1604591 (Migration) - [2016] AATA 4995

1604591 (Migration) [2016] AATA 4995 (21 October 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1604591
MEMBER:Mary-Ann Cooper
DATE:21 October 2016
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Statement made on 21 October 2016 at 10:42am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – relationship ceased – divorce and legal proceedings – member of the family unit – access to children – access to family law jurisdiction – circumstances beyond his control – Convention on the Rights of the Child – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 48, 116
Migration Regulations 1994 (Cth), r 1.12; Schedule 2, cl 457.321
CASES
MIMA v Teoh (1994) 183 CLR 273
MIMA v Zhang (1999) 84 FCR 258
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 30 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).
The delegate cancelled the visa under s.116(1)(a) on the basis that the decision to grant the visa was based on a fact or circumstance that was no longer the case or that no longer exists, namely the applicant’s membership of the family unit of the primary visa holder. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 11 October 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review by his registered migration agent who did not attend the hearing.
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
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?
s.116(1)(a) - Fact or Circumstance for visa grant no longer exists
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. The relevant fact or circumstance that no longer exists is that which is the subject of the ministerial reflection and this does not extend to the Minister’s own state of mind, ie satisfaction[1]. A change in the Minister’s satisfaction, as such, is not a ‘changed circumstance’ or changed fact for the purpose of s.116(1)(a). In addition, the expression ‘no longer exists or is no longer the case' in s.116(1)(a) refers to the cessation of a state of affairs that did exist; it is not concerned with circumstances which later appear to have never existed.
[1] MIMA v Zhang (1999) 84 FCR 258, per French and North JJ at [54], per Merkel J at [74].
As recorded in the delegate’s decision, a copy of which was provided with the review application, the applicant’s married relationship with his wife, the primary visa holder, had ceased and on that basis he was satisfied that there was a ground for cancellation under s.116(1)(a) because the applicant could no longer meet the required criterion as a member of his wife’s family unit. After considering the discretionary criteria and the applicant’s responses to the Notice of Intention to Consider Cancellation (NOICC) the delegate decided to cancel the visa.
As recorded in the submission of the applicant’s agent made in response to the NOICC, there was no dispute that the relationship had ceased. It was claimed that the applicant’s travel for work, while his wife remained in [town name] at her job, had put a strain on their marriage. In addition it was stated that the applicant had undergone [surgery] in December 2014 and was continuing to take medication. The incident which took place on [a day in] December 2015 in which police attended the applicant’s home and an Intervention order was consequently issued against the applicant, was also acknowledged. A copy of the intervention order, made under the Magistrates’ Court Family Violence Protection Act 2008 (Vic), was provided to the Department. It is dated [in] January 2016 and the applicant is listed as the respondent. Although his name is misspelt the applicant acknowledged the order, and that it referred to him, when it was shown to him at the hearing. The court ordered, among other things, that the respondent (the applicant) not commit family violence against against the protected persons, and prevented him from approaching or remaining within five metres of a protected person. The protected persons listed are his wife and [number] children. The order is stated to expire at midnight on [a date in] January 2017. The submission claimed that the applicant was not provided with an interpreter in relation to these proceedings. It was further acknowledged that he was subject to further criminal charges that were to be heard by the [named] Court in April 2016. The submissions stated that he had been advised to seek advice in relation to these criminal and family law matters. It was further noted that his divorce was listed for a Directions Hearing in the court [in] April 2016. Given the ongoing proceedings, it was submitted that it was inappropriate to cancel his visa.
At the hearing the applicant confirmed that he lived apart from his wife and children and that he was no longer in an ongoing relationship with her. He claimed that they were divorced [in] June 2016, although there is nothing before the tribunal that confirms this. He said he last saw her and the children in March 2016 and had not spoken to the children, only seeing them in the distance. He said he last spoke to the children on [that day in] December 2015 because he was prevented from doing so by the intervention order.
The tribunal asked him about the criminal charges referred to in his agent’s submissions, which were stated to be heard [in] April 2016. He said he was found guilty and ordered to do [number] hours of community work. As the tribunal understood his responses in this regard, he pleaded guilty because he did not want to ‘go against the children’. When asked the nature of the charges, he responded that his wife had said he had spoken loudly to the children. He claimed that he was just telling them to speak to their grandparents. He later gave evidence that the charges related to contact he made with his wife (see below at paragraph 34).
When asked if he had sought the criminal and family law advice as indicated in the submission, he said he took advice from [a legal advisor]. The tribunal asked if he had had a court date for the family law matters. He said he did not have a date because his wife had gone to [Country 1] with the children and he did not know when she would return. The tribunal found the applicant’s evidence in relation to these issues to be very vague and he did not supply any documents in support, for example, from his legal advisors. The tribunal accepts his understanding that the intervention order controls his access to the children and until it expires he is required to abide by it.
