1619314 (Migration)

[2017] AATA 3047

1619314 (Migration) [2017] AATA 3047 (21 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1619314

MEMBER:Susan Trotter

DATE:21 December 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 21 December 2017 at 1:31pm

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Particular fact or circumstance required for grant of visa no longer in existence – Family unit of primary visa holder – Applicant no longer in relationship with primary visa holder – Compassionate circumstances – Circumstances beyond control of the applicant

LEGISLATION
Migration Act 1958, ss 5(1), 5F, 48, 116, 362B,
Migration Regulations 1994, rr 1.12, 2.12

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

1. This is an application for review of a decision dated [in] November 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. [In] March 2016, the applicant was granted a Subclass 457 visa on the basis of being a member of the family unit of [Mr A], who satisfied the primary criteria for and was the holder of a Subclass 457 visa.

3. [In] October 2016, a Notice of Intention to Consider Cancellation (NOICC) was forwarded to the applicant, to which the applicant responded in a letter dated [in] October 2016.

4. [In] November 2016, the visa was cancelled under s.116(1)(a) of the Act on the basis that a particular fact or circumstance upon which the decision to grant the visa was based was no longer the case or no longer existed. Specifically, the delegate found that the applicant was no longer a member of the family unit of [Mr A].

5. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 16 November 2016. The applicant provided a copy of the delegate’s decision and decision record to the Tribunal with her application.

6. On 3 November 2017, the Tribunal wrote to the applicant, via her registered migration agent’s email address provided when her application was lodged with the Tribunal, advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 28 November 2017 and advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on the review without taking any further action to allow or enable her to appear before the Tribunal.

7. On 21 November 2017, the Tribunal received a response to the hearing invitation on behalf of the applicant indicating that she would be attending the hearing.

8. On 27 November 2017, the Tribunal received a letter from the applicant’s representative seeking a one month extension of the hearing on medical grounds. Amongst other things, a medical certificate was provided stating that the applicant was unfit for work until 1 December 2017.

9. On 28 November 2017, the Tribunal wrote to the applicant, again via her registered migration agent’s email address, agreeing to grant the adjournment request until the first available hearing date after 1 December 2017, the date until which the medical evidence indicated the applicant would be incapacitated.

10. On 1 December 2017, the Tribunal wrote to the applicant, via her registered migration agent’s email address, advising a new hearing date and time of 19 December 2017 at 11:00 am. The letter stated that if the applicant did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the review without taking any further action to allow or enable her to appear before the Tribunal.

11. No response was received to the Tribunal’s letter of 1 December 2017 and the applicant did not appear at the scheduled hearing before the Tribunal on 19 December 2017 at the time and place at which she was scheduled to appear.

12. The Tribunal is satisfied that the applicant was notified of the hearing by the 1 December 2017 letter being dispatched to the last address for service provided to the Tribunal by the applicant in connection with the review, and as such was invited to appear before the Tribunal in accordance with the statutory requirements. Pursuant to s.362B of the Act, the Tribunal decided to make its decision on the review without taking any further steps to enable the applicant to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

13. The applicant was represented in relation to the review by her registered migration agent.

14. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

    ISSUES

15. 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(a) that a particular fact or circumstance upon which the decision to grant the visa was based is no longer the case or no longer exists.

16. 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.

17. There are no matters specified in the Act or Migration Regulations 1994 (the 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’ including:

    (a)  The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia;

    (b)  The extent of compliance with visa conditions;

    (c)  Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the visa holder and any family members;

    (d)  Circumstances in which ground of cancellation arose. 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;

    (e)  Past and present conduct of the visa holder towards the department;

    (f)    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;

    (g)  Whether there would be consequential cancellations under s.140 of the Act;

    (h)  Whether any international obligations would be breached as a result of the cancellation; and

    (i)    Any other relevant matters.

18. It follows that the issues to be determined by the Tribunal are:

    (a)  Does the ground for cancellation exist?; and, if so,

    (b)  Should the discretion to cancel the visa be exercised?

    CONSIDERATION

    Issue 1 - Does the ground for cancellation exist?

