1705391 (Migration)

[2019] AATA 1776

1705391 (Migration) [2019] AATA 1776 (31 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1705391

MEMBER:Margie Bourke

DATE:31 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 31 January 2019 at 2:07pm

CATCHWORDS

MIGRATION – cancellation – Skilled (Temporary) (Class TU) – Subclass 573 Higher Education Sector – circumstance for visa grant no longer exists – breakdown of marriage – granted visa based on spouse’s visa – reconciled – student visa expired – not member of family unit – no evidence of hardships –  decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 48, 116, 140, 359AA

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 9 March 2017 made by a delegate of the Minister for Immigration and Border Protection 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 circumstances which permitted the grant of the visa no longer exist. 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 17 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A].

4. 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

5. 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

6. A visa may be cancelled under s.116(1)(a) if the Minister 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.

7. The applicant was granted the Subclass 573 visa on the basis he was the spouse of [Ms A], and she was a student. The applicant stated he was the holder of a dependent student visa because of his marriage to [Ms A].  The applicant stated he was employed [in an occupation].  The applicant and [Ms A] told the tribunal that they were married in Australia [in] October 2014. [Ms A] studied [Course 1 at a] College, and completed the [course] at the end of 2017. The visa which is the subject of this review was granted on 15 June 2016, and was to have ended on 15 December 2017.

8. The applicant and [Ms A] both gave evidence that the relationship broke down in mid November 2016, and [Ms A] left the marital home at that time. [Ms A] notified the Department of the breakdown of the relationship. The applicant told the tribunal he received the notice of intention to consider cancellation of the visa from the Department, but he did not respond as he was going through “a lot of stuff”. The applicant’s visa was cancelled by the Department on 9 March 2017.

9. The applicant and [Ms A] gave evidence that resumed contact with each other in March 2017.  They worked through the issues in their relationship from March to September 2017.  They stated they then looked for a place to live together, and moved in to a place together [in] January 2018.

10. The applicant and [Ms A] both gave evidence that the applicant was not residing with [Ms A] from mid November 2016 until [January] 2018.  They both gave evidence that at the time the applicant’s visa was cancelled they were not living in a spousal relationship. They both gave evidence that [Ms A’s] student visa had ceased on 15 December 2017. They both claimed that they had reconciled, and that the separation had been temporary.

11. I have considered this evidence. I put the information in [Ms A’s] email to the Department dated 10 November 2016 to the applicant pursuant to the s.359AA process, and read out the following “our relationship has broken down, and I have moved out of the house now. We are no longer in contact with each other.  I would like him to be excluded from my visa”.  I discussed the relevance of this information was that it did not sound like a temporary separation. The applicant stated he understood the particulars of the information, and the relevance, and the consequences if the tribunal relied on the information indicating that [Ms A] had not thought the separation was temporary in November 2016.  The applicant stated that he had never wanted the separation, and had always wanted to reconcile.

12. The applicant and [Ms A] stated there were no drug or alcohol issues in their relationship breakdown. They stated there were no mental health issues in the breakdown of the relationship. The applicant stated that the issues related to trust and he did not spend enough time with [Ms A]. The applicant and [Ms A] stated it took a long time to work through these issues.

13. I have considered the evidence before me, and I am satisfied that the applicant was granted the visa on the basis he was the spouse and member of the family unit of [Ms A], who was the holder of a student visa since April 2015, and the holder of the student visa which is the subject of this review from June 2016 until December 2017. I am satisfied that [Ms A] left the matrimonial home in mid November 2016, and notified the Department that the applicant was living in Australia on the basis of their marriage as the holder of a student dependent visa, and she wanted him excluded from the visa. I am satisfied that the applicant was not a member of [Ms A’s] family unit after the separation in mid November 2016, and before the expiration of the visa on 15 December 2017.  I am satisfied the parties did not move in to the same premises and resume their relationship until [January] 2018. I am satisfied that the parties resumed contact with each other during 2017, but did not resume the marital relationship in 2017.

14. For these reasons, I am satisfied that the ground for the cancellation of the visa, namely that circumstances for the grant of the visa did not exist, remained at the time of the Department’s decision to cancel the visa, and remained of the existence of the visa until its expiry on 15 December 2017.  The applicant was not the spouse, or a member of the family unit of the holder of the student visa, and was not entitled to the dependent student visa at any time after mid November 2016, until [Ms A’s] student visa ceased.

15. 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 visa should be cancelled.

    Consideration of discretion

16. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

17. The purpose of the applicant’s travel and stay in Australia, including any compelling need to remain in Australia:-  the purpose of the applicant’s stay was to be as the spouse of [Ms A] who was studying [Course 1]. I accept that the parties have reconciled. I also accept that [Ms A] has completed her [course], but has been unable to find work [in Occupation 1], and is currently [employed].  The purpose for the grant of the visa is the [course] which is completed. I have considered that the applicant was not a member of [Ms A’s] family unit from mid-November until the time that she completed her studies and the student visa expired at the end of 2017.  I am satisfied the student visa has ceased, and [Ms A] is not the holder of another student visa, but is the holder of another type of temporary visa. The applicant gave evidence that he wishes to be with [Ms A], either in Australia, or she would return to his home country with him.  To some extent, if the applicant wishes to remain in Australia with his wife, and can no longer do so as a dependent of his wife as a student, this is more correctly expressed as the applicant would need to apply for a further visa, to remain in Australia.  As the purpose of the applicant’s student visa was to be with his wife while she studied, has now ceased, I give this no weight in the applicant’s favour.  As the applicant wishes to remain in Australia to be with his wife as her dependent while she is the holder of a visa, in the future on the basis of an undisclosed or potential visa application, I give this limited weight in the applicant’s favour.