On the basis of the above evidence, notwithstanding the absence of any documents confirming the divorce, the tribunal finds that the married relationship between the applicant and his wife, the primary visa holder, has ceased and they are currently living separately and apart on a permanent basis. As such, the Tribunal finds that the applicant is no longer in a spousal relationship with his former wife within the meaning of s 5F of the Act. Nor is there any other basis upon which he could be regarded as a member of her family unit within the meaning under r.1.12 as required by cl.457.321 for the grant of the visa.
There is no evidence before the Tribunal that the applicant has been granted another substantive visa.
The Tribunal is satisfied from the above that the applicant was granted his visa, wholly or partly, on the basis of his membership of the primary visa applicant’s family unit as her spouse. The Tribunal further finds that this circumstance no longer exists. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(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.
CONSDIERATION OF DISCRETION
The Department’s guidelines[2] set out matters that as a matter of policy should be taken into account, where relevant, when considering whether to cancel a visa, whether temporary or permanent, under s.116. The tribunal acknowledges that it is not bound by policy however sees no reason to depart from it in the circumstances. These matters are as follows:
The purpose of the visa holder’s travel to and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
[2] PAM3 Visa Cancellation instructions – General visa cancellation powers (s109, s116, s128, 134B & s140)’ – s116 - Deciding whether to cancel – Matters that should be considered (re-issue date 16/2/16).
The submissions made in response to the Department’s NOICC, while acknowledging that the applicant is not the primary visa applicant, noted that he remains the father of [number] children and, it was claimed, has access rights. It was contended that, if his visa was to be cancelled, this would effectively remove the ability for him to see the children or access Australia’s family law jurisdiction. It was also claimed that he would be issued a BVE which has no work rights which would put him in a difficult situation to seek immigration, family and criminal law advice “which he desperately needs given the complexities of the situation”. The tribunal infers that the submission claimed these factors meant the applicant had a compelling need tor remain in Australia. The tribunal notes that the applicant currently has a BVE and he has work rights.
At the hearing the tribunal observed that the purpose for the applicant’s travel to Australia was to accompany his wife and this purpose no longer existed. It also observed that the subclass 457 visa he had been granted was a temporary visa and in that context he could not necessarily ever have had an expectation of permanent resident status in Australia.
The applicant told the tribunal his biggest concern was his children and that if he returns to [Country 1] he will not be able to see them. The tribunal noted his earlier comment that his former wife and children had gone to [Country 1]. He claimed this was what his wife’s lawyer had told the court at the hearing. The tribunal asked him the date of this hearing but he said he did not recall. When pressed he said he thought it was around April or May in 2016. He said he did not know if she had returned to Australia. The tribunal observed that, subject to the lifting or expiry of the intervention order, if it was the case that he was in [Country 1] and the children in Australia, he would be able to communicate with them, for example on Skype or on the telephone and perhaps visit them. He responded that his other concern was his health and that he has had an operation and receives ongoing medical treatment. Documents were provided which demonstrated that the applicant had surgery in 2014 and was currently taking [a named medication]. The correspondence also stated that he is suffering from depression, stress and sleep problems and is not fit to travel. No reason is provided for his inability to travel nor is there any indication as to the length of time he will be unable to travel. The tribunal therefore places little weight on this factor and, as it observed, the applicant could undertake his medical treatment in [Country 1]. He responded that this meant he could not see his children.
While it is accepted that the applicant wishes to remain in Australia so he can see his children, and this might otherwise indicate a compelling need for him to remain, the intervention order precluding his contact with them, renders this aspect of the tribunal’s considerations somewhat moot.
Further, there is no material or document before the tribunal that indicates there is any imminent or proposed litigation in relation to the applicant’s criminal or family law issues that might require him to remain in Australia. There is also nothing before the tribunal which indicates that he cannot receive adequate medical treatment in [Country 1].
The purpose of the applicant’s travel to Australia no longer exists and, in the above context, there is no demonstrated or persuasive evidence of a compelling need for him to remain.
The tribunal therefore considers this factor weighs significantly in favour of cancellation.
The extent of compliance with visa conditions
The submission made to the Department indicated that the agent has been instructed that there have been no other breaches.
The tribunal observed that conditions 8401, 8506 and 8207 apply to the applicant’s visa. He said he had “not done anything” to breach them.
There is no evidence before the Tribunal to indicate any such non-compliance by the applicant with his visa conditions. The Tribunal attaches some limited weight to this factor as a reason not to cancel the visa.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The submission provided to the Department claimed that the applicant would suffer “an enormous degree of hardship” as he would effectively be removed from his children. It was further claimed that if he is returned to [Country 1] he will not have access to them and that communication from [Country 1] would be very difficult. In addition it was claimed that he would not have work rights and would therefore be unable to continue any legal matters.
