1714324 (Migration)

[2019] AATA 4627

1714324 (Migration) [2019] AATA 4627 (21 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1714324

MEMBER:Kira Raif

DATE:21 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

Statement made on 21 February 2019 at 4:48pm

CATCHWORDS

MIGRATION – cancellation – Skilled Regional Sponsored (Provisional) visa – Subclass 489 Skilled – Regional (Provisional) – member of the family unit – relationship ceased – emotional hardship – seeking permanent residence – relocation for employment – specified qualification type – decision under review affirmed     

LEGISLATION

Migration Act 1958, s 116

CASES

BCR16 v MIBP (2017) 248 FCR 456
COT15 v MIBP (No 1) (2015) 236 FCR 148
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

1. This is an application for review of a decision dated 3 July 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of India born in [year]. She was granted the Class SP Skilled – Regional (Temporary) visa on 14 October 2015. The visa was to be in effect until 14 October 2019. On 26 May 2017 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) under s.116(1)(a) of the Act because the delegate formed the view that the decision to grant the visa to the applicant was based on a fact or circumstance that no longer existed. The applicant provided a written response to the NOICC and her visa was cancelled on 3 July 2017. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 13 February 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. 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.

5. 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. 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. A change in the decision-maker’s state of mind (about whether they are satisfied a visa criterion is met) was not a basis for cancelling a visa on that ground: per French and North JJ at [48]-[56]).

   Does the ground for cancellation exist?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted a Skilled – Regional (Temporary) visa in October 2015. The visa was to be in effect until October 2019. The applicant was granted the visa on the basis of being a secondary applicant, and a member of the family unit of [Mr A]. The applicant met the secondary criteria and r.1.12 as a spouse of the primary visa applicant.

7. On 16 May 2016 the Department received advice that the applicant’s relationship with [Mr A] had broken down and that they were no longer in a spousal relationship. In her written response to the NOICC the applicant concedes that there are grounds for the visa to be cancelled under s.116(1)(a) because her visa was granted on the basis of being a family member of [Mr A]’s and that relationship was no longer in existence. The applicant notes that she was the one who had informed the Department about the changes in her circumstances.

8. The applicant confirmed in oral evidence to the Tribunal that her relationship with her former husband ended and that he has filed for divorce. Having regard to the applicant’s evidence and the information set out in the primary decision concerning the breakdown of the relationship, the Tribunal finds that the applicant is no longer in a spousal relationship with [Mr A]. The Tribunal finds there is no longer any mutual commitment between the applicant and [Mr A]. The Tribunal finds that the applicant is not a spouse, nor a de facto partner of [Mr A]. 

9. As the applicant was granted the visa on the basis of being a spouse and a member of the family unit of [Mr A], the Tribunal finds that this fact or circumstance no longer exists. The Tribunal finds 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 that no longer exists. The Tribunal finds that there are grounds to cancel the visa under s.116(1)(a) of the Act.

10. 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

11. There are no matters specified in the Act or Migration Regulations 1994 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’.

    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

12. The Skilled – Regional (Temporary) visa is a temporary visa which enables the visa holder to remain in Australia for a period of four years. The applicant was granted the visa as a secondary applicant. The purpose of that visa was to enable the applicant to remain with her partner, however, that relationship is no longer in existence. The applicant is no longer in a spousal relationship and no longer resides in a regional area. The Tribunal finds that the applicant is not able to fulfil the purpose of her visa because she is no longer in a relationship with the primary visa holder.

13. In her submission to the Tribunal the applicant states that since the breakdown of her relationship, she relocated from South Australia to NSW and established a new life for herself. She has a support network of friends and family. The applicant states that while the purpose of her stay has changed, she found a new purpose for her stay in Australia, and that is to continue to build her life here. The Tribunal is mindful, however, that the visa in question in a temporary visa. It does not, and nor is it designed to, provide the applicant with the right to remain in Australia permanently or even long term. The visa, if not cancelled, would have expired at the end of 2019. The Tribunal does not consider that the purpose of the visa which the applicant held is to enable her to build her life in Australia.

