Adu (Migration)

[2020] AATA 149

Adu (Migration) [2020] AATA 149 (24 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Vicentia Yawa Adu

CASE NUMBER:  1920119

HOME AFFAIRS REFERENCE(S):          BCC2019/1785983

MEMBER:Catherine Carney-Orsborn

DATE:24 January 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 24 January 2020 at 2:21pm

CATCHWORDS

MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – ground for cancellation – fact or circumstance no longer exist – member of family unit – divorced – consideration of discretion – purpose of visa grant – credible witness – abusive relationship – denied opportunity to lodge application for a student visa – impact on applicant’s child and parents – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 July 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 485 (Temporary Graduate) 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 decision to grant the visa was based, wholly or partly, on a particular fact that is no longer the case or that 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 8 January 2020 to give evidence and present arguments.

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

5. 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

6. 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

7. 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.

8. The applicant was granted a cl.485 visa on the basis that she was a member of the family unit of the primary visa holder (her husband).  In April 2019 the primary visa holder contacted the department and advised that the marriage had ended in divorce.  The applicant agrees that the marriage has ended. 

9. 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

10. 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’.

11. The applicant provided written statements, submissions and oral evidence to the Tribunal.

12. At hearing she recounted that the main purpose of the grant of the visa was so that she could support her husband.  She maintains that she worked and paid for his study.  She cooked for him and continued to support him even after he was asked to leave her step sister’s home due to his abusive behaviour towards her and others in the home.

13. She did not leave with him as he was starting to physically abuse her however she claims that she continued to provide him with money, food and was intimate with him when she visited him at his new home.

14. She provided statements from her family and friends of her brother-in-law which supports her claim.

15. They all indicate that she was a devoted wife to her husband and did not deserve how she was treated.

16. The Tribunal put to her that this purpose no longer exists and therefore she does not have a need to be in Australia.

17. The applicant’s evidence is that she is now in a new relationship with someone who is a permanent resident.  She is working and is a good employee.  She is caring for elderly dementing persons and she has lodged an application for a spouse visa.

18. She claims that she needs to keep working as she sends money to Ghana to support her child and her parents who are caring for her child.

19. She claims that if she is forced to return, then she will no longer be able to pursue her dream of a career in nursing in Australia and her child in Ghana will suffer.  She claims that as a single mother there is no opportunity for her to work in Ghana.

20. She gave credible evidence that she was used by her ex-husband.  She provided evidence of a joint bank account into which her wages were deposited.  Her ex-husband then transferred large amounts as they accrued to pay for his education and needs.

21. She claims that he is now working as an accountant and is in a relationship with another woman.  She feels that she was used and then abandoned by her ex-husband after he achieved his education.

22. She gave consistent evidence that she was not aware that he had divorced her.  She does not know how he managed to divorce her in Ghana without her knowledge.   She has been shocked by how she was treated and is currently seeking counselling to deal with the depression.  She claims that he continued to use her when he must have been already seeking to divorce her.  He attended at her sister’s house on special occasions and stayed the night when it was too late.

23. The applicant supplied evidence from her brother and sister-in-law and friends.  They attest to the ex-husband becoming violent and mistreating the applicant.  She states that her family wanted her to seek assistance from the police; however she loved her ex-husband and she did not want to get him into any trouble.  She continued to support him.

24. She was shocked when he rang her and told her to check her email.  She checked her email and found a divorce certificate.  She states that she has not heard from him since.

25. She has since formed a new relationship.  She states that the new husband is a friend of her brother-in-law. 

26. The applicant asks that her visa not be cancelled so that she will have time to lodge an application for a student visa.  She wishes to study nursing and her present partner has indicated he will support her in her studies.

27. The Tribunal allowed the applicant further time to provide statements from her employer and new partner.  The applicant provided further statutory declarations from third parties and her current husband.  They all attest to her being mistreated by her first husband.

28. The applicant provided a reference from her employer.  Her employer stated that she was a valued employee and they would be supporting her ambition to become a registered nurse.

29. There is nothing before the Tribunal to indicate that the applicant has not complied with her visa conditions or anything adverse in relation to her behaviour with the Department.

30. The applicant claims that because of the way she was treated she was denied an opportunity to apply for her own student visa.  She was unaware that her ex-husband would divorce her and leave her in a vulnerable position.

31. The applicant presented as credible, and she provided corroborating evidence including bank statements which evidence transfers to her ex-husband.  She also provided evidence of her work history.

32. Numerous statements were provided from independent persons supporting her claims.  They all agree she was badly treated by her ex-husband.

33. The Tribunal accepts that she was in an abusive relationship and was denied any opportunity to lodge her own application for a student visa by her ex-husband not informing her that he was organising a divorce.

34. The Tribunal has considered the supplementary evidence from her present partner and employer.

35. The Tribunal further takes into account the impact on the applicant’s child and parents in Ghana if she is denied the opportunity to study and earn an income in Australia.

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

    DECISION

37. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

    Catherine Carney-Orsborn
    Member