Thanaletchumy (Migration) - [2022] AATA 2306

Thanaletchumy (Migration) [2022] AATA 2306 (7 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Kanniah Thanaletchumy
Ms Manimala Maniam
CASE NUMBER:  2103411
HOME AFFAIRS REFERENCE(S):          BCC2020/2234762
MEMBER:Michael Cooke
DATE:7 June 2022
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 07 June 2022 at 12:32pm
CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – consideration of discretion – failure to secure alternate employment – COVID-19 pandemic – victim of unscrupulous work practices – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
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 12 March 2021 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 (the Act).
The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant breached condition 8107(3)(b). The basis for the cancellation of the other applicant’s visa was a consequential cancellation under section 140 of the Act: 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 second named applicant’s visa was 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 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), the Tribunal has no jurisdiction with respect to the second named applicant.
The Tribunal sent the applicant an Invitation pursuant to s.359(2) of the Act as follows:
INVITATION TO PROVIDE INFORMATION – MS KANNIAH THANALETCHUMY AND MS MANIMALA MANIAM
I am writing on instruction from the Member conducting your review, in relation to the applications for review made by you in respect of decisions to cancel Subclass 457 (Temporary Work (Skilled)) visas.
You are invited to provide the following information in writing:
· Your employment status.
· Whether or not you have a new or potential sponsor.
The applicant responded to the Invitation on 16 November 2021…

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 Thanaletchumy (Migration)

Details

AGLC: Thanaletchumy (Migration) [2022] AATA 2306
Case: [2022] AATA 2306
Decision Date: 7 June 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal (the Tribunal) considered the case of Thanaletchumy, who sought review of a decision to cancel her Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The cancellation was based on the ground that Ms. Thanaletchumy had ceased employment with her sponsor.

The primary legal issue before the Tribunal was whether to exercise its discretion to set aside the cancellation decision. This required the Tribunal to consider various factors, including the purpose of Ms. Thanaletchumy's stay in Australia, her compliance with visa conditions, and the degree of hardship that might be caused by the cancellation. The Tribunal was also guided by the Department's Procedures Advice Manual.

The Tribunal reasoned that Ms. Thanaletchumy had failed to comply with visa condition 8107 by ceasing employment with her sponsor for more than 60 consecutive days without an approved nomination. While acknowledging her stated intention to support her daughter studying in Australia and the hardship this might entail, the Tribunal noted the lack of evidence demonstrating efforts to secure alternative employment. The Tribunal gave significant weight to the fact that Ms. Thanaletchumy had previously returned to work with her sponsor, only for that employment to subsequently cease, and found this weighed in favour of cancellation.

The Tribunal affirmed the decision to cancel Ms. Thanaletchumy'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

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.Consideration of any relevant factors, including matters raised by the applicant and the Departmental guidelines which cover matters such as:·the purpose of the applicant’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia. The applicant was granted the Temporary Work (Skilled) (Subclass 457) visa on 11 September 2018 for the purpose of undertaking employment in the nominated occupation with the approved sponsor. The sponsor subsequently notified the Department that the applicant ceased employment with them on 1 August 2020. The applicant confirmed she has not worked since this date for the sponsor and her last payslip was received on 5 August 2020. As such, the applicant has not had a new approved nomination in place and has not worked in the nominated occupation for a period exceeding 60 consecutive days. In response to the NOICC, the applicant stated that she has a dependent daughter studying in Australia. She stated that she needs to get a job so she can support her daughter with tuition fees and cost of living. Whilst the Tribunal acknowledges the applicant’s intention to work, she has not provided any evidence of her attempting to seek and secure new employment with an approved sponsor despite the ample opportunity presented to her by the Tribunal at the hearing. It is apparent that the applicant’s original purpose in Australia was to work in her nominated occupation. The evidence discloses that she has done so with an approved sponsor. Since officially ceasing employment she informed in oral evidence that she returned to work with her sponsor, but this employment has also subsequently ceased. The Tribunal gives this consideration significant weight in favour of cancelling the visa.·the extent of compliance with visa conditions The applicant has not complied with condition 8107 of her Temporary Work (Skilled) visa by ceasing employment with the sponsor for more than 60 consecutive days. The applicant has not had an approved nomination since her employment ceased with the sponsor on 1 August 2020. Apart from this issue the Tribunal is not aware of any other non-compliance with visa conditions. The Tribunal give this consideration minimal weight against cancellation.·degree of hardship that may be caused (financial, psychological, emotional or other hardship) The applicant has expressed concern that she is currently facing various hardships as a result of her unemployment circumstances. She has specifically indicated that her daughter is currently undertaking studies and is “financially and emotionally dependent” and that she must “get a job to support her tuition fees and cost of living”. She has reiterated this belief in oral evidence at the hearing. It is apparent that the applicant has already faced the hardship of cancellation of her visa along with her daughter and she has claimed she would suffer further emotional, financial and/or other hardship as a result of any affirmation of the cancellation.