14. The applicant presented a number of medical reports and other evidence about her present circumstances. This evidence is addressed more fully below. The applicant claims that her departure from Australia would have an adverse effect on her health and well-being. The Tribunal accepts that the applicant is receiving support in Australia although the applicant has not established to the satisfaction of the Tribunal that she would be unable to receive adequate support in her own country. Given the temporary nature of the visa, and its short term duration if not cancelled, the Tribunal does not consider the applicant’s circumstances establish that the applicant has a compelling need to remain in Australia.

    The extent of compliance with visa conditions

15. There are no known instances of non-compliance with visa conditions. The applicant states in her submissions to the Tribunal that even during the time when she had no permission to work, she complied with the visa conditions and had not worked, which shows her character. The Tribunal does not consider that the applicant’s character is relevant in assessing the extent of the applicant’s compliance with visa conditions.

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

16. In her written submission to the delegate, the applicant refers to the hardship she would experience as a result of the cancellation. The applicant states that she has made herself independent and self-sufficient and built a life for herself. She has been recovering from the emotional turmoil after an abusive relationship and has been offered a job opportunity, which will be denied if her visa is cancelled. If her visa is cancelled, she would have to return to India and all the progress she has made in terms of independence and improving her mental health would be for nothing. Further, she would have to return to India to the social stigma and social prejudice of being a divorced and separated woman and would be left out from the community. The applicant provided to the Tribunal a number of medical and psychological reports concerning her condition and treatment. The Tribunal accepts the applicant’s evidence, as well as the medical evidence, although the Tribunal finds these submissions problematic in light of the fact that the visa in question is a temporary visa only. Unless the applicant makes another visa application (which she may be able to do irrespective of the present cancellation) and is granted another visa, the applicant would be expected to leave the country before her visa expires in October 2019. To state that the applicant cannot return to India suggests that the applicant never intended to be a temporary entrant to Australia, which is the basis of the visa she held.

17. In her written submission to the Tribunal the applicant refers to the family violence she experienced during her relationship. The applicant provided evidence and the Tribunal accepts the applicant’s claims. The applicant states that as a result of domestic abuse, she experienced acute symptoms of distress and suicidal ideation. The applicant states that her return to India as a divorcee would affect her parents’ social status and also the applicant’s mental health. The applicant states that the breakdown of the relationship was beyond her control and it was a traumatic experience. The applicant repeated these claims in oral evidence. The Tribunal accepts that the cancellation of the visa may cause considerable hardship to the applicant, although as noted elsewhere, the visa in question is a temporary visa and would require the applicant to return to India before its expiry, unless she is granted another visa.

18. The applicant states that she was meeting the requirements to make the application for a permanent visa due to her regional employment but since the cancellation of her visa, this opportunity has been ‘taken away’ from her. This was another setback and the loss of opportunity to apply for a permanent visa based on regional residence is a relevant factor. The Tribunal is of the view, however, that the applicant’s inability to apply for a regional permanent visa is due to her decision to relocate to a different area that is not a regional area, and not due to the cancellation of her visa. While the Tribunal acknowledges the applicant’s reasons why she decided to settle in NSW, it is the consequence of that decision that the applicant may have lost the opportunity to work in a regional area and meet the requirements for the grant of a particular visa requiring such employment.

19. The applicant’s oral evidence to the Tribunal appears to contradict these claims. While in her written evidence the applicant refers to the loss of opportunity to meet the requirements for permanent residence, in oral evidence the applicant stated that she plans to apply for a Subclass 887 visa and argue that the circumstances around the cessation of her employment in a regional area should be considered. Although the legislation does not appear to allow any discretion in relation to the employment and residence requirement in cl.887.212 and cl. 887.213, it is not for this Tribunal to determine the applicant’s eligibility for the Subclass 887 visa. The Tribunal acknowledges that the applicant will be able to make a valid visa application for a Subclass 887 visa if the cancellation of her temporary visa is set aside but given the applicant’s written evidence about her lack of sufficient employment in a regional area, the Tribunal does not consider that the applicant has identified a genuine opportunity to be granted the permanent residence. As such, the Tribunal has considered the applicant’s claims in the context of the cancellation of the temporary visa which does not permit the applicant to remain in Australia beyond October 2019.

