Abbas (Migration)

[2020] AATA 5996

Abbas (Migration) [2020] AATA 5996 (1 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ali Abbas

CASE NUMBER:  2001104

HOME AFFAIRS REFERENCE(S):          BCC2019/3503455

MEMBER:Vanessa Plain

DATE:1 December 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 1 December 2020 at 11:30am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – a circumstance which permitted the grant of the visa no longer existed – applicant was no longer in a relationship with spouse – not a member of the family unit of primary visa holder – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5F, 116,
Migration Regulations 1994 (Cth), r 1.12

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 January 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(a) of the Act on the basis that a circumstance which permitted the grant of the visa no longer exists. 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 24 July 2020 to give evidence and present arguments.

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?

   The ground for cancellation considered in by the delegate was as follows:

   Section 116 - Power to cancel

   (1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   (a)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;

   (2)The Minister is not to cancel a visa under subsection (1), (1AA), (1AB) or (1AC) if there exist prescribed circumstances in which a visa is not to be cancelled.

   (3)If the Minister may cancel a visa under subsection (1), (1AA), (1AB) or (1AC), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

6. A visa may be cancelled under s.116(1)(a) if the Minister is satisfied the circumstances which permitted the grant of the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or no longer exists.

   Particulars of the ground for cancellation

7. Information before the Department appeared to indicate that the applicant was no longer in a relationship with Amina Khalid (Ms Khalid). 

8. The applicant’s visa was granted because the application met, among other criteria, the secondary criteria for the visa on the basis that the applicant was a member of the family unit of Ms Khalid, as prescribed by paragraph (2)(a) of regulation 1.12 of the Migration Regulations 1994 (the Regulations), which provides as follows:

   (2)A person is a member of the family unit of another person (the family head) if the person:

   (a)is a spouse or de facto partner of the family head; or
   
   

   To be a member of the family unit of Ms Khalid prescribed by reg 1.12(2)(a), the applicant needed to continue to be either a spouse or de-facto partner of that person as defined respectively by sections 5F and 5CB of the Act, which state (in part):

   s5F ‘Spouse’

   (1)For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.

   (2)For the purposes of subsection (1), persons are in a married relationship if:

   (a)they are married to each other under a marriage that is valid for the purposes of this Act; and

   (b)they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and

   (c)the relationship between them is genuine and continuing; and

   (d)they:

   (i)live together; or

   (ii)do not live separately and apart on a permanent basis. 1...]

   s5CB ‘De facto partner’

   
   De facto partners

   (1)For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.

   De facto relationship

   (2)For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:

   (a)they have a mutual commitment to a shared life to the exclusion of all others; and

   (b)     the relationship between them is genuine and continuing; and

   (c)     they:

   (i)live together; or

   (ii)do not live separately and apart on a permanent basis; and

   (e)they are not related by family (see subsection (4)).
   1...]

9. The applicant was granted the secondary visa on the basis that he was a member of the family unit of the primary visa holder as he was in a genuine and continuing relationship with Ms Khalid. Information before the delegate indicated that the applicant ceased to be either a spouse or a de-facto partner of that person.  It therefore appeared that the applicant ceased to be a member of their family unit as prescribed by reg 1.12(2)(a).

10. Based on this information, there appeared to be grounds for cancelling the applicant’s visa under s 116 (1)(a) of the Act because it appeared that a circumstance which permitted the grant of the visa no longer existed.

11. On 17 December 2019 the applicant was sent a Notice of Intention to Consider Cancellation of visa.  He responded in writing on 17 December 2019 and 24 December 2019.  He did not admit that there are grounds for cancellation and provided the following reasons, as summarised by the Delegate:

    ·‘He acknowledges that he and Amina Khalid are not living together, but he disputes that they are separated or divorced according to Sharia and Pakistan Law.’

    ·‘He states that Amina Khalid has applied for divorce in a marriage court. When the decision is made, a period of 90 days starts for further reconciliation between parties. Once this period has passed, a document is issued by the government municipal council that the marriage has been dissolved.’

