1506913 (Migration)

[2016] AATA 3796

1506913 (Migration) [2016] AATA 3796 (26 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurwinder Singh

CASE NUMBER:  1506913

DIBP REFERENCE(S):  BCC 2015/120882 BCC2015/1208825

MEMBER:Stuart Webb

DATE:26 April 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 26 April 2016 at 9:42am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 May 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(a) on the basis that the applicant was a dependent on his wife’s visa, and the Department had received information that the applicant was separated from his wife. As he was no longer a dependent, he could not rely on his wife to remain in Australia. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 22 April 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant provided a copy of the delegate’s decision to the Tribunal.

4. 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

5. 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?

   s.116(1)(a) - Fact or Circumstance for visa grant no longer exists

6. 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, ie satisfaction (per French and North JJ at [54]).

7. The applicant provided a submission to the Department. This stated:

   My name is Gurwinder singh and last Friday I received an email form immigration department in which they mention;

   "Notice of intention to consider cancellation of Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa under section s116 (General Power) of the Migration Act 1958"

   It appears that you are no longer a member of Ms Kirandeep Kaur's family unit.

   So for above statement I am little bit confused that why I am not count as a family member of my wife (Kirandeep Kaur) I have strong evidence that our relationship is quite well.

   I came in Australia on dependent visa and my wife is main applicant(kirandeep kaur) I agree last from couple of months my wife is living with her relatives because when we arrived in Brisbane first time on December 2013, there is no any kind of issues between us but later when her university classes were started and due to homesickness, she was start being stressed and she was unable to handle the study load so i think here the problems was started, between both of us I always tried to help and encourage her but our relationship was not improving ,so she decided to move in Melbourne in her relatives house for a change.

   but the thing is we are continuously in contact with each other and on daily bases we met and have dinner together. Moreover, financially I am still supporting her lot of time I gave her cash for living expenses and just recently I transfer some money in her account, the image of this transfer statement I am attaching with this email. and I can also provide you the call records which can proof that we are talking with each other on daily bases, so I already requested to my phone provided for my call history statement which I will forward to you when I will receive from them.

   I agreed that our marriage life is not going well. but we are making all efforts to improve it. The main thing there is no legal document which shows that we applied for divorce it mean we want to live together. I reassure you that very soon we will be together because things are much better then before.

   Lastly, I request to department of immigration that please give me some time to proof that my relationship with my wife is genuine. My wife can also provide evidence that we don't want to be separate and she can come to immigration department if required. Please mercy on this case because the question is not only here for visa, it is for us, for our relationship and for our life.

   Thank you very much, waiting for your positive response.

8. The applicant provided evidence of a one off transfer of funds.

9. The delegate noted that the applicant had applied for a student visa (TU 570) on 30 July 2014, which was later withdrawn on 17 October 2014. The applicant indicated in that application that he was separated.

10. The delegate noted that information before the Department indicated that the applicant was no longer in an ongoing relationship with the visa holder. As he was no longer a dependent of the visa holder he was no longer eligible for the visa. Accordingly, the delegate determined that as it appeared the relationship had ceased, the circumstances which permitted the grant of the visa no longer exist and the visa can be cancelled.

11. The applicant attended the Tribunal and gave further information. He has been separated from his wife for over a year. He did not know where she lived, but she had been living with another man who had a 5 year old child. The applicant believes that she wants a divorce, but he does not want this. The applicant stated he was not successful in patching up the relationship. The applicant stated his wife did not want him to be in Australia. He did not know what she was studying. The Tribunal explained the cancellation ground and asked if the ground had been made out. The applicant agreed that it had.

12. The applicant arrived in Australia as a dependent on his wife’s subclass 573 Higher Education Sector visa. For secondary applicants, they must meet the requirements of the secondary criteria of the visa, at time of application and at time of decision. This includes being a member of the family unit of the primary visa holder. The Tribunal considers that the applicant met these criteria when the visa was granted and he arrived in Australia with his wife.

13. 573.311 states:

    573.311

    If the application is made outside Australia, the applicant is a member of the family unit of:

    (a)    a person who is the holder of a Subclass 560 or 562 visa; or

    (b)    a person who satisfies, or has satisfied, the primary criteria in Subdivision 573.21.

14. The applicant is then required to meet the requirements of clauses 573.322 to 573.322 at time of decision. Included in this is the requirement that the applicant be a member of the family unit of the visa holder, 573.322. The dependent must continue to be a member of the family unit to meet the provisions of this visa.

15. The Tribunal noted at the hearing the provisions of Regulation 1.12 which provides the definition of member of a family unit.

    (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 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.

    (2)  A person is a member of the family unit of an applicant for a Student (Temporary) (Class TU) visa if the person is:

    (a)  a spouse or de facto partner of the applicant; or

    (b)  a dependent child of the applicant, or of that spouse or de facto partner, who is unmarried and has not turned 18.