18. The extent of compliance with visa conditions :- There is no evidence before me that the applicant has not complied with visa conditions, and I give this some weight in the applicant’s favour.

19. The degree of hardship that may be caused :- The applicant stated he thought [Ms A] would return with him if he was required to depart Australia. Alternatively, the applicant also stated to be separated would cause them both hardship. [Ms A] also stated she would suffer hardship if they were separated, as she relies on the applicant emotionally, and he is good support for her. [Ms A] stated she has two siblings in [State 1], and one lives close by. She stated they have been through a lot, and their relationship is back on track. [Ms A] gave evidence that she would suffer emotionally if the applicant’s visa was cancelled, because of her emotional reliance upon him.  She stated she is trying to find work [in Occupation 1]. I am satisfied that the applicant has not worked since he has not held a visa, and [Ms A] is currently employed, and looking for work in her professional qualification. I am satisfied the parties lived apart for over 14 months from [November] 2016 until [January] 2018.  There is no evidence before me that either the applicant or [Ms A] endured hardship during this period of separation.

20. I am satisfied based on the evidence available to me that both the applicant and [Ms A] can live apart without enduring hardship. I am satisfied that [Ms A] has two family members who reside in [State 1], and could receive some family support.  I am satisfied the applicant has not worked since the visa was cancelled, and has not provided any financial support to [Ms A] since that time. For these reasons, I am satisfied that [Ms A] would not suffer financial, hardship if she chose to remain in Australia. Based on the evidence before me that [Ms A] has family members in Australia, has lived apart from the applicant for a prolonged period since their marriage, and can choose whether to remain in Australia, I am satisfied any emotional or psychological consequences she may experience would be limited. Based on the evidence available to me I am not satisfied that [Ms A] would experience any significant degree of emotional or psychological hardship if the applicant’s visa is cancelled. For the above reasons, I am satisfied the applicant could return to his home country without suffering financial, emotional or psychological hardship, if [Ms A] chose not to return with him. However, I accept that the applicant and [Ms A] have worked to re-establish their relationship, and after they have reconciled, and I give the effects of further separation to both the applicant and [Ms A], some weight in the applicant’s favour. 

21. Circumstances in which the ground for cancellation arose :- the applicant was entitled to the visa as the spouse of [Ms A], who was the holder of a student visa, and who was studying [Course 1]. The applicant and [Ms A] were married in October 2014, but they separated in mid-November 2016, and [Ms A] notified the Department. I find that the evidence is clear that the parties separated. The reasons for the separation have not been explained to the tribunal. It is clear that the parties took a substantial period to reconcile, and that there was no reconciliation prior to the expiration of [Ms A’s] student visa.   The applicant and [Ms A] both stated the circumstances of the breakdown of the relationship did not involve drugs, alcohol, or mental health issues. The applicant and [Ms A] stated in the hearing that the separation was temporary, but this is not consistent with the evidence of [Ms A’s] advice to the Department of their change of circumstances, of the months of no contact, of the months they claim were involved to work through the issues, and the months they state it took to find a place to live together. The breakdown of the relationship outlasted the length of the student visa which is the subject of this review.  I give the evidence of the circumstances in which the ground for cancellation arose weight in favour of the cancellation of the visa.

22. Past and present behaviour of the applicant to the Department:- There is no evidence of any lack of co-operation from the applicant to the Department.  I note the applicant did not respond to the Notice, but the applicant advised he received the notice and was overwhelmed by other things happening in his life at the time. I give this some weight in the applicant’s favour.

23. Consequential cancellations under s.140:- there is no evidence that there would be any consequential cancellations if the applicant’s visa is cancelled and I give this no weight.

24. Mandatory legal consequences:- there would be mandatory legal consequences, upon cancellation of the visa. I have noted that the visa under consideration has already expired. The applicant would consequently become unlawful, and subject to the possibility of detention, although he would also be eligible to apply for a bridging visa.   The applicant would be subject to the provision of s.48 of the Act which limits the applications for other visas the applicant would otherwise be entitled to apply for whilst still in Australia. I give this some weight in the applicant’s favour.

25. Any international obligations:- there is no evidence that the cancellation of the applicant’s visa engages any of Australia’s international obligations.  [Ms A] is the applicant’s wife and is not an Australian citizen or Australian permanent resident.  If the applicant is required to leave Australia because his visa is cancelled, [Ms A] has no claims on Australia to protect their spousal unity. I give this no weight in the applicant’s favour.

26. I have carefully assessed the relevant factors, including the matters raised by the applicant. The cancellation of the applicant’s visa is based on the relationship breakdown, as the applicant was no longer a member of [Ms A’s] family unit, as required to be the holder of the dependent student visa.  Based on the evidence of the applicant and [Ms A], the relationship broke down from mid-November 2016 until after the student visa ceased on 15 December 2017. In consideration of whether the discretion should be exercised in relation to the cancellation of the visa, I have given weight to the factors that I have assessed in the applicant’s favour, including that the applicant and [Ms A] have reconciled in January 2018, and any future separation may cause them further distress. However, on balance, I have concluded, the circumstances in which the ground for the cancellation arose outweighs the consideration of the other factors.  I am satisfied that the factors in favour of the cancellation of the visa outweigh the other considerations.

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

    DECISION

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

    Margie Bourke
    Member