    ·‘He states he has not received any notification regarding the completion of divorce, and that according to his religion and upbringing he is bound to support her as a husband whilst they are married, even if they are living separately.’

12. At the hearing, the applicant acknowledged that he and his wife have never lived together since he arrived in Australia in 2019.  He stated further that he still loves his wife and he would like more time to try and reconcile, because he is going to become a doctor and he hopes that this achievement on his part will help his wife see the mistake she had made. 

13. On the basis of the above evidence, the Tribunal is satisfied that the ground for cancellation in s.116(1)(a) exists, because the applicant is no longer a member of the family unit as prescribed by regulation 1.12 and therefore the circumstance for which the visa was granted no longer exists. The Tribunal is satisfied that the applicant no longer meets the requirements of subclause (2)(b), (2)(c) and (2)(d) under the definition of spouse at section 5F of the Act, as the Tribunal is not satisfied that they have a mutual commitment to a shared life as a married couple to the exclusion of all others, that their relationship is genuine and continuing, and that they live together or do not live separately or apart on a permanent basis. Similarly, the Tribunal is satisfied the applicant does not meet subclauses (2)(a), (2)(b) and (2)(c) under the definition of de-facto partner at section 5CB of the Act.

    Consideration of discretion

14. 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’.

15. The applicant provided reasons for why his visa should not be cancelled, as summarised by the Delegate (verbatim) as follows:

    ·‘He left his post graduate specialist degree in medicine and his job as a medical officer to come to Australia to support his wife with her PhD.’

    ·‘He planned to get his registration to practice medicine in Australia as a general practitioner. He sat the required examination for this registration on 22 November 2019. He always planned to live here with his wife serving as a doctor whilst she was completing her PhD.’

    ·‘He would not be able to recommence his post graduate training program should he return to Pakistan, and would not have a job to return to.’

    ·‘He has lost respect of his family and relatives because they did not approve of his marriage as they wanted him to marry someone else.’

    ·‘He has hope of reconciliation with his wife, and is optimistic that his relationship can return to how it was previously.’

16. At the hearing, the applicant provided the following sworn evidence:

    ·He and his wife married in Lahore, Pakistan on 4 February 2017.  He was doing post graduate work and his wife was did a PhD in child psychology.  He was a doctor in his home country.

    ·In May 2019, his wife became unhappy and they stopped talking, but he still decided to come to Australia. He is a Shia Muslim and his wife is a Sunni Muslim, which caused his some problems in his family as they didn’t approve of the marriage. 

    ·The applicant arrived in Australia in 2019 and he has never lived with his wife since arriving in the country.  IN February 2020 his wife was unfaithful and there was in incident with the man she was seeing at the time.

    ·He still loves his wife and hopes for a reconciliation, he is training to become a doctor and qualify as a doctor in Australia.  He hopes this will show his wife that she has made a mistake. 

    ·He wants more time in Australia so that he may take the AMC exam, which has been postponed due to COVID-19.  The AMC is going to reschedule the clinical exams shortly.  The clinical exam is the other reason that he doesn’t want his visa cancelled, apart from hoping that he and his wife will reconcile.  He just wants time to finish his AMC exam and then he will return to his home country.

17. The applicant provided the following documents in support of his application:

    ·Australian Medical Council letter dated 19 December 2019

    ·AMC CAT MCQ examination result

    ·AMC placement in clinical examination

    ·AMC email dated 23 June 2020 – clinical examinations postponed (COVID-19).

    Purpose of applicant’s travel to and stay in Australia

18. The applicant was granted the dependant subsequent entrant Student visa to accompany his wife, Ms Khalid, with her studies in Australia.

19. The Tribunal is satisfied based upon the evidence above that the applicant is no longer in a genuine and continuing relationship with Ms Khalid.  The Tribunal acknowledges the applicant’s statement that he wishes to reconcile with his wife, however, there is no objective evidence before the Tribunal of a reconciliation at the time of hearing.  

20. As the applicant has ceased to be the spouse of the primary visa holder, the Tribunal considers that the purpose for which the visa was granted has ended and there is no legitimate immigration reason for the applicant to continue to hold the dependant student visa.

21. The Tribunal affords this consideration weight in favour of cancelling the visa.

    The extent of compliance with visa conditions

22. There is no evidence before the Tribunal to suggest that the applicant has breached any of his visa conditions. that applied to his previous visas.  However, the applicant is in breach of condition 8516, as he is no longer a person who satisfies the secondary criteria for the grant of the visa.

23. The Tribunal gives this consideration a little weight against cancelling the applicant’s visa.

    The degree of hardship that may be caused to the visa holder and any family members

24. The applicant informed the Tribunal that he wishes to qualify as a doctor by completing his AMC exams in Australia and then return to his home country.  The exams have been postponed due to COVID-19. 

25. Further , the applicant informed the Delegate that ‘should he return to Pakistan, he would not be able to recommence the post graduate training program that he left to be with his wife in Australia, and would not have a job to return to.’ He was also concerned about returning to his family, who did not approve of his marriage to his wife.

26. The Tribunal acknowledges that the applicant will be caused emotional and psychological hardship if his visa is cancelled and that returning home to circumstances without employment will be financially challenging. However, the Tribunal notes that no exclusion period will be imposed upon the applicant if his visa is cancelled under these grounds, so he will not be prevented from being granted another appropriate visa for return to Australia, should he meet the relevant criteria.

27. The Tribunal gives these considerations some weight against cancelling the visa. 

    The circumstances in which the ground for cancellation arose

28. The grounds for cancellation arose when the applicant ceased to be in a continuing relationship with the primary visa holder, his spouse, Ms Khalid.

29. Taking into account the evidence of the applicant at hearing and the matters raised by him in his response to the NOICC, the Tribunal cannot be satisfied that there are extenuating circumstances in this case that were beyond the applicant’s control that led to the ground for cancellation arising.

30. The Tribunal affords this consideration significant weight in favour of cancelling the visa.

    The visa holder’s past and present behaviour towards the Department

31. The applicant responded promptly to the NOICC and there is no evidence before the Tribunal to suggest that the applicant has been uncooperative with the Department or departmental staff.

32. The Tribunal gives this consideration a little weight against cancelling the visa.

    Whether there are any persons in Australia whose visas would, or may, be cancelled under s140

33. The circumstances of this case are not such that any person’s visa would be consequentially cancelled under s140 of the Act.  The Tribunal therefore does not give this factor any weight for or against a decision to cancel the visa for this consideration.

    Legal consequences of a decision to cancel the visa

34. If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart Australia. The applicant would also be affected by section 48 of the Act, which may prevent him from applying for certain visas while in Australia.

35. The applicant will be eligible to apply for a Bridging Visa E, may allow him to remain in Australia momentarily while he resolves his personal circumstances. 

36. The cancellation of the applicant’s visa is not subject to Public Interest Criterion 4013, which would otherwise exclude him from being granted a visa for a specific period of time in the future. By contrast, the applicant would be eligible to apply and be granted further visas without penalty, should he meet the required criteria.

37. These are mandatory and intended consequences of the legislation and given that the circumstances giving rise to the breach were not due to extenuating circumstances beyond the control of the applicant, the Tribunal does not consider this to be manifestly unfair and the Tribunal therefore gives this consideration some weight in favour of cancelling the visa.

    Australia’s international obligations

38. There is no information before the Tribunal to indicate that the applicant has children in Australia, nor whether cancelling the visa would lead to a breach of Australia’s non-refoulement obligations. As there is no information before the Tribunal, the Tribunal is unable to give any weight for or against cancelling the visa for this consideration.

    Any other relevant matters

39. There are no other relevant matters to take into consideration.  

40. Although the matters set out above do not reveal any bad faith on the part of the applicant, it is clear based on all the evidence set out above, that the reason for the breach of the visa condition was not due to extenuating circumstances beyond the control of the applicant. 

41. It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa being cancelled and I so find.

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

    DECISION

42. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Vanessa Plain
    Member