1511722 (Migration)

[2016] AATA 4032

1511722 (Migration) [2016] AATA 4032 (22 June 2016)

DECISION RECORD

DIVISION:Migration and Refugee Division

APPLICANT:  Mr Mukti Gurung

CASE NUMBER:  1511722

DIBP REFERENCE(S):  BCC2014/1838237

MEMBER:Alexis Wallace

DATE:22 June 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 22 June 2016 at 3:40pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 August 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 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(a) on the basis that the decision to grant the visa was based on a particular fact or circumstance that was no longer the case or no longer existed. The issue in the present case is whether that ground for cancellation is made out at the time of this Tribunal decision and, if so, whether the visa should be cancelled.

3. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The applicant was granted a Class TU, subclass 573 visa on 17 October 2012.  He was granted that visa on the basis that he was a member of the primary visa holder’s family unit.  His wife had been granted a student visa to study a Bachelor of Nursing course in Australia.  She has now graduated from that course and her student visa is due to expire in two months. 

5. The applicant and his wife arrived in Australia together on 31 October 2012.  They lived apart for a period of time from 2013 until 2015, as detailed below.  On 29 July 2015, the Department notified the applicant of an intention to consider cancellation of his visa.  On 24 August 2015, the delegate decided to cancel the visa.

6. The Tribunal has before it the Department’s file relating to the cancellation decision. The Tribunal has had regard to material in that file and to other material available to it from a range of sources.

   Legislation

7. Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds are made out. The relevant ground in this case is s 116(1)(a). A visa may be cancelled under s 116(1)(a) if the decision maker 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]).

8. In the present case, the delegate found that the applicant was granted a student visa on the basis that he was a member of the primary student visa holder’s family.  The delegate also found that their spousal relationship had ended since the time of the visa grant. 

9. At the time a Class TU student visa was granted to the applicant, Part 573 of the Migration Regulations 1994 (Cth) (the Regulations) provided that a so-called secondary applicant who did not already hold a relevant visa could be granted a visa if they were the member of the family unit of a person who held a relevant visa or had met criteria for a subclass 573 visa. A member of the family unit was relevantly defined at reg 1.12 to include the spouse of the primary applicant or their dependent child who was unmarried and had not turned 18. Section 5F of the Act stated that a person is the “spouse” of another person if the two persons are in a married relationship; and 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.

10. Regulation 1.15A set out the circumstances of the relationship to be considered:

    (a)    the financial aspects of the relationship, including:

    (i)    any joint ownership of real estate or other major assets; and

    (ii)    any joint liabilities; and

    (iii)    the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)    the basis of any sharing of day-to-day household expenses; and
    (b)    the nature of the household, including:

    (i)    any joint responsibility for the care and support of children; and

    (ii)    the living arrangements of the persons; and

    (iii)    any sharing of the responsibility for housework; and
    (c)    the social aspects of the relationship, including:

    (i)    whether the persons represent themselves to other people as being married to each other; and

    (ii)    the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)    any basis on which the persons plan and undertake joint social activities; and
    (d)    the nature of the persons’ commitment to each other, including:

    (i)    the duration of the relationship; and

    (ii)    the length of time during which the persons have lived together; and

    (iii)    the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long-term one.

11. These mandatory considerations in reg 1.15A must be taken into account when making a decision in relation to certain visa classes.  Class TU is not one of those classes.  As such, it is not mandatory for the Tribunal to apply those considerations: reg 1.15A(4). The Tribunal has considered whether to apply the above in this case and exercised its discretion not to do so.  The Tribunal has proceeded instead on the basis of the evidence presented by and on behalf of the applicant since the time he was notified of the intention to consider visa cancellation.

    Application

12. The applicant was represented in relation to the review by his registered migration agent.  The applicant appeared before the Tribunal on 30 March 2016 to give evidence and present arguments.  The Tribunal also received oral evidence from Bhumika Gurung (the primary visa holder, hereafter referred to as ‘the applicant’s wife’).  The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.  The applicant’s wife appeared to be a confident speaker of the English language and at times she was able to answer the Tribunal’s questions in a more meaningful way that the applicant, perhaps due to her increased understanding of the language and process of the Tribunal. 

13. The applicant gave evidence that he and his wife married on 20 April 2011.  He maintains that he has been her spouse since that time and he refutes any suggestion that there has been a break in the spousal relationship.  The applicant says he intends to remain in that committed relationship with his wife into the future.  He gave oral evidence that he has never previously been married and that he does not have any children.  His wife confirmed that they do not have children.  She said that, now that she has finished her university studies, they hope to start a family soon.

14. As stated above, the applicant and his wife were living apart when he was notified of an intention to consider visa cancellation.  At the hearing, the applicant’s wife explained their reasons for living in different cities for a period of time.  She explained it as a decision made by the couple in order to maximise their financial position and enable her to successfully complete her nursing qualification.  The applicant had relocated from their home on the Gold Coast to Perth for a job opportunity offered by one of his friends who lived in Western Australia.  The applicant gave evidence that he had been unable to find a job on the Gold Coast but, because he had a friend who had been living in Perth for some time, he was able to find employment through his friend’s established contacts.  On the applicant’s evidence, he maintained two jobs during his time in Perth.  He worked as a kitchen hand in a Nepalese restaurant and also as a cleaner.

15. The applicant’s wife submitted that the couple did not understand the possible insinuations of their decision to live in different cities for this purpose, in terms of its possible reflection on their relationship as non-genuine for immigration purposes.  She explained that her husband moved back to the Gold Coast to live with her in August 2015.  On the evidence before it, the Tribunal finds that the applicant now lives with his wife in Surfers Paradise, Gold Coast in an apartment that they rent with two other people.  On the evidence before it, the Tribunal finds that the applicant has been cohabitating again with his wife for at least the 10 months leading up to this decision. 

16. To supplement the oral evidence given by the applicant and his wife, written submissions were made.  These submissions were sent to the Tribunal together with supporting documentary evidence going to the existence of a genuine spouse relationship.   The evidence now before the Tribunal includes financial evidence such as joint bank accounts and evidence of shared financial contributions; photographs of the couple on social occasions; a family tree to demonstrate their distant relationship through a Nepalese great-grandfather; evidence of the lawful marriage; and a bundle of statutory declarations made by various family members and friends.  The applicant and his wife also gave accounts of their shared plans for the future which included their plan to have children.  There is evidence that the applicant and his wife had travelled separately to Nepal on occasion.  His wife explained her reason for travelling to Nepal without the applicant to be because she was travelling to her home country for the purpose of obtaining medical treatment rather than for a holiday or a social visit.  The Tribunal accepts the applicant’s evidence that during his trip to Nepal he stayed with his wife’s parents and finds this interaction with family to be indicative of a spouse relationship. 

17. Whatever may have been the case at the time of the delegate’s decision, the Tribunal is satisfied, on the evidence before it at the time of this decision, that the applicant is the spouse of the primary visa holder and thus he is a member of her family unit. If there was a time after the visa grant when the applicant was no longer her spouse, that time has now passed as the couple has reconciled. On the basis of these findings, it follows that grounds for visa cancellation under s 116(1)(a) do not arise.

18. The Tribunal is satisfied that the power to cancel the applicant’s visa does not exist.

    DECISION

19. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Alexis Wallace
    Member