In his oral evidence, the applicant said there were two reasons he would suffer hardship. Firstly, that he had been living in Australia for 9 years and the weather conditions were very good for his health. Secondly, he would be away from his children. He said he hoped at the completion of the intervention order the court will decide he can see his children. The tribunal noted the submissions made on his behalf in which it was stated that he may be able to negotiate access to his children, even if supervised, and that he had been told to seek family law advice. The applicant responded that he had [legal advice] and he understood that he could not see or contact his children. The tribunal asked him generally what he had been told about contact arrangements with his children, and he said that his lawyer told him he would be able to go and get orders from the court. When asked if he had a date for a hearing, he responded “not yet”.
The tribunal notes that the applicant has advised his criminal matters and his divorce have been finalised. He has not provided any documentation indicating he is continuing any litigation and, despite the tribunal’s many attempts to elicit information in this regard, his responses in this regard were very vague. On this basis the tribunal is only aware of the intervention order which precludes him from any contact with his children. In considering any hardship resulting from his visa cancellation, the tribunal therefore attributes little weight to the hardship he claims he will experience because of separation from his children given he currently has no right of any contact or communication with them.
The tribunal accepts that he has health concerns and that his stress may be adversely impacted by the cancellation of his visa, and it attributes some weight to this concern.
The Tribunal has also had regard to the applicant’s evidence regarding his period of settlement in Australia and his desire to remain living here and to perhaps in the future see his children. It accepts that he would suffer some hardship, at least initially if he was to depart Australia, and it attaches some weight to this factor as a reason not to cancel the visa.
Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
It was stated in the submissions made by the applicant’s representatives that they were “not privy to what has been provided and what was said” by the applicant’s former wife in this regard. In that context it was stated that it was difficult to comment on the circumstances around the cancellation.
At the hearing the applicant said that on [a day in] December 2015 he had simply told his children to call his grandparents. After everyone had left their house he said the police arrived and took him away and he was not allowed to speak to his wife. The tribunal observed that the police would not have taken him way if they did not consider it was necessary. He claimed he had talked loudly to the children. The tribunal further observed that a person does not have an intervention order made against him or her because they loudly asked their children to speak to their grandparents. He said his wife had claimed he had beaten the children but he said there was no proof. He maintained he did not do anything and that because of the language barrier he did not understand what was happening. He maintained that he did not know why the police were called.
The tribunal asked him about the charges against him, as referred to in the submission made on his behalf. He claimed that he had called his wife and that he had not been allowed to do so. He said there were two charges and, as noted previously, he received a community corrections order. The tribunal asked the content of the order however he claimed not to know. The tribunal then asked how many hours of community work he was required to perform. He said it was [number] hours and that he had completed nearly [number] hours.
On the evidence before the tribunal, the circumstances in which the ground for cancellation arose relate to the breakdown in the relationship between the applicant and his wife because of family violence allegations. On the face of the intervention order, it cannot be said that this was a circumstance beyond the applicant’s control because he was the alleged perpetrator of the violence. The tribunal does not accept that the intervention order was issued because he spoke loudly to his children. The tribunal finds that his oral evidence in this regard lacks credibility. For this reason the tribunal does not accept that the circumstances in which the changed circumstances arose, that is the cessation of his married relationship with the primary visa holder, were relevantly beyond his control. Further, given his presence in Australia for 9 years, and his presence at court when the order was made, it does not accept that he did not understand the nature of the allegations made or the charges against him which, the tribunal deduces from his evidence, were the consequence of his breaching the orders by contacting his wife.

On this basis the tribunal is not satisfied that there is anything in relation to the circumstances in which the cancellation ground arose that weighs against cancellation of his visa. On the contrary, the tribunal considers the circumstances weigh strongly in in favour of cancellation of the visa.
Past and present conduct of the visa holder towards the Department
The applicant’s representatives submitted that there were no allegations made that the applicant had not co-operated with the Department.
The delegate noted that there was no information available regarding the applicant’s behaviour towards the Department that would provide a reason to cancel the visa.
At the hearing the applicant denied that he had failed to co-operate with the Department. There is nothing before the tribunal which indicates otherwise.
The tribunal attaches some very limited weight to this factor as a reason not to cancel the visa.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
As noted by the delegate in the decision, cancellation of the visa would result in the applicant becoming an unlawful non-citizen and liable for detention and removal if he does not apply for a BVE or depart voluntarily. It is further noted that he would be subject to s.48 of the Act and have limited options to apply for another visa.
It had been submitted on his behalf that the consequences of cancellation would effectively deny him procedural fairness in relation to his family and criminal law matters and would also mean that he would be denied access to his children and lose his work rights.