    (2A)  A person is a member of the family unit of a holder of a Student (Temporary) (Class TU) visa if the person is:

    (a)  a spouse or de facto partner of the holder; or

    (b)  a dependent child of the holder, or of that spouse or de facto partner, who is unmarried and has not turned 18…

16. Spouse is defined in Section 5F provides the definition of spouse.

    (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.

    (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.

17. The applicant has stated that he and his wife were married, and they are not yet divorced. However given the evidence of the applicant that he and his wife do not have a mutual commitment to a shared life to the exclusion of all others, that the relationship is not continuing and that they have lived separately and apart for an extended period, which on the evidence of the applicant, is a permanent separation from his wife’s perspective, the Tribunal does not consider that the applicant is in a married relationship with his wife. Accordingly the applicant no longer meets the definition of a spouse as provided in the Act.

18. As the applicant no longer meets the definition spouse of the visa holder, and has not claimed to meet any other member of a family unit, it follows that the applicant is not a member of the family unit of the primary visa holder.

19. Due to the change of circumstance, being that he is no longer a member of the family unit of the primary visa holder, the applicant no longer satisfied the secondary criteria for the grant of a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa, and the circumstance that permitted the grant of this visa no longer exists.

20. 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

21. 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’.

22. As discussed, the ground for the cancellation was accepted and made out by virtue of the ending of the relationship between the applicant, the secondary and dependent visa holder, and his wife, the primary visa holder. The Tribunal asked the applicant about his circumstances.

23. The applicant claimed that his wife had manipulated him and his parents. He had applied for a student visa of his own to study English, but that his wife had said the fees would be too expensive so he had withdrawn his application. The Tribunal noted that the applicant was seeking only to study English, which was not usually an expensive course. The applicant then stated he expected her to complete her studies, then he would study. His parents paid for her studies. The applicant stated his wife had demanded he pay money to her just prior to the cancellation of the visa. The Tribunal noted that the applicant had used this payment in his submissions to the Department claiming it demonstrated an ongoing relationship.

24. The Tribunal asked the applicant what he wanted to do. The applicant stated that he wanted to study in Australia, do an English course and then further studies. The Tribunal asked what he wanted to study, the applicant stated agriculture. The Tribunal asked if the applicant had made any enquiries of any courses in Agriculture. The applicant stated a friend had told him he could study this at Education Access. The Tribunal looked up the website of Education Access Australia, and noted agriculture was not offered by this education provider, though ELICOS was[1]. The Tribunal noted its concern that the applicant’s study plans were very vague and limited, that he had not taken any steps to investigate or get information about possible future courses. The applicant stated that if he was given his visa he would apply for the 570 ELICOS visa again.

    [1]

25. The applicant stated that he had wasted 2 years in Australia. He was also concerned that he would be banned for three years if the visa was cancelled. He wanted to stay in Australia at present, before going back to India. His parents ran a farm, he wanted to study so he could open a business. The applicant provided no details as to what business he would run. He stated he wanted to learn something new. His parents had invested money in the applicant and his wife.

26. The applicant stated he had tension and stress. The relationship ending had been difficult, he was not able to talk to his wife, but there were some messages going through friends and family. The applicant stated he just wanted to study then return to India.

27. The applicant stated that he received incorrect information from an agent. For 6 months after the cancellation he had not held a visa. In November 2015 he had received a Bridging Visa E. He had been working as a cleaner but had stopped.

28. The Tribunal has considered this evidence. The circumstances for the applicant having his visa no longer exist as the relationship with his wife is over. The applicant stated he wants to stay and study, but his evidence regarding this intention was very vague and limited. He has made no plans or enquiries as to any education providers, despite the extended period between the cancellation of the visa and his hearing at the Tribunal. He provided vague and unformulated plans about his future, and why he was seeking to study. The Tribunal does not accept that the applicant’s claim that he intends to study in the future.

29. The applicant has claimed that he has wasted his time and the effect of the cancellation would be to exclude him from visa applications for 3 years. He is not happy about such a ban. The Tribunal accepts that the exclusion would be implemented, this is an express provision in the regulations. Given the Tribunal’s concerns with the applicant’s stated intention while remaining in Australia, the Tribunal places little weight on this issue.

30. There is no claim that the applicant has suffered domestic violence. There are no international obligations relevant in the circumstances and no-one else is affected by the cancellation of this visa, the primary visa holder still meeting the criteria at this stage for the visa.

31. The Tribunal accepts that the applicant and his family have invested time and money in the applicant and his now separated wife. This has largely been wasted. However the Tribunal only places minimal weight on this as it provides limited reason as to why the applicant should not have his visa cancelled.

32. The Tribunal notes that the applicant was unlawful for a period of time but rectified this situation. He also worked for a period of time, though likely was not in breach of a condition of a visa as he would not have had a visa. The Tribunal is not aware of any other issues of non-compliance.

33. The circumstances for the grant of the applicant’s visa no longer exist. He has provided very limited reasons as to why it should be returned to him, the Tribunal not accepting that he has taken any steps about applying for his own visa to study in Australia.

34. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

35. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Stuart Webb
    Member