1511789 (Migration)

[2015] AATA 3652

1511789 (Migration) [2015] AATA 3652 (16 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chelvanaigum Arasen

CASE NUMBER:  1511789

DIBP REFERENCE(S):  BCC2015/2084277

MEMBER:Carolyn Wilson

DATE:16 November 2015

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

Statement made on 16 November 2015 at 2:48pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 August 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 457 (Business (Long Stay)) 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 a circumstance upon which the visa was granted no longer existed. 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 16 November 2015 to give evidence and present arguments. The hearing was held as a telephone hearing at the applicant’s request.

4. The applicant was represented in relation to the review by his registered migration agent, however the representative did not attend the hearing.

5. 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

6. 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?

7. 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]).

8. The applicant was granted his Subclass 457 visa on the basis he was a member of the family unit of a primary visa holder.  According to information on the Department’s file, his ex-wife contacted the Department to advise their relationship had ceased in May 2013.  The applicant apparently confirmed to an officer of the Department that he and his wife had separated, when he was contacted by telephone on 21 July 2015.  At hearing the applicant denied he and his wife had separated as at May 2013.  He said he moved out of their home and moved interstate in September 2014, and even then he thought they were only taking  a break.  It was not until later he discovered she was in another relationship.  They are no longer in contact.  His wife commenced divorce proceedings around June or July this year. 

9. Whilst the applicant took issue with the actual date of separation, he does not dispute they are no longer in a genuine and continuing spousal relationship, as defined by the Migration Regulations.  As such, he is no longer a member of the family unit of the primary visa holder, his ex-wife. 

10. The applicant was granted a Subclass 457 visa on the basis he was the member of the family unit of Ms Arasen, the primary visas holder.  As he has ceased to be a member of Ms Arasen’s family unit, the Tribunal is satisfied that a circumstance that permitted the grant of the visa no longer exists.

11. 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

12. 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’.

13. The purpose of the applicant’s travel and stay in Australia was to accompany his wife, who held a 457 visa.  The applicant also said his intended purpose in coming to Australia was to work and support himself and his parents in Mauritius.  The applicant claims he sold everything to come to Australia and intended to migrate here on a more permanent basis. However the Tribunal gives greater weight to the purpose of his visa, that is, a temporary work visa for a fixed period of time, of which he was the secondary applicant. 

14. There is no evidence before the Tribunal that the applicant has not complied with any other visa conditions, and no evidence of any adverse conduct toward the Department.

15. The applicant claims the hardship caused to him through the visa cancellation includes his inability to pay debts in Australia and his fears about returning to Mauritius to start from nothing.  The Tribunal notes the applicant has parents in Mauritius and acknowledges his claim that he has been sending money to them from Australia. The Tribunal accepts that some hardship will be caused to the applicant by the cancellation of the visa, however it is in the context of a temporary visa, only allowing a temporary stay in Australia.

16. The cancellation arose because of relationship breakdown.  There is nothing to indicate the breakdown occurred following family violence.  The Tribunal notes his claim that he thought they were only taking a break from the relationship and did not expect his wife would start a new relationship when he left.  However, the Tribunal notes he moved to another state, not just temporarily out of their home, and considers he knew at that time the relationship may be ending. His attempts to secure another visa, such as his application for a Student visa, support an inference he was aware the relationship breakdown could affect his ongoing eligibility for the Subclass 457 visa.

17. There are no other persons in Australia who would be affected by a consequential cancellation under s.140.  There is no evidence that any international obligations would be breached as a result of the cancellation.  The applicant’s only concerns about being returned to Mauritius were that he would have to start from nothing, having sold everything he owned there before coming to Australia, and that employment may be difficult to obtain.

18. In relation to any mandatory legal consequences, the Tribunal notes the applicant would be liable to detention if he does not depart voluntarily.  The Tribunal notes the applicant says he intends to apply for a further Subclass 457 or a Subclass187 visa, but any such application would likely need to be made offshore.  As noted in the delegate’s decision, these are intended consequences of the legislation. 

19. The applicant said he needs more time to apply for another visa and is currently waiting to hear from the Department about whether he can get work rights with his Bridging visa.  The Tribunal pointed out to the applicant that it has been nearly three months since his visa was cancelled.  The Tribunal considers this is adequate time for the applicant to have sought advice on his visa options and to make any personal or other arrangements before departing.

20. In considering all the relevant factors, the Tribunal has given greater weight to the purpose of the visa, that is for the applicant to accompany the primary visa holder for a temporary stay, than to the hardship and intended consequences the cancellation will cause.  Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled. 

    DECISION

21. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

    Carolyn Wilson
    Member