As noted above, the applicant is currently on a BVE and has work rights. His criminal law matters have been heard and determined. The tribunal has little understanding of the status of the applicant’s family law matters because of the paucity and vagueness of his evidence in this regard. He said his divorce was finalised. He has told the tribunal he has [legal advice]. If any proceedings are on foot or contemplated they have not been brought to the tribunal’s attention.
At the hearing the applicant said all his immediate family remained in [Country 1] and, aside from his children, he has no other family in Australia. Therefore, if his visa is cancelled and he is unable to apply for another, he will be able to return to his family in [Country 1]. He also told the tribunal that he was [an occupation] by trade before he came to Australia and had undertaken a five year apprenticeship and a year of formal training. There is nothing before the tribunal to indicate he would be unable to gain employment on his return.
In this context the tribunal does not consider there is anything in these factors which weighs against cancellation of the visa.
Whether there would be consequential cancellations under s.140
There would be no consequential cancellations.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, such as:
· if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, the best interests of the children are to be treated as a primary consideration
· whether the cancellation would lead to removal in breach of Australian’s non-refoulement obligations - that is, removing a person to a country where the person faces persecution, death, torture, cruel, inhuman or degrading treatment or punishment;
The tribunal explained these obligations generally to the applicant, referring specifically to the Convention on the Rights of the Child (CROC) and the Refugee Convention.
The applicant did not make any claims relevant to the second factor.
He said he has been in Australia 9 years and after his health problems he said his doctor told him to rest for 12 months but he had only been able to do so for 6 months. He claimed that when his wife was studying he had fully supported her.
In relation to CROC, he said he wants to see and support his children in their study, that whatever he has is for his children but if his visa is cancelled he will not be able to see them again. As previously noted, the tribunal observed that he could talk to them on Skype or on the telephone or visit them occasionally. He claimed that because of his conviction he would be unable to return to Australia. Given the absence of any objective evidence in this regard, it is not clear that the applicant has any convictions (as opposed to findings of guilt). Due the vagueness of his oral evidence, and the lack of any supporting material demonstrating the outcome of his charges or that he has ongoing family law matters, the tribunal is not satisfied that the cancellation of his visa would have any impact on his ability (or otherwise) to see his children, given the terms of the current intervention order.
The tribunal notes that the Article 3(1) of CROC provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. Article 9 concerns the principle that children not be separated from their parents against their will except in specified circumstances. It is clear that cancellation of the applicant’s visa would be an “action concerning children”: see, for instance, MIMA v Teoh (1994) 183 CLR 273. The tribunal also notes, however, that Article 9(4) of CROC contemplates that a parent may legitimately be separated from children through deportation. In addition, the intervention order currently in place, as referred to above, operates to prevent the applicant, among other things, contacting or communicating with his children, being within 200 metres of their address or where they attend school/childcare or approaching or remaining within 5 metres of them. In the context of this review application, and in view of the above discussion, the tribunal is therefore not satisfied that Australia’s international obligations under CROC would necessarily be breached as a result of cancellation of the applicant’s visa.
There is no other evidence or claim before the tribunal that the cancellation of the applicant’s visa would lead to him falling within the definition of a refugee or that Australia would otherwise breach any of its international obligations.
The tribunal does not consider anything in this factor weighs in favour or against cancellation of the visa.
Any other relevant matters
The tribunal asked the applicant about any other ties he had in Australia, such as community ties. He claimed he had his own social circle and that in his 9 years in Australia he had only returned to [Country 1] twice. He claimed that he wished to save his relationship with his wife and needed some time to be able to talk to her and his children. He said he and his family were leading a good life in Australia and there had been no complaints during their 14 year marriage.
CONCLUSION
The Tribunal acknowledges that there are some factors that point against cancellation of the applicant’s visa, including his reasonably lengthy period of time living in Australia, his positive behaviour towards the Department generally and his health conditions.
Conversely, however, the tribunal finds that these are not sufficient to outweigh the reasons in favour of cancellation. The applicant was granted the relevant visa the purpose of accompanying his wife to Australia for the duration of her temporary visa. That relationship has now ended and, notwithstanding the applicant’s claims, there is nothing before the tribunal, and it considers it highly unlikely, on the evidence before it, that they will reconcile. There is little to demonstrate that, despite his reasonably lengthy time in Australia, the applicant has particularly strong or established links to the community. While the tribunal accepts that he will suffer hardship in being separated from his children, this is already the case in Australia by virtue of the intervention order made against him. While the tribunal accepts his claim that he wishes to pursue contact with them, there is nothing before it that demonstrates he will be unable to do so in the future.
Having regard to the findings above and the circumstances of the case as a whole, individually and cumulatively, the tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Mary-Ann Cooper
Member