Achille (Migration)

[2020] AATA 5010

Achille (Migration) [2020] AATA 5010 (9 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Calum James Achille

CASE NUMBER:  1922283

HOME AFFAIRS REFERENCE(S):          BCC2019/685335

MEMBER:Nicola Findson

DATE:9 September 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

Statement made on 09 September 2020 at 2:03pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – ground for cancellation – fact or circumstance no longer exist – member of the family unit – relationship breakdown with primary visa holder – consideration of discretion – no close family outside Australia – lodged an application for a Remaining Relative (Class BU) (Subclass 835) visa – processing time of approximately 50 years – enable applicant to await outcome of visa application onshore – degree of hardship – effect of cancellation – option of a Bridging Visa E – risk of losing work rights – convicted of an offence and sentenced to a six month term of imprisonment in 2009 – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 360

Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 August 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa under s.116 of the Migration Act 1958 (the Act).

2. A copy of the delegate’s decision record was provided to the Tribunal by the applicant for the purpose of the review. The delegate cancelled the visa under s.116(1)(a) on the basis that a circumstance which permitted the grant of the visa no longer existed.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant was represented in relation to the review by his registered migration agent.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

8. 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.

9. The delegate’s decision record states that the applicant was granted a Subclass 482 visa, having met the secondary criteria, because he was a member of the family unit of the primary visa holder, Ms Caroline Goujon. 

10. According to the decision record, on 7 June 2019, the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) as it had been informed that the applicant was no longer a member of Ms Goujon’s family unit.  The applicant responded to the NOICC on 24 June 2019, confirming that his relationship with Ms Goujon had “irrevocably broken down” and acknowledging that the basis for grant of his subclass 482 visa no longer existed. 

11. On the basis of the concession made to the Department, set out in the delegate’s decision record, the Tribunal finds that there has been a material change in the applicant’s circumstances which permitted the grant of the visa, being his relationship breakdown with Ms Goujon.

12. 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

13. 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’.

14. As outlined in the reasons below, the Tribunal has carefully considered the factors outlined in the Department’s policy, and all other matters otherwise known to it.  The Tribunal observes that the applicant’s representative provided a comprehensive written submission and accompanying supporting material to the Department in response to the NOICC, which it has had regard to.

    Purpose of the visa holder’s travel to and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

15. The Tribunal has considered the applicant’s purpose for remaining in Australia.  The information before the Tribunal indicates that the applicant was granted the Subclass 482 visa, as the secondary visa holder on 21 June 2018 with his de facto, Ms Goujon, being the primary visa holder.  A Subclass 482 visa is a temporary visa of limited duration, and the purpose of the applicant’s stay in Australia, when granted this visa, was to accompany Ms Goujon.  This purpose no longer exists as the applicant and Ms Goujon are no longer in a relationship.

16. However, the Tribunal has also taken into account that the applicant wishes to remain in Australia with his close family members - his mother, father and only sibling (his sister) – who are settled Australian citizens and permanent residents residing in Australia.  It is claimed that the applicant has no other close family outside Australia.  The information before the Tribunal indicates that the applicant and his family are extremely close and provide each other with emotional support.  The applicant also provides physical supportive care to his elderly and ailing parents. 

17. The applicant indicates that when it became clear his relationship with Ms Goujon could not be restored he immediately sought advice as to his visa options and on the basis of this advice, on 12 April 2019, lodged an application for a Remaining Relative (Class BU) (Subclass 835) visa.  The applicant indicates that the utility of his review application, if it is successful, is to enable the Subclass 482 visa to naturally cease, and then to await the outcome of his Remaining Relative visa application on a Bridging Visa A.

18. In this case, the Tribunal gives this factor some weight against the cancellation of the visa.

    Extent of compliance with visa conditions

19. According to the delegate’s decision record, there is no information before the Department indicating any previous non-compliance with visa conditions.    

20. The Tribunal has also considered the applicant’s submission that he has always been cooperative in his dealings with the Department and complied with the conditions of all visas he has held.  In addition, the Tribunal has considered the applicant’s submission that although not required to notify the Department of his relationship breakdown, he did in fact do so by lodging a Remaining Relative visa application.

21. The Tribunal gives this factor some weight against the cancellation of the visa.

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

22. The Tribunal has had regard to the evidence before it as to the hardship that may be caused if the visa is cancelled.  Specifically, the Tribunal recognises that the applicant has spent a considerable period of time in Australia (since 2005) as a visitor and subsequently as the holder of student and skilled visas. The evidence before the Tribunal is also that the applicant’s only close family members, including his aged parents, are Australian citizens and Permanent Residents residing in Australia.  It follows that the Tribunal accepts that the applicant will have connections with Australia and an outcome that requires him to depart Australia will be a source of great disappointment not only to him but also his family members, and that there would be significant psychological and emotional consequences.

