1510125 (Migration)

[2015] AATA 3649

1510125 (Migration) [2015] AATA 3649 (11 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Concordia Guiritan Fuertes

CASE NUMBER:  1510125

DIBP REFERENCE(S):  BCC2015/1654711

MEMBER:Jennifer Ciantar

DATE:11 November 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 11 November 2015 at 12:32pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 July 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).

2. On 9 July 2015 the Department sent the applicant a Notice of Intention to Cancel her Subclass 457 visa. The applicant responded by asking that the visa not be cancelled as she wants to stay in Australia to study. She has passed the English examination and is interested in applying for the school program.

3. The delegate cancelled the visa under s.116(1)(a) on the basis that a circumstance that permitted the grant of the visa no longer exists. The delegate found that the applicant was no longer a member of the family unit of Christophe Bernard Veysseyre who was the primary visa holder.

4. On 28 July 2015 the applicant wrote to the Tribunal and stated that she is about to lodge a substantive visa application, a Subclass 572. She has already enrolled, she passed the English assessment and she has sufficient funds. Australia has been her home for 6 years and her assets are here. The applicant provided a Confirmation of Enrolment for a Certificate III in Hospitality course starting 12 October 2015 and a bank account statement.

5. On 26 October 2015 the applicant provided a Confirmation of Enrolment for a Certificate III in Hospitality starting 23 May 2016 and a bank account statement.

6. The applicant appeared before the Tribunal on 3 November 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Christophe Veysseyre, the applicant’s former partner.

7. 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

8. 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.

9. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Does the ground for cancellation exist?

10. 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]).

    Hearing

11. The applicant gave evidence that she and her former partner have lived separately since 2014 but the relationship was on and off. A few months ago they decided they would not be able to reconcile and they lodged a divorce application and decided they should tell the Department that they were no longer in a relationship. However, they had been together for about 16 years and they have remained amicable since separating. 

12. The applicant stated that she was granted a Subclass 457 visa in October 2011 and she believes that the visa would have recently expired. Her former partner’s Subclass 457 visa has ceased and he has applied for a new visa but he did not include the applicant on his application because they have separated. The Tribunal put to the applicant that even if her visa had not been cancelled it would have ceased by now. The applicant stated that she wants to apply for a student visa. She had advised the Department of this in her response to the Notice of Intention to cancel her visa but the Department had not allowed her time to lodge a student visa even though she had obtained a Confirmation of Enrolment and had the necessary documents. She went to the Department as soon as she received the cancellation decision but she was told that because she is now the holder of a Bridging E visa, she cannot lodge a student visa onshore.

13. When asked if she could lodge a student visa application offshore, the applicant stated that she has heard that there are many difficulties applying for a student visa offshore, from her country. When asked about these difficulties, the applicant said she believes that the Department can make the process difficult. When asked if there would be any hardship if she had to leave Australia the applicant said she has not lived in her own country for about 20 years and she has no home there and would find it difficult to adjust to the lifestyle. She has lived in Australia for 6 years and previously lived in Europe, in France and Germany. Her former partner is French. She has no family in Australia and still has her sisters and mother in the Philippines. However, she considers Australia to be her home. She has held 2 Subclass 457 visas and has not previously had any problems with the Department.

14. The applicant stated that she was working as a room attendant but wants to study a Certificate III in Hospitality so that she can obtain a more skilled position in the hospitality industry. Although the most recent CoE indicates that the course does not commence until May 2016, there are earlier courses including a course commencing in February 2016 and the applicant could enrol in an earlier course. She has a Bachelors qualification in History from her own country and she can speak French and some German, as well as English. Her assets are her savings and she has been able to support herself since her visa was cancelled, as she has not been allowed to work.

15. The witness stated that his Subclass 457 visa ceased recently and he now holds a Bridging visa and is waiting for a Subclass 457 visa application to be processed by the Department. His employer has sponsored him. His relationship with the applicant has ceased but they were together a long time and he wants to vouch for her good character. She views Australia as her home.

    Consideration of the Evidence

16. The applicant was granted a Subclass 457 visa on 20 October 2011 as the member of the family unit of Christophe Veysseyre, the primary visa holder. The applicant does not dispute that she is no longer in a relationship with Mr Vesseyre. The Tribunal is satisfied that the applicant is no longer a member of the family unit of the primary visa holder and that a circumstance that permitted the grant of the visa no longer exists.

17. 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

18. 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’.

19. There is no evidence that the applicant has not cooperated with the Department or that she has failed to comply with visa conditions. She has now been living in Australia for about 6 years.

20. The purpose of the applicant’s stay in Australia was to be a member of the family unit of the primary visa holder. However, that relationship has ceased. Her evidence is that her former partner has lodged a new Subclass 457 visa application but he has not included the applicant as they are no longer in a relationship.

21. The applicant stated that when she received the Notice she was preparing to lodge a student visa and she provided evidence of funds and enrolment. However, the Department has advised her that as the holder of a Bridging E visa, she is not able to lodge the student visa application onshore. The applicant said there was insufficient time between the issue of the Notice and the cancellation for her to lodge the student visa application. She had not sought migration advice and found the system confusing. The Tribunal accepts that there was a short period between the sending of the Notice and the cancellation of the visa. However, the applicant’s evidence is that she ceased living with her former partner in 2014 and the Notice of intention to Cancel was not issued until July 2015. The Tribunal accepts that the applicant may have hoped that the relationship would resume and there was some delay notifying the Department for this reason. However, the Tribunal is of the view that the applicant had a considerable amount of time to make enquiries about the impact of the relationship ceasing on her visa and on her migration status but it would appear that she had not taken any action until around the time that the Notice was issued, which was many months after she ceased living with her former partner.

22. The applicant claims she has heard that the process of assessing offshore student visa applications from her country can be difficult or protracted. However, the Tribunal is not persuaded that any delay in processing such an application amounts to hardship.

23. The Tribunal does accept that the applicant has not lived in her home country for some 20 years and it could be difficult for her to adapt to the lifestyle. The Tribunal accepts that returning to the Philippines after such a long period could cause the applicant emotional and possibly financial hardship although she has provided evidence that she has substantial savings and her mother and siblings live in the Philippines whereas she has no family in Australia. There is no evidence or claim that any international obligations would be breached as a result of the cancellation.

24. On balance, the Tribunal has given weight to the findings that that the reason for the grant of the visa no longer exists and that the visa, which was a temporary visa, would have ceased by now. Although the applicant has lived in Australia for 6 years, she does not claim to have strong employment or family ties in Australia.  In respect of enabling the applicant to lodge a student visa onshore, setting aside the cancellation of the Subclass 457 visa is likely to be somewhat futile, as the visa would have ceased by now. There is no evidence that the applicant would be unable to apply for temporary visas offshore due to any exclusion periods.

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

    DECISION

26. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Jennifer Ciantar
    Member