20. In oral evidence the applicant also referred to emotional hardship. She stated that at her age, she would be expected to have family and children. She cannot imagine what her life would be like if she had to return to India. She is afraid that she would lose her family because divorce is not accepted and their divorce has not been disclosed to anyone. The Tribunal is mindful that the social ostracism to which the applicant refers appears to be the result of the divorce, rather than the cancellation of the visa, although the Tribunal acknowledges that the cancellation of the visa may result in the applicant having to leave Australia and that may mean that the divorce would become known in the community.

    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

21. The cancellation is being considered because of relationship breakdown with the primary visa holder. The applicant outlined the circumstances in which the ground for cancellation arose in her written response to the NOICC. The applicant states that her marriage to [Mr A] was an arranged one but shortly after the marriage, her partner became very violent towards her. The applicant refers to psychological, sexual, financial, social and physical abuse perpetrated by her husband. The applicant described the circumstances of the relationship and the nature of abuse. The applicant states that after living in fear, she initiated the divorce process and moved to NSW to start a life free from abuse. The applicant states that these circumstances were not in her control and it is unconscionable to expect her to remain in an abusive relationship.

22. The applicant provided with her submission a psychological report supporting her claims and outlining the applicant’s condition and treatment. Further medical and psychological reports were subsequently presented to the Tribunal. The Tribunal accepts that evidence. The applicant also presented a number of witness statements and the Tribunal accepts the evidence in these statements.

23. In her written submission to the Tribunal of 6 February 2019 and her oral evidence, the applicant also outlined the reasons for the breakup of the relationship, stating that she was subjected to family violence. The applicant described the nature of her relationship and the family violence she had been subjected to. For the purpose of this review, the Tribunal accepts the applicant’s evidence. The Tribunal accepts, for the purpose of this review, that the relationship broke down due to the family violence. The Tribunal acknowledges the policy guidelines that a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.

    Past and present behaviour of the visa holder towards the Department

24. Nothing adverse is known about the past and present behaviour of the visa holder towards the Department.

    Whether there would be consequential cancellations under s.140

25. There are no consequential cancellations under s.140.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

26. If the applicant’s visa is cancelled and unless she is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that she will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, she may be subject to possible removal from Australia and she may be subject to an exclusion period in relation to some future visa applications. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention although there are limited types of visas for which the applicant may be able to apply onshore.

27. The applicant claims that as a consequence of her visa being cancelled she lost the opportunity to apply for the permanent visa. The applicant explained to the Tribunal that she did not meet the residence requirement but she decided to move to NSW because her sister lives here and her health is very poor, so she needed support. The applicant’s evidence suggests that the decision to move was the result of the applicant’s divorce and resultant poor health. The applicant claims that it was both due to the divorce and the visa cancellation but the Tribunal is not satisfied the cancellation of the visa was a primary, or even a significant consideration for the applicant’s decision to move from a regional area

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

28. There is no evidence that any children would be affected by the cancellation.

29. The applicant claims that if she has to return to India, she would face discrimination as a divorced or separated woman and would live in an unsafe environment; she would be left out from the community and would be socially isolated. As noted above, the Tribunal considers these submissions problematic given that the visa in question is a temporary visa which requires the applicant to leave the country before its expiry in October 2019.

30. The applicant provided a number of reasons she would be subject to harm if she were to return to India. However, the Tribunal does not consider that the applicant will be refouled if her visa is cancelled because the applicant is able to make an application for a protection visa if she believes Australia owes her protection obligations. The Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148 that cancellation of a visa is legally distinct from removal. There is nothing in the applicant’s circumstances which prevents these claims of harm being canvassed in a protection visa application. There is no suggestion that the applicant is prevented from validly applying for, or being granted, a protection visa by s.48A of the Act or because of any character issues or any other criteria: see BCR16 v MIBP (2017) 248 FCR 456. Thus, whether or not her present visa remains cancelled, the applicant’s claims for Australia’s protection can be considered through a separate process. For that reason, the Tribunal finds that Australia’s non-refoulement obligations would not be breached as a result of the visa being cancelled.