23. The Tribunal acknowledges that the applicant has made an application for a Remaining Relative visa, and that the current estimated processing time for applications that meet the criteria to be queued is approximately 50 years. The Tribunal notes that according to the decision record, if the applicant’s visa is cancelled, although there will be some limitations on the visas for which he is eligible to apply, the applicant will have the option of remaining lawfully onshore by applying for a Bridging visa E and also making an application for work rights while his Remaining Relative visa application is pending. The Tribunal has had regard to the submission of the applicant’s representative that the cancellation ground under s.116(1)(a) of the Act is not intended to be punitive as it does not carry a three year ban. That is, it is not a cancellation for any wrongdoing, simply because of cessation of eligibility. It is submitted that the effect of the cancellation in this case will be unduly punitive, because the applicant would be left only with the option of a Bridging Visa E, with no work or travel rights for the next 50 years. The Tribunal accepts that if the applicant’s visa is cancelled, the Bridging Visa A (with work rights) granted in association with his Remaining Relative visa application will also cease and while he will have the right to apply for a Bridging Visa E, there is a risk that he will be unsuccessful with an application to have work rights attach to that visa. The Tribunal has considered that if the applicant is unable to work, while awaiting the outcome of a visa application with a significantly lengthy processing time, he could not expect his family to financially support him and would be forced to depart Australia.

24. The Tribunal notes that on 7 June 2019, the applicant applied for a visitor visa to replace his Subclass 482 visa, in order for him to remain in Australia with his only family members and to await the birth of his sister’s first child.  However, this application was refused by the Department because it deemed the applicant not to be a genuine visitor, having lodged a Remaining Relative application.  The information before the Tribunal indicates that given the refusal of his visitor visa application, the applicant is extremely concerned that while his Remaining Relative visa application is being processed he will not have the ability to re-enter Australia if his visa is cancelled and he is forced to return to the United Kingdom.  In addition, the applicant’s family members do not have either the financial means or ability to travel to the United Kingdom on a regular basis, which means that they and the applicant will be separated from each other.

25. In the circumstances of this case, the Tribunal attributes significant weight to this factor, which would weigh against the cancellation of the visa.

    Circumstances in which ground of cancellation arose

26. The Tribunal has considered that the ground for cancellation of the visa arose due to the breakdown of his relationship with Ms Goujon.  It has had regard to the information before it that despite attempts to salvage it, his relationship could not be restored.  In addition, it is submitted that there is no mechanism in the legislation that allows the applicant to request that his visa cease without cancellation, which leads to an unfair outcome for him.  While the Tribunal does not accept that the circumstances of the breakdown of the relationship were beyond the applicant’s control, there is no evidence that the circumstances of the breakdown of the relationship demonstrate bad faith on the part of the applicant, or an intent to circumvent or otherwise abuse immigration requirements.  The Tribunal gives this factor some weight against the cancellation of the visa. 

    Past and present behaviour of the visa holder towards the department

27. According to the decision record, there is no evidence that the applicant has been uncooperative towards the Department.  The Tribunal gives this factor some weight against the cancellation of the visa.

    Whether there would be consequential cancellations under s.140

28. According to the delegate’s decision record, the cancellation of the applicant’s visa would not result in the consequential cancellation of any dependant visa holders.

    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

29. The delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, s.48 of the Act means that he will have limited options to apply for further visas in Australia.  The Tribunal gives these consequences some weight against the cancellation of the 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

30. There is no evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations in this case.

    Any other relevant matters

31. The Tribunal has had regard to information before it that in 2009, the applicant was convicted of an offence and sentenced to a six month term of imprisonment.  It is submitted that in December 2009 a delegate under s.501 of the Act made a decision not to refuse the applicant a Class TU visa on the basis of character (and therefore that power has been spent), however, a Bridging Visa E operates in a different framework to the s.501.  It is submitted that Case Officers are directed to “apply rigorously” the discretionary ground for BVE cancellation under s.116(1)(g) at r.2.43(1)(p)(i) when a visa holder has criminal convictions, irrespective of the seriousness of the offence. It is submitted that this means that if the applicant’s visa is cancelled and he is granted a Bridging Visa E while his Remaining Relative visa application is pending, he would be subject to the above grounds for cancellation even if he does not commit any further offence and be of good character.

32. The Tribunal has carefully considered and weighed all of the relevant circumstances of the applicant in this case. The Tribunal considers that there are significant compassionate circumstances present in this matter. It also considers that the discretionary factors above indicate that the applicant should be given an opportunity to remain in Australia, with his family, to await a decision in respect of his Remaining Relative visa application, reverting to a Bridging Visa A (with work rights) after the natural expiry of his current Subclass 482 visa. 

33. Considering the circumstances of the case as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

34. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

    Nicola Findson
    Member