1603131 (Migration)

[2016] AATA 3852

1603131 (Migration) [2016] AATA 3852 (9 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Marie Virginia Neave

CASE NUMBER:  1603131

DIBP REFERENCE(S):  BCC2016/741173

MEMBER:Denise Connolly

DATE:9 May 2016

PLACE OF DECISION:  Sydney

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

Statement made on 09 May 2016 at 11:44am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 March 2016 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. The applicant has provided to the Tribunal a copy of the delegate’s decision record which records that the applicant was granted the SC 457 visa on 31 August 2012 on the basis that she was a member of the family unit of Mr Luke Neave, her former partner. On 4 December 2015 the applicant lodged an application for a partner visa, sponsored by her current partner, Mr Jason Byrne. The Department was advised by the applicant that the relationship with Mr Neave had ended and that the applicant had commenced a new relationship with Mr Byrne, with whom she now has a child born on 17 January 2016. She has provided a copy of her daughter’s birth certificate. The Department wrote to the applicant seeking her comments on its intention to consider cancellation of her SC 457 visa. The applicant responded and advised that she had postponed informing the Department of her change of circumstances because she feared being forced to leave Australia with her newborn baby. She was concerned that if her SC 457 visa was cancelled it might lead to her bridging visa being cancelled and she would have to go offshore. She confirmed she has made a partner visa application, sponsored by Mr Byrne. The delegate considered this information and decided to cancel the visa under s.116(1)(a) on the basis that the circumstances which permitted the grant of the visa no longer existed.

3. The issue for the Tribunal to consider is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 9 May 2016 to give evidence and present arguments.

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 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 has acknowledged that she was granted the SC 457 visa on the basis that she was a member of the family unit of Mr Luke Neave, her former partner. At the hearing she confirmed that the relationship has ended and she is no longer a member of Mr Neave’s family unit.

9. 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

10. 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’.

11. Before the hearing the applicant provided evidence to the Tribunal confirming that she gave birth to her daughter on 17 January 2016 and that Mr Byrne is registered as the baby’s father.

12. At the hearing the applicant confirmed that her partner visa application is still on foot. The Tribunal discussed with her the reasons why it may find that the appropriate decision is to cancel the visa and that this does not prevent the applicant applying for a bridging visa to remain onshore while the Department processes her partner visa application.

13. In discussing the factors that the Tribunal should take into account, the applicant indicated she wishes to remain onshore permanently to live with Mr Byrne, a permanent resident who has been informed he has been granted Australian citizenship but is currently waiting for his ceremony. She wishes to live in Australia with Mr Byrne and her daughter who has a right to Australian citizenship. She indicated that she may work in her field as a contract administrator at some time in the future. The Tribunal is of the view however that her main purpose for remaining in Australia is more appropriately met by the partner visa application.

14. The Tribunal accepts that if the applicant’s visa is cancelled and she has to go offshore she would experience financial and emotional hardship. However the delegate has noted that the applicant may apply for a bridging visa E while she is waiting for her partner visa application to be processed.

15. In considering her past and present conduct the Tribunal notes that the applicant did not inform the Department that her relationship with Mr Neave had broken down in 2014, and that soon after she commenced her relationship with Mr Byrne, then an Australian permanent resident. It understands that the applicant did not approach the Department earlier because she feared she would be required to leave Australia and she wished to remain her permanently particularly after she commenced her relationship with Mr Byrne, and had her baby. However in the Tribunal’s view, her desire to remain here with Mr Byrne and her baby is not a factor which should influence the Tribunal towards not cancelling the SC 457 visa as this visa is not designed for this purpose.

16. The applicant confirmed there was no family violence when her relationship with Mr Neave broke down, but rather it was a mutual decision to separate as the relationship had run its course. There are no consequential cancellations and the applicant has confirmed she has no fear of persecution if she returns to her home country.

17. Overall the Tribunal is of the view that the significant factor in this case is that the applicant has now formed a permanent relationship with Mr Byrne, with whom she has a baby, and the appropriate visa in these circumstances is a partner visa. It is satisfied the applicant has made a partner visa application and that she will make a bridging visa application, which if granted will allow her to remain onshore with her partner and baby while the partner visa application is being processed. The Tribunal is of the view that it is more appropriate to cancel the applicant’s SC 457 visa because she is no longer a member of the primary visa holder’s family unit. The SC 457 visa is designed to address a skills shortage and while the applicant may work in a skilled occupation in the future her current purpose for remaining in Australia is to be with her new family. It notes she now wishes to remain in Australia permanently so it is appropriate that she has made a permanent visa application. The SC 457 visa is only a temporary visa and will not meet her long term plans to live with her Australian family.

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

    DECISION

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

    Denise Connolly
    Member