19. The applicant’s visa was granted on the grounds that she was a member of [Mr A]’s family unit and therefore met the secondary criteria set out in r. 1.12 of the Regulations. Relevantly, r. 1.12(1)(a) provides that a person is a member of another’s family unit within the meaning of s. 5(1) of the Act if the person is the other’s spouse or de-facto partner. Section 5F(1) of the Act provides that a person is the spouse of another if both are in a married relationship. Section 5F(2) provides that the two people will be in a married relationship if they are married, have a mutual commitment to a shared life as husband and wife, the relationship between them is genuine and continuing, and they live together (or do not live separately on a permanent basis). All of those characteristics of the relationship must exist for the definition of a spouse under s. 5F to be satisfied.

20. As noted in the delegate’s decision record, there is information before the Department which indicated that the applicant and [Mr A] are no longer in an ongoing relationship.

21. The applicant, in her response dated [in] October 2016, stated that [she had] moved out of her shared home with [Mr A in] August 2016; however she is still the legal spouse of [Mr A].

22. Written submissions received from the applicant’s representative included that [personal details of applicant removed]; that the applicant left the matrimonial home [in] August 2016; and that [in] August 2017, [Mr A] filed for a divorce from the applicant, which the applicant accepted.

23. In an undated statutory [declaration], the applicant states that “I consider that my relationship with … ended [in] October 2016 [personal details of applicant removed] …”.

24. Had the applicant attended the hearing the Tribunal would have clarified with her whether her relationship with [Mr A] ceased [in] August 2016 (as stated in her [October] 2016 response to the NOICC) or [in] October 2016 (as stated in the unsigned statutory declaration).

25. In any event, the Tribunal finds that the applicant and [Mr A] are no longer in a continuing relationship and have not been since at least [October] 2016, if not [August] 2016. It follows, and the Tribunal finds, that the applicant has not been the spouse of [Mr A] within the meaning of that term in s.5F of the Act since at least [October] 2016. Accordingly, the Tribunal is satisfied that the ground for cancelling the applicant’s visa under s. 116(1)(a) of the Act existed [in] November 2016 when the delegate cancelled the visa, and it exists now.

26. As that ground does not require mandatory cancellation of the applicant’s visa under s.116(3) of the Act, the Tribunal must proceed to consider whether, as a matter of discretion, the power to cancel the visa should be exercised.

    Issue 2 - Should the discretion to cancel the visa be exercised?

27. 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 PAM3, ‘General visa cancellation powers’ as referred to earlier in these Reasons.

    The purpose of the [the applicant]’s travel and stay in Australia, whether [the applicant] has a compelling need to travel to or remain in Australia

28. The applicant arrived in Australia in September 2015 as the hold of a [temporary] visa. She was subsequently granted a Subclass 457 visa on 15 March 2016 as a secondary applicant, with the purpose of her stay in Australia being to live with [Mr A] (the primary 457 visa holder) as his wife. Her relationship with [Mr A] is no longer continuing. Accordingly, the purpose of the applicant’s travel to Australia has ceased to exist.

29. The Tribunal also considered it relevant to consider whether the applicant’s proposed continued stay in Australia is consistent with the purpose of the 457 visa scheme.

30. A 457 visa is not one under which the visa holder can stay permanently in Australia to establish him or herself, and it does not create an expectation of a permanent stay. Its purpose is to enable a business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations under the Australian and New Zealand Standard Classification of Occupations (ANZSCO). The 457 visa is one of limited duration related to working for a particular sponsor in a skilled occupation. The purpose of a 457 visa is not served by allowing an applicant to remain in Australia to study, train for a particular career, look for employment opportunities, or improve their financial position.

31. The applicant in her [October] 2016 response to the NOICC indicates that she wishes to bring a legal case against [Mr A] seeking [personal details of applicant removed]. If the applicant had attended the hearing, the Tribunal would have sought further information from the applicant in relation to her intentions in that regard. However, the Tribunal does not consider any such intention on the part of the applicant is consistent with the purpose of the visa or the 457 visa scheme and does not consider such intention weighs in her favour when considering the discretion whether to cancel the visa.

32. The Tribunal places substantial weight on the purpose of the applicant’s stay to Australia no longer existing. It also places substantial weight on her continued stay in Australia being inconsistent with a stay under a 457 visa.

