.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 other applicants.Noelle HossenMember

Ratio Decidendi

Legal Principle Established

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