1729341 (Migration)

[2018] AATA 4209

1729341 (Migration) [2018] AATA 4209 (27 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1729341

MEMBER:Kira Raif

DATE:27 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 476 (Skilled - Recognised Graduate) visa.

Statement made on 27 August 2018 at 12:05pm

CATCHWORDS

MIGRATION – cancellation – Skilled (Provisional) (Class VF) visa – Subclass 476 (Skilled – Recognised Graduate) – visa grant based on a circumstance that no longer exists – secondary visa holder dependent upon her spouse – spousal relationship ceased prior to arrival in Australia – plans for study and permanent stay – employment in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 48A, 116

CASES

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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to s378 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 16 November 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 476 (Skilled - Recognised Graduate) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of Iran born in [year]. She was granted the Skilled visa as a member of the family unit of her then partner. The visa was to be in effect until September 2018. On 10 August 2017 the applicant was issued with the 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 15 November 2017. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 27 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. 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.

   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 the Skilled visa in July 2016 on the basis of being the spouse of [her former husband]. In November 2016 the Department was advised that the applicant was no longer in a spousal relationship with [her former husband]. The applicant entered Australia in March 2017 and in September 2017 the Department confirmed that the applicant and [her former husband] were separated and not residing together in a spousal relationship.

7. In her written response to the NOICC the applicant states that even though her spouse advised the Department that they had separated before coming to Australia, her visa remained valid and she was happy to be able to come to Australia. The applicant states that she was a [student] but quit [those studies] in order to be able to study in Australia. She also quit her job and sold everything she had and she does not know how to come back in that situation. If she knew that her visa might be cancelled, she would have never come to Australia.

8. The applicant does not dispute the fact that her relationship with her spouse, who was the primary visa applicant, had ended. In oral evidence to the Tribunal the applicant confirmed that her relationship with [her former husband] ended before her entry to Australia.

9. Having regard to the applicant’s own 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 [her former husband]. The Tribunal finds there is no longer any mutual commitment between the applicant and [her former husband]. The Tribunal finds that the applicant is not a spouse, nor a de facto partner of [her former husband]. 

10. As the applicant was granted the visa on the basis of being a spouse and a member of the family unit of [her former husband], 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. 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 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’.

    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 visa is a temporary visa which enables the visa holder to remain in Australia for a period of two years. The applicant was granted the visa as a secondary applicant. The purpose of her visa was to enable the applicant to remain with her partner. However, that relationship is no longer in existence. 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. The applicant told the Tribunal that she came to Australia to have a better life and to study medicine and she has nothing to return to. The Tribunal finds that evidence problematic, given that the visa she was granted is a temporary visa valid for two years only. That visa does not allow the applicant permanent or even long term residence in Australia. That visa was never intended to allow the applicant permanent stay in Australia and, if it was not cancelled, the visa was due to expire in September 2018.

    The extent of compliance with visa conditions

14. There are no known instances of non-compliance with visa conditions.

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

15. The applicant claims in her written response to the NOICC that she had given up everything she had in Iran in order to come to Australia and did not know that her visa could be cancelled. The applicant states that she cannot return to her country. The applicant refers to her desire to remain in Australia and study in Australia. The applicant told the Tribunal that she gave up her job and her course and when she came to Australia she has no friends and nobody to support her. The Tribunal is not convinced that at least some of these hardships would result from the cancellation of the visa, rather than the applicant’s decision to travel to Australia.

16. The applicant states that she did not know her visa could be cancelled. However, the Tribunal notes that the applicant made the application on the basis of being the spouse of her partner. There is no suggestion that the applicant herself sought to meet the primary criteria for visa grant or that she was granted the visa as the primary applicant. In such circumstances, even if the applicant was entirely unfamiliar with the Australian laws as she claims, the applicant may have realised that she may no longer be entitled to the visa if the very basis for the visa grant – her relationship with her spouse – ceased to exist.

17. The applicant refers to her settlement in Australia. The applicant states in her response to the NOICC that she has a part-time job, is undertaking English stud and intends to attend university. She wants to remain in Australia for the duration of her visa. The applicant provided a number of documents concerning her work and study in Australia. In her evidence to the Tribunal the applicant states that she had no money and no support. As a result of her visa being cancelled, she lost her job and had financial hardship although the applicant states that she has been given permission to work on her present Bridging visa and is now working. The Tribunal notes that at the time of the Tribunal’s decision, there is very little time left on the Skilled visa, which was due to expire in September 2018. Unless the applicant pursues other options, she would not be entitled to remain in Australia or work in Australia. The Tribunal also notes that the applicant can seek other visas and her evidence to the Tribunal is that she has made an application for another visa in February 2018 and holds a Bridging visa with work rights as a result. The Tribunal is of the view that there would be little practical difference to the applicant’s circumstances if her skilled visa is cancelled.

18. The applicant told the Tribunal that she wants to apply for other visas but cannot do that if her visa is cancelled. The Tribunal is mindful that about two months passed from the time the applicant received the NOICC to the time her visa was cancelled. The applicant had the opportunity to seek other visas but had not done that. The Tribunal acknowledges that the cancellation of the visa would significantly limit the applicant’s options in terms of future visa applications and the Tribunal accepts that may cause hardship to the applicant.

19. The applicant referred to being threatened by her family in Iran. If that was true, the Tribunal does not consider that the applicant is being threatened because of the cancellation of her visa, as opposed to her decision to travel to Australia. The Tribunal does not consider that the threats occur as a result of the visa cancellation.