    The extent of compliance with visa conditions and co-operation with the department

33. There is no evidence before the Tribunal that the applicant has breached any condition of her visa. Further, there is no evidence of a lack of co-operation with the department. The applicant promptly responded to the notice of intention to cancel her visa. Those matters stand in her favour.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the visa holder and any family members;

34. In her [October] 2016 response to the NOICC, the applicant sets out a background to the breakup of her relationship with [Mr A], including [personal details of applicant removed]. She also indicated that her visa should not be cancelled because she has been working two jobs to support her personal expenses, having worked as [occupation] in [her home country] with over nine years work experience before coming to Australia. She indicated that she wishes to file a legal case against [Mr A] seeking [personal details of applicant removed]. She indicates that she uprooted her life from [her home country] to settle in Australia and brought hope for happiness and a better life with [Mr A] which has been destroyed. She seeks [personal details of applicant removed].

35. Written submissions made on behalf of the applicant included that in light of [personal details of the applicant removed] that the applicant has been through, her visa should not be cancelled.

36. Had the applicant attended the hearing, the Tribunal would have asked for further details of the hardship that would be caused to her or her family if the visa is cancelled.

37. The Tribunal accepts that the applicant would suffer some hardship if the visa is cancelled given the unexpected change in her circumstances and the Tribunal has placed some weight in the applicant’s favour on the hardship that may be caused by cancellation of the visa.

    Circumstances in which ground of cancellation arose. 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.

38. Based upon the applicant’s response to the NOICC, she ended the relationship with [Mr A] because of [personal details of applicant removed]. She sent out in her [October] 2016 response a summary of her account as to the breakdown of the relationship. The Tribunal does not have evidence before it from [Mr A] as to the breakdown of the relationship from his point of view. However, the applicant has provided [documentary evidence] which is supportive of a breakdown of the relationship ultimately occurring in the circumstances described by the applicant. Without having heard from [Mr A], it appears that it was his conduct that primarily caused the relationship to break down. [Mr A] is the primary visa holder. The applicant is a secondary visa applicant and her visa relied upon her relationship with [Mr A] continuing.

39. Whilst the evidence before the Tribunal is limited, given lack of evidence from [Mr A], it appears that the circumstances in which the visa cancellation arose were largely beyond the applicant’s control.

40. The Tribunal places some weight on this consideration in the applicant’s favour.

    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

41. The applicant is currently on a bridging visa because of this review process. In the absence of the applicant making another successful visa application, or the Minister granting a visa, ultimately she will not have authority to remain in Australia. If so, the applicant will have the opportunity to depart Australia. Whilst her continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

42. Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s. 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore. The Tribunal has taken that potential limitation into account. However, these are intended legislative consequences of cancellation and they are consistent with the objectives of the migration program.

43. Accordingly, the Tribunal is not satisfied that there are consequences of the cancellation which mean that the visa should not be cancelled.

    Whether there would be consequential cancellations under s.140 of the Act

44. There is no evidence that there would be consequential cancellations in this case.

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

45. There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation.

    Any other relevant matters

46. In [October] 2016 response, the applicant also raised that she is new in Australia and has never dealt with immigration matters and that [Mr A] did not show her the visa grant letter showing the visa conditions and limitations. The Tribunal observes that the applicant previously held a [temporary] visa in her own right and would have asked the applicant further details about the circumstances of that visa if she has attended the hearing. In any event, the Tribunal does not consider these matters raised by the applicant carry any significant weight in her favour when considering the discretion to grant the visa.

47. The applicant’s representative’s written submissions state that the applicant had no other choice but to leave the family unit and asks that the Tribunal understand the [personal details of applicant removed]. The Tribunal acknowledges the [personal details of applicant removed].

48. The applicant also raised that she needed some time to sort out her emotions and plan her next move. Notably, it has now been over 12 months since the visa was cancelled and the applicant has remained in Australia pending this review, giving her ample time to do this.

    Conclusion

49. The Tribunal has placed substantial weight in the applicant’s favour on the circumstances in which the ground for cancellation arose being beyond her control. The Tribunal also accepts that there will likely be some hardship caused by the cancellation to the applicant. The Tribunal has also placed some weight in the applicant’s favour on her co-operation with the department and her compliance with visa conditions. However, importantly the Tribunal also placed significant weight upon the purpose of the visa. She is no longer in a relationship with the primary visa applicant and her continued stay in Australia is far removed from the purpose of her original continuing presence in Australia, and the purpose of the 457 visa scheme.

1. Having had regard to all of the evidence and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   Susan Trotter
   Member