1605645 (Migration)

[2016] AATA 4546

1605645 (Migration) [2016] AATA 4546 (14 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ashley Gerrard Fitzroy

CASE NUMBER:  1605645

DIBP REFERENCE(S):  BCC2016/982281

MEMBER:Mary-Ann Cooper

DATE:14 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 14 October 2016 at 11:09am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 April 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 delegate cancelled the visa under s.116(1)(a) on the basis that the applicant no longer met the relevant criterion as a member 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.

3. On 1 September 2016 the tribunal wrote to the review applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The tribunal invited the review applicant to give oral evidence and present arguments at a hearing on 13 October 2016. The review applicant was advised that if he did not attend the hearing and a postponement was not granted, the tribunal may dismiss the application or make a decision on the case without further notice.

4. The review applicant did not appear before the tribunal on the day and at the scheduled time and place. The tribunal is satisfied that its hearing invitation complied with the statutory requirements and was sent to the applicant’s address for service as provided in connection with the application for review. The tribunal also notes that its records demonstrate that two SMS hearing reminders were sent to his mobile phone on 6 and 12 October 2016 and there is no indication of a failure of delivery.

5. The tribunal has considered its discretion under subsection 362B to re-schedule or to delay its decision on the review in order to enable the review applicant’s appearance before it to be re-scheduled. In this case, the tribunal notes that the applicant has been aware since 12 April 2016 of the grounds upon which his visa application was refused, having provided a copy of the primary decision record with his review application. As noted in that decision the applicant did not provide a response to the Department’s Notice of Intention to Consider Cancellation of his visa (NOICC). Since the filing of the review application neither he nor his agent have made any contact with the tribunal or replied to the Hearing Invitation. He did not provide documentary evidence or written submissions in support of his review application. He did not contact the Tribunal to explain the reasons why he failed to attend the scheduled hearing.

6. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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

9. 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]).

10. As recorded in the delegate’s decision, a copy of which was provided with the review application, the Department received information that the applicant’s defacto relationship with the primary visa holder had ceased and on that basis she was satisfied that there was a ground for cancellation under s.116(1)(a) because the applicant could no longer be regarded as a member of his defacto’s family unit (r.1.12 of the Regulations and s.5CB of the Act). Noting that the applicant had not responded to the Notice of intention to Consider Cancellation, the delegate considered the discretionary criteria and decided to cancel the visa.

11. As noted above, no further communication or documents have been provided to the tribunal.

12. As also recorded by the delegate, and as confirmed by the tribunal, the Department received information that the applicant was no longer in an ongoing relationship with the primary visa applicant. In the absence of any responses to either the NOICC from the Department or the request from the tribunal in the hearing invitation to provide any information or documents on which he intended to rely, there is nothing before the tribunal that contradicts this information.

13. On this basis, the tribunal is satisfied that the defacto relationship between the applicant and the primary visa holder has ceased and that they are currently living separately and apart on a permanent basis. As such, the Tribunal finds that the applicant is no longer in a defacto relationship with the primary visa applicant within the meaning of s 5CB 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 of r.1.12 of the Regulations.

14. The tribunal is satisfied 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 defacto partner (cl.457.321). The tribunal further finds that this circumstance is no longer the case. For this reason, 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.

    Consideration of discretion

15. 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 to and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

16. The delegate noted that during the application process the applicant stated his purpose of travel to Australia was to accompany the primary visa holder. It was further noted that he had applied for a student visa and this indicated that his purpose had altered. The delegate did not consider that his stated purpose at the time of this visa application constituted a reason not to cancel his visa.

17. The tribunal notes that the applicant was granted the visa, at least in part, on the basis of his relationship with the primary visa applicant and, as this relationship had ceased, that purpose no longer exists.

18. There is nothing before the tribunal which suggests that the applicant has a compelling need tor remain in Australia.

19. The tribunal considers these factors weigh in favour of cancellation.

    The extent of compliance with visa conditions

20. On the basis that the applicant was no longer a member of the family unit of the primary visa applicant, the delegate considered his non-compliance was significant.

21. The tribunal notes that there is nothing before it as to the conditions which have applied to the applicant’s visa/s and/or his non-compliance with those conditions.

22. On this basis it attaches no weight to this consideration.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

23. As the applicant did not respond to the NOICC, the delegate had nothing before her which indicated he would suffer any hardship. She accepted that some hardship might be caused if he was required to depart Australia but that a Bridging Visa would enable him to finalise any necessary matters.

24. The applicant has not communicated or provided any information in this regard to the tribunal.

25. In the absence of any claims or evidence that the applicant will suffer any hardship if his visa is cancelled, the tribunal considers there is nothing before it in relation to this factor that weighs against cancellation of the visa.

    The circumstances in which the 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

26. The delegate again noted the applicant’s failure to respond to the NOICC and considered the fact of the cessation of the relationship was a ground to cancel the visa.

27. There is no claim or evidence before the tribunal that indicates the circumstances or causes of the breakdown of the applicant’s relationship with the primary visa holder or that they were  in any way beyond his control.

28. The tribunal therefore considers there is nothing in this factor which weighs against cancellation of the visa.

    Past and present conduct of the visa holder towards the department

29. The  delegate noted that there was nothing relevant before her in this regard.

30. Similarly there is no claim or any evidence before the tribunal as to the applicant’s  behaviour towards the Department. The tribunal notes that it was not the applicant who advised the Department of the cessation of the relationship.

31. The tribunal considers that this weighs in favour of cancellation of the visa.

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

32. This factor is not relevant to this application.

    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

33. The delegate observed that cancellation of his visa would mean the applicant became an unlawful non-citizen and liable to detention and removal, as well s subject to s.48 of the Act.

34. The tribunal notes that recent Departmental records indicate that the applicant has been granted a student visa. On this basis the tribunal understands that the cancellation of this visa will no longer have the consequences indicated by the delegate.

35. There is therefore nothing in this factor which weighs against cancellation of the visa.

    Whether there would be consequential cancellations under s.140

36. There would not be any subsequent s.140 cancellations.

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

37. As noted by the delegate, there was no information that indicated cancellation would result in a breach of Australia’s international obligations.

38. There is nothing before the tribunal that suggests Australia’s international obligations would   be engaged by the cancellation of the applicant’s visa.

39. There is therefore nothing in this factor which weighs against cancellation of the visa.

    Any other relevant matters.

40. No other matters arise on the material before the tribunal.

41. Because of the applicant’s failure to reply either to the Department, or to send any information or documents to the tribunal or appear at the scheduled hearing, the tribunal has been unable to   make any relevant inquiries of him as to his circumstances.

42. In such a context, where the applicant has failed to avail himself of the opportunity to appear and/or place material in support of his application to the tribunal, there is little before it that suggests the visa should not be cancelled. On the contrary, his clear lack of engagement with his application suggests a lack of concern as to the outcome.

43. The Tribunal has considered the applicant’s circumstances, insofar as they can be ascertained on the limited information before it,  individually and cumulatively. It concludes, on the basis of the fact that he no longer meets the requirements for this visa, compounded by his failure, without any apparent reason, to engage with the tribunal in its examination and assessment of his circumstances, that the factors favouring cancellation of the visa  outweigh those against it and the visa should be cancelled.

    CONCLUSION

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

    DECISION

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

    Mary-Ann Cooper
    Member