1506835 (Migration)

1506835 (Migration) [2015] AATA 3266 (12 August 2015)
DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Hardeep Singh Dhaliwal
CASE NUMBER:  1506835
DIBP REFERENCE(S):  BCC2015/728116
MEMBER:Karen Synon
DATE:12 August 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled) visa.

Statement made on 12 August 2015 at 8:12am
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 7 May 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s 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)(a) on the basis that the dependent 457 visa holder was no longer in a spousal or de facto relationship with the primary 457 visa holder. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant applied for review of the delegate decision on 19 May 2015 and provided a copy of the department’s decision to the Tribunal.
The applicant appeared before the Tribunal on 6 August 2015 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent but he did not attend the hearing.
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
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)(a). 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)(a) if the Minister or the Tribunal is satisfied that the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or no longer exists. Although considering a differently worded version of s.116(1)(a), the reasoning of the Full Federal Court in MIMA v Zhang (1999) 84 FCR 258 provides some guidance. The relevant fact or circumstance that no longer exists is the subject of the ministerial reflection and does not extend to the Minister’s own state of mind, i.e. satisfaction (per French and North JJ at [54]).
The primary decision records that the primary 457 visa holder, Ms Rupinder Hans, contacted the department on 9 April 2015 and advised that her relationship with the applicant had broken down.
The primary decision, a copy of which was provided to the Tribunal states that the following relevant response was received to the department’s Notice of Intention to Consider Cancellation:
Primary applicant did called the DIAC and inform relationship is not going ahead, this is not one partner decision need to make, but both partners need to decide and apply for the separation and subsequently apply for divorce. If family court gives the verdict for decision then Sec applicant is subject to 11(1)(a) (sic). In this situation either they are separated or divorce. Is very common both partners fight on each other and get together later on. There is no change in circumstance at the moment. They are legally married a relationship is ongoing at the moment. As both are very young couples, kindly request you not cancelled their visa.
Request you not to cancel the secondary applicant, and let him to get in touch with spouse to sort out his dispute.
The applicant was granted a 457 dependent visa on the basis of cl.457.321 which states:
The applicant is a member of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.
Section 5(1) of the Migration Act provides that ‘member of the family unit’ of a person, has the meaning given by regulation 1.12 and regulation 1.03 which relevantly states:
1.12] (1) For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7),a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:
(a) a spouse or de facto partner of the family head; or
(b) a dependent child of the family head or of a spouse or de facto partner or of the family head; or
(c) a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or…
(e) a relative of the family head or of a spouse or de facto partner of the family head who:
(i) does not have a spouse or de facto partner; and
(ii) is usually resident in the family head's household; and
(iii) is dependent on the family head.
…
Spouse has the meaning given to it by s.5F of the Act which states:
5F] (1) For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
[5F] (2) For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
At the hearing the applicant said that he is met his wife in Australia in September 2012 and they married in Australia on 19 January 2013. They separated in March 2015 and ceased living together in April 2015. He said neither party had filed for divorce. He said the separation was due to family pressure on his wife because there are religious and cast issues in their relationship. He said his wife had not told him the relationship had ended when she contacted the Department and informed it that the relationship had broken down. He said he only found out when immigration phoned him.
The Tribunal discussed with the applicant that the definition of a spouse includes not only that two people are legally married but that they also have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal explained that mutual means they both need to be genuinely committed to the relationship to the exclusion of all others and the relationship must be genuine and continuing. The applicant said his wife had listened to her parents and his parents were now trying to convince her parents, who live in a village about 25 to 30 km from his family. The applicant said he needs more time because everyone has problems in life and he needs extra time to fix the relationship. He said it is now only August and his wife notified the Department in April and he and his parents are trying to solve the problem. The applicant said he is not in agreement that they are separated and while he understands what the Tribunal and the Department are saying he just needs more time to get his wife back. The applicant asked the Tribunal not to cancel his visa because his wife has been listening to her parents talk about the traditions there. He is a Sikh and she is Hindu and this religion and cast is the main problem they have. They had only little problems in relation to living together. While his parents did not want him to marry when he told them of his feelings, they said okay.
While the Tribunal accepts that the applicant genuinely wants further time to try and reconcile with his wife, his evidence was that they had separated in March 2015 and have been living separately since May 2015. The applicant also told the Tribunal that he has had no contact with his wife for 2 months and that she does not respond to his phone calls.
The Tribunal is therefore satisfied that the applicant is no longer in a spousal relationship with the primary 457 visa holder because they do not have a mutual commitment to a shared life as husband and wife to the exclusion of all others. Therefore the Tribunal finds that the decision to grant the applicant a 457 dependent visa was based wholly on his spousal relationship with the primary visa holder; a circumstance that is no longer the case.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(a) exists. As that ground does not require mandatory cancellation under s.116(3), 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 the applicant’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’.