20. Overall, the Tribunal accepts that considerable degree of hardship would be caused to the applicant as a result of her visa being cancelled, most significantly because the applicant will have limited options in making other visa applications in Australia. However, the Tribunal is mindful that the visa in question is a temporary visa. The applicant has not held a permanent visa, nor could she expect to have been granted one. In the absence of any permission to remain in Australia permanently, it is unclear to the Tribunal why the applicant would give everything up to come to Australia. As a holder of a temporary visa, the applicant would have been expected to return to her home country and would be well aware of the fact that she was only holding a two year temporary visa. Even if the applicant intended to apply for another visa in Australia, there could be no expectation that she would be granted one and the Tribunal is mindful that there is no evidence that the applicant did make another visa application after entering Australia and before her visa was cancelled.

21. The Tribunal also notes that the relationship broke down several months before the applicant’s entry to Australia. Again, the applicant made the decision to travel to Australia, and to give everything up in Iran as she claims, even though she was aware that the basis on which she was granted the visa ceased to exist. The applicant told the Tribunal she was unfamiliar with the Australian law but in the Tribunal’s view, she had the opportunity to seek advice and information. The Tribunal finds that the applicant had every choice not to travel to Australia and not to make permanent arrangements to which she now refers, given her circumstances.

22. The applicant told the Tribunal that she is not happy about having to seek a protection visa and her preference would be to get a Student visa and a permanent visa. The Tribunal is not convinced that having to make an application for a protection visa  constitutes hardship.

23. The Tribunal accepts that hardship may be caused to the applicant as a result of her visa being cancelled but the Tribunal considers much of such hardship would be caused by the decision that the applicant herself had made, which are not consistent with the nature of the visa which she was granted. That is, the applicant’s evidence is that she had no intention of returning to Iran, despite the fact that she was only granted a temporary visa, contradicts the purpose of her 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

24. The cancellation is being considered because of relationship breakdown with the primary visa holder. The applicant told the Tribunal there was no family violence involved in the relationship. She said she had a ‘temporary’ marriage with her partner for a period of one year. Her family did not know about the relationship and her family was unaware of her intention to leave Iran. Now that they are aware, her family are making threats against her.  

25. The applicant told the Tribunal that the Department received information about the breakdown of the relationship before she entered Australia and she should have been told then that her visa would be cancelled. She stayed in Australia for six months without knowing what would happen with her visa. The Tribunal accepts that it may have been preferable if the applicant was informed about the possibility of the visa cancellation before her entry to Australia.

    Past and present behaviour of the visa holder towards the department

26. Nothing adverse is known about the past and present behaviour of the visa holder towards the Department. The applicant told the Tribunal that her husband informed the Department about the breakdown of the relationship but her own English was not good enough to communicate with the Department.

    Whether there would be consequential cancellations under s.140

27. 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

28. 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. Her evidence to the Tribunal is that she has already made an application for another visa.

    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

29. The applicant repeatedly told the Tribunal that she cannot return to Iran because her life would be at risk. The applicant told the Tribunal that because there is a threat to her life in Iran, she intends to apply for the protection visa. She subsequently told the Tribunal that she has made the application in February 2018.

30. 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 and her evidence to the Tribunal is that she has made an application. Thus, whether or not her present visa remains cancelled, the applicant’s claims for Australia’s protection will be considered through a separate process. For that reason, the Tribunal is satisfied Australia’s non-refoulement obligations would not be breached as a result of the visa being cancelled.

31. There are no children affected by the cancellation.

32. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the decision to grant the visa was based, wholly or partly, on a particular fact or circumstances that is no longer the case or that no longer exists. The Tribunal has formed the view that there are grounds for cancelling the visa.

33. The Tribunal acknowledges that the applicant has now been living in Australia for approximately one a half years and has taken steps to settle in Australia The Tribunal acknowledges her claim that she has “given up everything” to be in Australia. The Tribunal accepts that the cancellation of the visa limits the applicant’s future visa options and employment and study opportunities. The Tribunal accepts that the applicant may be unable to seek another visa of her choice while she remains in Australia as a result of the cancellation. The Tribunal accepts that the cancellation of the visa would cause hardship to the applicant.

34. Nothing adverse is known about the applicant’s compliance with visa conditions and her past dealings with the Department. There are no consequential cancellations. There are no children affected by the cancellation. As for the applicant’s claims that she is owed protection, these would be assessed as part of her existing application for the protection visa, which remains unresolved and which would not be affected by the present cancellation.

35. The Tribunal places significant weight on the fact that the visa granted to the applicant is a temporary visa which was due to expire in September 2018. While the applicant claims she intended to apply for other visas and ultimately permanent residence, there can be no guarantees that the applicant would be granted another visa. The visa in question is a temporary one and any hardship to which the applicant refers, such as establishing her life in Australia and giving up on all she had in Iran, were caused by the applicant’s expectation that she would continue to live in Australia permanently and not the cancellation of the visa. While the applicant claims she did not intend to return to Iran, she has not been granted a permanent visa and it was never the intention of the Skilled visa she held to enable the applicant to remain in Australia on a long term basis.

36. The Tribunal is mindful that the applicant’s entitlement to the visa was based on her relationship with her partner and that relationship ended before the applicant entered Australia. The applicant does not suggest that she would have otherwise met the criteria for visa grant. The applicant is no longer able to fulfil the purpose of her travel to and stay in Australia and her visa was liable for cancellation before her first entry to Australia.

37. The applicant has another visa application that is under consideration. That means that the cancellation of her Skilled visa would not result in the applicant being required to leave Australia and there would be little practical difference in the applicant’s circumstances if her visa is cancelled because the applicant told the Tribunal she holds a Bridging visa and has permission to work. The Tribunal has formed the view that Australia’s protection obligations would not be breached as a result of the cancellation.

1. 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 476 (Skilled - Recognised Graduate) visa.

   Kira Raif
   Senior Member