SONI (Migration) - [2017] AATA 764

SONI (Migration) [2017] AATA 764 (16 May 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Chirag Indravadanbhai Soni
Mrs Hetal Jayant Vajani
CASE NUMBER:  1617163
DIBP REFERENCE(S):  BCC2016/2905338
MEMBER:Katie Malyon
DATE:16 May 2017
PLACE OF DECISION:  Sydney
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 second named applicant.

Statement made on 16 May 2017 at 1:00 pm
CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Applicant ceased sponsored employment over 90 days – Unfair dismissal claims against new business owner – New employer without sponsorship nomination – Nomination application refused for new employer – New child born
LEGISLATION
Migration Act 1958, ss 116, 140, 348
Migration Regulation 1994, Schedule 2, cl 457.223(4)(a), Condition 8107
CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80
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

This is an application for review of a decision dated 13 October 2016 made by a delegate of the Minister for Immigration to cancel the Subclass 457 (Temporary Work (Skilled)) visa (Subclass 457 visa) of the first named applicant, Mr Chirag Soni, under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled Mr Soni’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. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. A copy of the delegate’s decision was provided to the Tribunal.
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 Mr Soni. The second named applicant, Mrs Hetal Jayant Vajani, is his wife. Her Subclass 457 visa was automatically cancelled as a consequence of the cancellation of Mr Son’s Subclass 457 visa, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa 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) of the Act, the Tribunal has no jurisdiction with respect to Mrs Vajani.
Mr Soni appeared before the Tribunal on 13 January 2017 to give evidence and present arguments. The Tribunal also received brief oral evidence from Mrs Vajani. During the hearing, the Tribunal endeavoured to take oral evidence from the Managing Director of…

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 SONI (Migration)

Details

AGLC: SONI (Migration) [2017] AATA 764
Case: [2017] AATA 764
Decision Date: 16 May 2017

CaseChat Overview and Summary

This matter concerned an appeal to the Administrative Appeals Tribunal (AAT) by Mr Soni against the Department's decision to cancel his Subclass 457 (Temporary Work (Skilled)) visa. Mr Soni had been granted the visa in May 2013, sponsored by Polly Bar Pty Ltd. After the business was sold to The Roy Pty Ltd, Mr Soni was successfully nominated by the new owner. However, his employment with The Roy ceased in June 2015. Subsequently, Mr Soni secured employment with Krishna Café & Indian Restaurant, but their sponsorship and nomination applications were either refused or withdrawn. The Department issued a notice of intention to cancel Mr Soni's visa on the grounds that he had ceased employment with his most recent sponsor for more than 90 consecutive days, potentially breaching visa condition 8107.

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, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to consider the relevant circumstances, including government policy, in determining whether to affirm the delegate's decision to cancel the visa.

The Tribunal found that the ground for cancellation under section 116(1)(b) of the Act was established, as Mr Soni had ceased employment with his sponsor for more than 90 days without a valid new nomination. The Tribunal then considered its discretion to cancel the visa. It noted that Mr Soni had completed tertiary studies in Australia and had a favourable skill assessment for the occupation of Cook. However, the purpose of his Subclass 457 visa had ended with the termination of his employment with The Roy, and subsequent sponsorship and nomination applications had been withdrawn. Crucially, Mr Soni's visa was due to expire in less than five days at the time of the hearing. The Tribunal concluded that the evidence favouring cancellation outweighed that favouring non-cancellation, and therefore exercised its discretion to affirm the cancellation of Mr Soni's 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 affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEBackground As outlined in the delegate’s decision, a copy of which was provided to the Tribunal, Mr Soni’s Subclass 457 visa was granted on 21 May 2013 for a period of 4 years on the basis of an approved nomination in the occupation of Cafe or Restaurant Manager with his original sponsor Polly Bar Pty Ltd (Polly Bar). After working with Polly Bar for approximately 22 months, the business was sold to The Roy Pty Ltd (The Roy). Mr Soni was successfully nominated by The Roy for the same position. The Roy’s nomination was approved on 27 May 2015. After working with The Roy for 2 months, Mr Soni was asked to leave as there were some issues with the new management. The delegate’s decision notes the Department received notice from The Roy that Mr Soni left the company’s employment on 4 June 2015. Thereafter, Mr Soni secured an offer of employment with GT Soni & Sons Pty Ltd trading as Krishna Café & Indian Restaurant (Krishna). However, although Krishna’s sponsorship application was approved the nomination application was refused and, despite a new nomination application being lodged, it was subsequently withdrawn by Krishna. On 21 September 2016, the Department issued Mr Soni a notice of intention to consider cancellation (NOICC) of his Subclass 457 visa on the basis that he may have breached condition 8107 as more than 90 consecutive days had passed since he ceased employment with The Roy, the sponsor that had most recently nominated him. Mr Soni responded to the NOICC on 6 October 2016. He indicated that he had secured an offer of employment as Cook with Nik’s and, further, both a sponsorship and nomination application had already been lodged. Mr Soni added that, prior to working as a Cafe or Restaurant Manager with Polly Bar and The Roy, he had worked as a Cook for about 4 years with various prestigious hospitality companies in Melbourne including: Delaware North, the major catering company at Etihad Stadium; Create Concept at Flemington; Artistic Catering based in Richmond which catered for events including weddings, conferences and private parties; and, a number of restaurants including Chimmy’s Café and Stone Ground Produce. The delegate proceeded to cancel Mr Soni’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. Relevant law 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. Relevant to this case, these include the ground set out in s.116(1)(b) of the Act. 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.Does the ground for cancellation exist?

Decision

Reasons for decision

Having considered all of the circumstances in this case and the evidence before it, the Tribunal is persuaded that the evidence in favour of cancelling Mr Soni’s Subclass 457 visa outweighs that in favour of not cancelling his visa. For these reasons, the Tribunal concludes it should exercise its discretion to affirm cancellation of Mr Soni’s Subclass 457 visa. 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 second named applicant.Katie MalyonMember

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act exists. As that ground does not require mandatory cancellation under s.116(3) of the Act, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.Consideration of discretion There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel Mr Soni’s visa, the Tribunal has had regard to the relevant circumstances including, but not limited to, matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’. In exercising its power to cancel a visa, the Tribunal should have regard to policy as a relevant consideration. However, policy is not binding on the Tribunal.[1] The overarching principle is that the Tribunal must make an independent assessment of the material before it with a view to reaching the correct or (in the case of the exercise of a discretionary power, as in this matter) the preferable decision.[2]The purpose of the visa holder’s travel to and stay in Australia[1] Re Drake v MIEA (No 2) (1979) 2 ALD 634; Qiao v MIAC [2008] FMCA 380 [2] See Hneidi v MIAC [2010] FCAFC 20 (Spender, Emmett and Jaocobson JJ) at [34] Mr Soni told the Tribunal that he originally came to Australia from India in September 2007 to study. He has completed a Diploma in Commercial Cookery and then an Advanced Diploma of Hospitality at Meridian International Hotel School in Melbourne. Mr Soni said he has been working for more than 8½ years in a range of restaurants and catering facilities consistent with the conditions attached to his Student Subclass 572 visas. The Tribunal notes that, following completion of his tertiary studies in Australia, Mr Soni has provided a favourable skill assessment from Trades Recognition Australia dated 9 February 2009 for his occupation of Cook ASCO 4513-11. Subsequently, he was sponsored on a Subclass 457 visa by Polly Bar and then The Roy for a period of 4 years expiring 21 May 2017. The Tribunal notes that the purpose of a Subclass 457 visa is for holders of that visa to work for an approved sponsor in an approved nominated occupation. Since Mr Soni’s employment with his sponsor The Roy was terminated sometime before July 2015 the purpose of his Subclass 457 visa has come to an end. Two nominations by approved sponsor Krishna were lodged: however, one was refused and a subsequent application was withdrawn. Furthermore, although a sponsorship and nomination application were lodged with the Department by Nik’s in October 2016, Mr Soni advised the Tribunal in writing on 1 May 2017 that both applications have been withdrawn. He confirmed this in evidence to the Tribunal on 16 May 2017. The Tribunal has established Nik’s applications were withdrawn on 7 February 2017. Significantly, Mr Soni’s Subclass 457 visa would have expired on 21 May 2017, that is, in less than 5 days. He told the Tribunal states that he and his family have moved from Sydney to Adelaide because there are genuine employers there willing to sponsor him, including under the Regional Skill Migration Scheme (RSMS) for permanent residence. However, he confirmed no new nomination application has been lodged.