The purpose of the visa holder's travel to and stay in Australia
The applicant’s evidence was and the Tribunal accepts that he originally came to Australia to study on a student visa. His evidence was that he was granted 2 student visas and completed: a Certificate IV in Automotive, a Diploma of Automotive, a Diploma of Management and an Advanced Diploma of Management. After 2010 he was hoping to stay in Australia permanently and his parents thought that in the future he would settle here. Following his marriage he stayed in Australia to support and help his wife because it is normal for a husband and wife to stay together.
The Tribunal finds that this purpose no longer exists as the relationship has broken down. Whilst the applicant may have hoped to stay in Australia indefinitely, he has only ever held temporary visas in Australia. The Tribunal finds that holding temporary visas creates no expectation that the applicant would be able to remain in Australia on a permanent basis.
Degree of hardship that may be caused to the visa holder and family members
The applicant said that it would not be too hard for him to go back to India but it will hurt him if his wife says no (to reconciliation). He would be happy to live with his wife either in Australia or India. He said his return to India would cause pain for his parents because every parent wants their child to have a good future and they have hope for him that he will settle here. He said his parents are not rich and to send him here they had to get study loans that have been constantly refinanced. If he goes back his parents will say they told him and he didn’t listen. His parents will say that what happened is because of him and will blame him. The applicant said he is alone and has no family or relatives here. His mother, father, grandparents, aunt and uncle live in India. He is an only child.
The Tribunal accepts that should the applicant have to depart Australia that it is likely this will end his hopes of reconciliation with his wife. The Tribunal also accepts that his parents may be disappointed in him and may blame him for not taking their advice in relation to the marriage. The Tribunal also accepts that his parents have taken out loans to finance his study in Australia. As a result of these factors the Tribunal accepts that leaving Australia may therefore may involve some hardship to the applicant principally on an emotional level. The Tribunal does not accept, however, that this hardship would be significant and notes the applicant’s evidence that it would be not too hard for him to go back to India. On the basis of the evidence before it, the Tribunal does not accept that cancelling the visa would cause significant hardship to the applicant.
The circumstances in which the ground for cancellation arose
As recorded in the primary decision the cancellation arose because the applicant's wife informed the department on 5 March 2015 that their relationship had broken down. While the applicant repeatedly stated at the hearing that both he and his parents in India were trying to work out his relationship problems with his wife and “get her back”, he also confirmed that they separated in March 2015.
Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation
The applicant’s visa was cancelled on 7 May 2015 and since then he has been on a Bridging E visa. The Tribunal does not have any evidence before it that cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation.
Whether there would be consequential cancellations under s.140
The applicant does not have children or dependents. This consideration is not relevant.
Any other relevant matters raised by the visa holder
The applicant consistently and, the Tribunal believes genuinely, stated that his purpose in attending the hearing was to ask for more time to fix the relationship. He said he has no evidence; he just wants more time. The applicant said that both he and his parents were working on this and that every relationship has problems and their relationship broke down due to pressure from his wife’s parents. He just needs more time to convince her and get back with her and they have only been separated for 4-5 months. He asked the Tribunal not to cancel his visa and said marriage is a big thing for life. Upon questioning by the Tribunal the applicant said that the last time he spoke to his wife was 2 months ago and she would not respond to his phone calls.
The applicant also said that since he completed his study he did not get good guardians and no one told him the truth or good advice; not agents, not immigration. The applicant said he is alone in Australia and stressed. He sometimes forgets things and has not been courteous to his family when they have phoned. He said this is not a good way for a 27 year old to live.
As the Tribunal has found that the ground for cancellation exists, it must now decide whether the visa should be cancelled, having regard to all the relevant circumstances.
The Tribunal has considered and weighed all the relevant circumstances of the case. The Tribunal has considered the fact that the applicant's relationship with his wife has ended however notes he wishes to remain in Australia longer to try and reconcile and that he wants the Tribunal to give him more time to ‘get his wife back’ try. As the applicant’s own evidence is that he and his wife separated in March 2015, that she has not spoken to him for two months and does not respond to his telephone calls, the Tribunal will not delay making a decision on this case. The Tribunal explained this to the applicant at the hearing. While the Tribunal has considered that the applicant has been co-operative with the Department and does not appear to have breached any visa conditions, it places significant weight on his evidence that it would not create hardship for him to return to India other than the disappointment his parents may feel that he was not able to settle in Australia and the blame they may attribute to him for his relationship breakdown. The Tribunal is satisfied that these considerations are outweighed by the following factors: the original purpose of the applicant's travel to and stay in Australia no longer exists and the absence of any significant hardship the cancellation would cause to the applicant. As the applicant is no longer in a spousal relationship with his wife where there is a mutual commitment to a shared life together as husband and wife to the exclusion of all others, the Tribunal, having regard to the findings above in the circumstances of this case as a whole, is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. The Tribunal therefore finds that cancelling the applicant’s visa is the correct and preferable action.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Karen Synon

Member

[2015] AATA 3266

12 August 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction