Wang (Migration) - [2021] AATA 2335

Wang (Migration) [2021] AATA 2335 (18 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Jing Wang
Mr Qingwei Liu
Miss Haoyu Liu
Master Haoyu Wang
CASE NUMBER:  2014292
HOME AFFAIRS REFERENCE(S):          BCC2020/1612313
MEMBER:Vanessa Plain
DATE:18 June 2021
PLACE OF DECISION:  Melbourne
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 18 June 2021 at 12:31pm
CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – applicant did not work only in the occupation listed in the most recently approved nomination – position performed at a lower-skilled level – applicant not present during site visit – decision under review set aside
LEGISLATION
Migration Act 1958, ss 116, 140, 348
Migration Regulations 1994, Schedule 2 cl 457.223; 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 18 September 2020 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)(a)(i) on the basis that the applicant did not work only in the occupation listed in the most recently approved nomination. 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.
The applicants appeared before the Tribunal on 18 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr David Fan, the owner of the applicant’s former employer Golden DD Catering Pty Ltd.
The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the…

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 Wang (Migration)

Details

AGLC: Wang (Migration) [2021] AATA 2335
Case: [2021] AATA 2335
Decision Date: 18 June 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The Minister had sought to cancel the visa under section 116(1)(b) of the Migration Act 1958 (Cth), on the basis that the applicant had allegedly failed to comply with a condition of their visa. The specific condition in question was 8107(3)(a)(i), which requires the holder of a Subclass 457 visa to work only in the occupation listed in the most recently approved nomination.

The legal issue before the Tribunal was whether the applicant had complied with visa condition 8107(3)(a)(i). The delegate's decision to cancel the visa was based on information gathered during a site visit, which suggested that the applicant was performing duties more aligned with a lower-skilled role, such as a waitress with minor supervisory duties, rather than the nominated occupation of Cafe or Restaurant Manager. This led to the conclusion that a significant majority of the applicant's tasks were inconsistent with the nominated occupation, thereby breaching the visa condition.

The Tribunal reasoned that for the ground of cancellation under section 116(1)(b) to be established, the delegate must be satisfied that the applicant did not comply with a visa condition. In this instance, the delegate's satisfaction was based on observations made during a site visit, which indicated that the applicant's actual duties differed substantially from those of a Cafe or Restaurant Manager. However, the Tribunal found that it was not satisfied that the ground for cancellation existed. Consequently, the power to cancel the applicant's visa did not arise.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 457 visa. The Tribunal noted that it had no jurisdiction with respect to 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

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set asideCONSIDERATION OF CLAIMS AND EVIDENCE 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)(b). 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? A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 attached to the applicant’s visa. The Delegate’s decision record contends that the applicant has not complied with subclause (3)(a)(i) of condition 8107 attached to their subclass 457 (Temporary Work (Skilled)) visa, which states:“8107(3) If the visa is, or the last substantive visa held by the applicant was, a subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4) (as in force before 18 March 2018):(a)the holder:(i) must work only in the occupation listed in the most recently approved nomination for the holder; and The Delegate’s decision record of 18 September 2020 provides as follows:“The standard business sponsor who nominated the visa holder in the most recently approved nomination for the visa is GOLDEN DD CATERING PTY LTD (the sponsor), who applied to nominate the visa holder to work at 1 View Point, Bendigo in the occupation of Cafe or Restaurant Manager (ANSCO 141111). The sponsor certified that the tasks or duties of the nominated position included a significant majority of the tasks of the nominated occupation as specified in ANZSCO or the legislative instrument. Specifically, the sponsor certified that the tasks or duties of the position would include:  Planning, directing, controlling and coordinating of the restaurant, in-room dining and conferencing operations  Rostering and recruitment of Team Members  Ensuring excellence and consistency in guest service  Ensuring your team delivers a fantastic guest experience through your commitment to developing innovative products and service  Arranging the purchasing and pricing of goods according to budget  Maintaining records of stock levels and financial transactions  Beverage and wage cost control etc The tasks or duties associated with the occupation of Cafe or Restaurant Manager are specified in ANZCO. They include:  Planning menus in consultation with Chefs  Planning and organising special functions  Arranging the purchasing and pricing of goods according to budget  Maintaining records of stock levels and financial transactions  Ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance  Conferring with customers to assess their satisfaction with meals and service  Selecting, training and supervising waiting and kitchen staff  May take reservations, greet guests and assist in taking orders The delegate assessing the application determined the tasks associated with the position were appropriate tasks commensurate with the occupation of Cafe or Restaurant Manager and approved the nomination on 23 April 2018.On 23 October 2019, a delegated officer from the Sponsor Monitoring Unit (SMU) of the Department attended the sponsor's worksite, interviewed employees and observed the business. They observed that the restaurant had more than one manager and noted due to the nature of the business, you were unlikely to complete the functions of a manager at their full capacity, and those which were being performed were occasional in matter.Therefore, they determined that the position you perform is a lower -skilled role than that of restaurant manager and is more closely aligned to that of a waitress, with minor supervisory duties. Based on this information, it appears that a significant majority of the tasks of the visa holder’s position are inconsistent with those specified for the nominated occupation of Cafe or Restaurant Manager. It appears that a significant majority of the visa holder’s tasks involve primarily general duties in like with a front of house waitress role, such as order taking, delivery of drinks and general tasks outside of the scope of the nominated role. This appears to indicate that the visa holder has not complied with subclause (3)(a)(I) of condition 8107 attached to the visa because it appears the visa holder has not been working in the occupation listed in their most recently approved nomination. As such, there appears to be grounds for cancelling the visa under s116(1)(b) of the Act because it appears the visa holder has not complied with a condition of the visa.”

Decision

Reasons for decision

For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(b) exists. It follows that the power to cancel the applicant’s visa does not arise. 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.Vanessa PlainMember

Ratio Decidendi

Legal Principle Established

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