1512100 (Migration)

[2016] AATA 4031

1512100 (Migration) [2016] AATA 4031 (21 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pardeep Kumar -

CASE NUMBER:  1512100

DIBP REFERENCE(S):  BCC2015/174954

MEMBER:Antoinette Younes

DATE:21 June 2016

PLACE OF DECISION:  Sydney

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

Statement made on 21 June 2016 at 11:45am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 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 (the Act).

2. The delegate cancelled the visa under s.116(1)(a) on the basis that the applicant is no longer a member of Ms Manpreet Kaur’s family unit. 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 20 June 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.  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

4. 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). 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?

5. 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]).

6. In the course of the hearing, the Tribunal discussed with the applicant the information contained in the delegate’s decision record which the applicant provided to the Tribunal in support of the application for review. Specifically, the Tribunal indicated that it appears that Ms Kaur had advised the Department that she and the applicant are no longer in a relationship, which means that he is no longer a member of her family unit. The applicant stated that Ms Kaur had deserted him and cheated on him. He said he still wants to have a relationship with her but she left him. He however confirmed that they are no longer in a relationship.

7. The applicant’s visa was granted on the basis that he is a member of Ms Kaur’s family unit. Regulation 1.12 provides that a ‘member of the family unit’ includes a spouse or de facto partner. To be a member of the family unit of Ms Kaur as stipulated by reg.1.12, the applicant needs to continue to be either a spouse or a de facto partner of Ms Kaur as defined in sections 5F and 5CB of the Act. Section 5F provides that, amongst other things, for the purposes of the Act, persons are in a married relationship if they are validly married, if they have a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship between them is genuine and continuing, they live together, or they do not live separately and apart on a permanent basis. Amongst other things, s.5CB provides that for the purposes of the Act, a person is in a de facto relationship with another person if they are not in a married relationship but they have a mutual commitment to a shared life to the exclusion of all others, the relationship between them is genuine and continuing, they live together, or do not live separately and apart on a permanent basis, and they are not related by family.

8. The applicant gave evidence that his marriage to Ms Kaur was an arranged marriage and it was not for love. He stated that this is not unusual in India. He said that he was not doing well in India in terms of employment and his neighbour told him that Ms Kaur is very educated. He stated that prior to the marriage ceremony, he had not met Ms Kaur. He said subsequent to the marriage they lived in India for about a year as a couple and later they decided to come to Australia. He said they lived together in Australia for about 3 to 4 weeks and Ms Kaur left him after that period. He stated that he had to sell family land to pay for Ms Kaur’s courses in Australia. He said he gave her about $25,000. He said he has not told his family about the breakdown of his marriage. He confirmed that they have no children.

9. The Tribunal indicated to the applicant that it would appear that the marriage was not a genuine marriage with which the applicant disagreed. He said it was an arranged marriage which is the norm in India. Whilst the Tribunal has serious doubts about the genuineness of the marriage, for the purposes of this review, the Tribunal assesses the cancellation on the basis that the marriage was genuine.

10. Although the applicant indicated that he would like to have a relationship with Ms kaur, on the basis of the available information, the Tribunal finds that the applicant and Ms Kaur have ceased to be in an ongoing relationship and that the applicant has ceased to be either a spouse or a de facto partner of Ms Kaur. Therefore, the Tribunal finds that the applicant has ceased to be a member of Ms Kaur’s family unit. The Tribunal finds that as the applicant’s visa was granted on the basis of him being married to Ms Kaur, that basis 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’.

    The purpose of the visa holder’s travel and stay in Australia

13. The applicant was granted the visa on the basis of his membership of Ms Kaur’s family unit.  He travelled to Australia as the spouse of Ms Kaur who included the applicant in her application for a student visa. 

14. The applicant’s visa was granted on that basis.  As found above, the relationship which formed the basis of the applicant’s membership of her family unit no longer exists.

    Reason and extent of any breach of a visa condition (if relevant)

15. The applicant did not breach a visa condition. However his spousal relationship with Ms Kaur has ceased. Whilst acknowledging that the spousal relationship has ended, the applicant indicated to the Tribunal that he still wants to have a relationship with Ms Kaur.  The Tribunal is satisfied that whilst the applicant has his own personal wishes about the relationship, on the evidence before it, the Tribunal is satisfied that the relationship has ceased.

    Degree of hardship that may be caused

16. The applicant gave evidence that he is currently working for 20 hours a week in a car wash facility at Parramatta. He stated that he is living with a friend and the friend’s spouse in Blacktown. He has no relatives in Australia. His father is deceased and his mother lives in India. He has a brother and a sister, both of whom live in India. He indicated that he would like to undertake studies in English. Whilst it is plausible that he would like to undertake studies in English, the applicant has not pursued any studies and on his own evidence, he is working in Australia suggesting that his current purpose in remaining in Australia is to work.

17. The Tribunal is of the view that if the applicant’s visa is cancelled, this may cause him some financial difficulty, particularly in light of his evidence that he has given Ms Kaur approximately $25,000, being proceeds of the sale of family assets in India. Potentially, if the applicant does not have a visa, he could be placed in detention under s.189 and be subject to removal from Australia under s.198. He would have limited options to apply for further visas whilst onshore and he could be required to return to India.

18. The Tribunal observes that in the course of the hearing the applicant became tearful and genuinely upset about his circumstances. The Tribunal takes this opportunity to acknowledge the applicant’s personal disappointments and sadness about what has happened with his marriage.  The visa cancellation would undoubtedly cause him some personal challenges and the Tribunal has taken those matters into consideration.

19. The Tribunal appreciates that the cancellation of the visa may cause the applicant a certain degree of hardship.  However, looking at the circumstances cumulatively, the Tribunal is not satisfied that there is a degree of hardship that outweighs the reasons to cancel the visa.

    Circumstances in which ground of cancellation arose

20. As outlined above, the visa was cancelled because the spousal relationship that the applicant had with Ms Kaur has ceased.

    Past and present conduct of the visa holder towards the department

21. The applicant’s conduct towards the Department is noncontroversial. He did respond to the notice of intention to consider cancellation. The Tribunal has considered his response in determining the review.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

22. This is not a breach of the holder of a subclass 457 visa.

    Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

23. The applicant is not in detention and he would be expected to comply with the conditions of any subsequent visa granted, including a bridging visa.

    Whether there would be consequential cancellations under s.140

24. There is no evidence before the Tribunal that as a consequence of the cancellation of the applicant’s visa, there would be automatic consequential cancellation by operation of s.140(1) of the Act. 

    Whether any international obligations would be breached as a result of the cancellation

25. There is no evidence before the Tribunal and the applicant is not claiming that there are any international obligations that could be breached as a result of the cancellation.

    The impact on any victims of family violence

26. There is no evidence before the Tribunal that there is any victim of domestic violence or that there would be any such impact.

    Any other relevant matters raised by the visa holder

27. The Tribunal has taken into consideration all relevant matters.

28. In consideration of the evidence as a whole, and for the stated reasons, the Tribunal is satisfied that there are no factors that lead to the favourable exercise of discretion in this matter.

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

    DECISION

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

    Antoinette Younes
    Senior Member