1. Nevertheless, the Tribunal accepts that the matters to which the applicant refers are likely to cause her and her family considerable hardship.

   Any other relevant matters

2. The applicant refers to the reasons for the breakdown of her relationship and the hardship she would experience if her visa remains cancelled, and if she is required to leave Australia. The Tribunal accepts that evidence.

3. The applicant told the Tribunal that if she were to return to India, she could not get stable employment because her family would expect her to marry. She will be treated badly by the community and society. The Tribunal acknowledges that evidence and is prepared to accept  that considerable hardship may be caused to the applicant if the applicant were to return to India but the Tribunal is mindful that the visa in question is a temporary visa only, which does not allow the applicant to remain in Australia permanently.

4. The applicant’s oral evidence to the Tribunal is that if she has to leave Australia, she would have to sacrifice everything. Her reputation with the family and the community is ruined. She would be subjected to poor treatment from her family. She would have to listen to whatever they direct her to do and she would be forced to marry someone. As noted elsewhere the Tribunal accepts that the cancellation of the visa leading to the applicant’s departure from Australia would cause hardship to the applicant.

5. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that there are grounds for cancelling the visa because the grant was based on a circumstance which no longer exists.

6. The Tribunal accepts the applicant’s evidence about the circumstances of the breakdown of her relationship. The Tribunal accepts that the applicant would experience considerable hardship as a result of the breakdown of her relationship and the cancellation of her visa and the Tribunal acknowledges the applicant’s evidence about the social repercussions for herself and her family as a result of her divorce and family violence. The Tribunal accepts the medical evidence concerning the applicant’s health and mental state and acknowledges that the applicant is receiving ongoing treatment. The Tribunal also accepts that the cancellation of the visa may have affected the applicant’s ability to seek a permanent visa in Australia, although the Tribunal acknowledges the applicant’s oral evidence that she intends to apply for a permanent Skilled visa.

7. There are no other known instances of non-compliance and breaches of the law. The Tribunal has formed the view that the cancellation would not be in breach of Australia’s international obligations. The Tribunal places weight on the policy that the visa should not be cancelled if the ground for cancellation arose due to factors beyond the applicant’s control. The Tribunal acknowledges that there are strong reasons why the visa should not be cancelled.

8. However, the Tribunal places weight on the fact that the visa was granted solely on the basis of the applicant being a member of the family unit of another person and she is no longer able to fulfil the purpose of her travel to Australia because the relationship has ended. While the Tribunal accepts that the breakdown of the relationship was beyond the applicant’s control and occurred due to family violence, the Tribunal is mindful that the applicant cannot fulfil the purpose of her travel to Australia by being with her partner, who met the primary criteria for visa grant. As for the applicant’s new purpose of remaining in Australia and establishing a life in Australia, the temporary visa in question is not a suitable avenue for that. The applicant must seek a visa that is more appropriate to her circumstances.

9. The Tribunal places considerable weight on the fact that the visa in question is a temporary visa with a limited period of validity. While the Tribunal accepts that the applicant prefers to establish a life in Australia and settle in this country and that she has a network of friends and relatives to support her here, the visa in question would not allow the applicant to live and settle in Australia and do any of the things she wants to do beyond quite a limited period of time that her visa would have been valid for. The applicant has not satisfied the Tribunal that there is a legitimate pathway for her to remain in Australia beyond the period of visa validity or to obtain permanent residence that she would be denied as a result of her visa being cancelled. Thus while the Tribunal accepts the entirety of the applicant’s claims, the applicant has not satisfied the Tribunal that the hardship she refers to and the various difficulties she describes that would be caused by the cancellation, would be removed or even minimised beyond a very short period, if the visa is reinstated. The Tribunal has formed the view that the temporal limitations on the visa in question and the very limited time that the visa would provide for the applicant to remain in Australia, outweigh other considerations.

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

    DECISION

11. The Tribunal affirms the decision to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

    Kira Raif
    Senior Member